scholarly journals The Legal Fiction of a Genuine Link as a Requirement for the Grant of Nationality to Ships and Humans – the Triumph of Formality over Substance?

2017 ◽  
Vol 17 (1) ◽  
pp. 167-191 ◽  
Author(s):  
Gotthard Mark Gauci ◽  
Kevin Aquilina
Keyword(s):  
Legal Systems ◽  
Legal Regime ◽  
National State ◽  
Functional Dimension ◽  
Legal Fiction ◽  
International Court ◽  
The Relationship ◽  
High Seas

SummaryThis paper discusses nationality of a person, whether physical or legal, and compares and contrasts the international legal regime which regulates the nationality of both persons. Whilst humans are granted nationality because they are citizens of a state to which they owe allegiance, in the case of areswhich enjoy nationality – such as a ship – the relationship between such aresand its national state is based on a functional dimension. A ship oftentimes navigates in areas beyond state jurisdiction (such as on the high seas) ending up in a legal vacuum if she enjoys no nationality to regulate its behaviour and whatever happens on board that ship during its extra-territorial voyages. The authors thus discuss the juridical nature of nationality, nationality of aresand of humans, and reflect upon the recent sale by states of their nationality to non-citizens thereby shifting human nationality closer to the commodification of nationality of which ships are a traditional instance. It concludes that nationality of ships and of humans has in some legal systems moved away from the classical International Court of Justice’s Nottebohm case requirement of a pre-existing genuine link to one where nationality is reduced to a commodity.

Legal Systems and Variance in the Design of Commitments to the International Court of Justice

2009 ◽  
Vol 26 (2) ◽  
pp. 164-190 ◽  
Author(s):  
Sara McLaughlin Mitchell ◽  
Emilia Justyna Powell
Keyword(s):  
International Law ◽  
Islamic Law ◽  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Bilateral Treaties ◽  
The Relationship

This paper explores the relationship between domestic legal systems and the design of commitments to the International Court of Justice (ICJ). Empirical analyses demonstrate that civil law states are more willing to recognize the compulsory and compromissory jurisdiction of the World Court than common law or Islamic law states. Common law states place the highest number of reservations on their optional clause declarations, with the majority of those restrictions relating to specific areas of international law. Civil law states typically embed compromissory clauses in multilateral treaties, while common and Islamic law states prefer recognition of the ICJ's jurisdiction through bilateral treaties.

A Comparative Overview of the Fair Wear and Tear Exception: the Duty of Holders of Temporary Interests to Preserve Property

2002 ◽  
Vol 6 (1) ◽  
pp. 85-100
Author(s):  
Raffaele Caterina
Keyword(s):  
Common Core ◽  
Complete Solution ◽  
Roman Law ◽  
Private Ownership ◽  
Legal Systems ◽  
Personal Rights ◽  
Wear And Tear ◽  
Long Life ◽  
The Law ◽  
The Relationship

“A system of private ownership must provide for something more sophisticated than absolute ownership of the property by one person. A property owner needs to be able to do more than own it during his lifetime and pass it on to someone else on his death.”1 Those who own things with a long life quite naturally feel the urge to deal in segments of time. Most of the owner's ambitions in respect of time can be met by the law of contract. But contract does not offer a complete solution, since contracts create only personal rights. Certain of the owner's legitimate wishes can be achieved only if the law allows them to be given effect in rem—that is, as proprietary rights. Legal systems have responded differently to the need for proprietary rights limited in time. Roman law created usufruct and other iura in re aliena; English law created different legal estates. Every system has faced similar problems. One issue has been the extent to which the holder of a limited interest should be restricted in his or her use and enjoyment in order to protect the holders of other interests in the same thing. A common core of principles regulates the relationship between those who hold temporary interests and the reversioners. For instance, every system forbids holder of the possessory interest to damage the thing arbitrarily. But other rules are more controversial. This study focuses upon the rules which do not forbid, but compel, certain courses of action.

ADMINISTRATIVE AND LEGAL STATUS OF THE CAPITAL OF UKRAINE - THE HERO CITY OF KYIV AS A GUARANTEE OF THE RIGHTS OF CITIZENS OF UKRAINE AND THE TERRITORIAL COMMUNITY OF THE CITY

2017 ◽  
Author(s):  
Oleksii Chepov ◽  
Keyword(s):  
Legal Status ◽  
Modern World ◽  
Legal Regime ◽  
Legal Doctrine ◽  
City Councils ◽  
The Social ◽  
District Management ◽  
Definition Of ◽  
The Relationship ◽  
The City

The qualitative and clear definition of the legal regime of the capital of Ukraine, the hero city of Kyiv, is influenced by its legislative enshrinement, however, it should be noted that discussions are ongoing and one of the reasons for the unclear legal status of the capital is the ambiguity of current legislation in this area. Separation of the functions of the city of Kyiv, which are carried out to ensure the rights of citizens of Ukraine and the functions that guarantee the rights of the territorial community of the city of Kyiv. In the modern world, in legal doctrine and practice, the capital is understood as the capital of the country, which at the legislative level received this status and, accordingly, is the administrative and political center of the state, which houses the main state bodies and diplomatic missions of other states. It is the identification of the boundaries of the relationship between the competencies of state administrations and local self-government, in practice, often raises questions about their delimitation and ways of regulatory solution. Peculiarities of local self-government in Kyiv city districts are defined in the provisions of the Law on the Capital, which reveal the norms of the Constitution in these legal relations, according to which the issue of organizing district management in cities belongs to city councils. Likewise, it is unregulated by law to lose the particularity of the legal status of the territory of the city. It should be emphasized that the subject of administrative-legal relations is not a certain administrative-territorial entity, but the social group is designated - the territorial community of the city of Kiev, kiyani. Thus, the provisions on the city of Kyiv partially ignore the potential of the territorial community.

Global Governance of Deep-Sea Fisheries

2004 ◽  
Vol 19 (3) ◽  
pp. 289-298 ◽  
Author(s):  
Moritaka Hayashi
Keyword(s):  
Global Governance ◽  
Deep Sea ◽  
Law Of The Sea ◽  
Governance System ◽  
Legal Regime ◽  
Short Term ◽  
Fish Stocks ◽  
The Law ◽  
Global Agreement ◽  
High Seas

AbstractThis article considers the gaps in the existing legal regime on deep-sea fisheries and explores a more effective global governance system. It is proposed that a new global agreement, modeled on the 1995 UN Fish Stocks Agreement, be negotiated covering deep-sea stocks as well as other high seas resources, so that all fisheries on the high seas may be covered. The proposed agreement would complete the gaps in high seas fisheries regime and serve as an effective link between the UN Convention on the Law of the Sea and regional fisheries bodies. As a short-term measure, FAO should prepare a set of guidelines covering all types of deep-sea fisheries, including shared and transboundary stocks as well as discrete high seas stocks. In addition, FAO's Committee on Fisheries should be strengthened in its global governance role, including co-ordination of all regional fisheries bodies

Global Regulatory Standards in Environmental and Health Disputes

2021 ◽  
Author(s):  
Caroline E. Foster
Keyword(s):  
International Law ◽  
Dispute Settlement ◽  
International Court Of Justice ◽  
Regulatory Standards ◽  
International Court ◽  
Challenges And Opportunities ◽  
The Status ◽  
Private Actors ◽  
Fragmentation Of International Law ◽  
The Relationship

Potentially global regulatory standards are emerging from the environmental and health jurisprudence of the International Court of Justice, the World Trade Organization, under the United Nations Convention on the Law of the Sea, and investor-state dispute settlement. Most prominent are the three standards of regulatory coherence, due regard for the rights of others, and due diligence in the prevention of harm. These global regulatory standards are a phenomenon of our times, representing a new contribution to the ordering of the relationship between domestic and international law, and inferring a revised conception of sovereignty in an increasingly pluralistic global legal era. However, considered with regard to jurisprudential theory on relative authority, the legitimacy of the resulting ‘standards-enriched’ international law remains open to question. Procedurally, although they are well-placed to provide valuable input, international courts and tribunals should not be the only fora in which these standards are elaborated. Substantively, challenges and opportunities lie ahead in the ongoing development of global regulatory standards. Debate over whether regulatory coherence should go beyond reasonableness and rationality requirements and require proportionality in the relationship between regulatory measures and their objectives is central. Due regard, the most novel of the emerging standards, may help protect international law’s legitimacy claims in the interim. Meanwhile, all actors should attend to the integration rather than the fragmentation of international law, and to changes in the status of private actors.

scholarly journals 4 The Court and Domestic and International Legal Systems

2020 ◽  
Author(s):  
Nussberger Angelika
Keyword(s):  
Human Rights ◽  
European Convention ◽  
Vienna Convention ◽  
Legal Systems ◽  
Member States ◽  
Supreme Courts ◽  
European Court ◽  
Set Up ◽  
The One ◽  
The Relationship

This chapter assesses the relationship between the European Court of Human Rights (ECtHR) and domestic and international legal systems. With the ratification of the European Convention on Human Rights (ECHR), the Member States accept to be bound by final judgments of the Court and to implement them in their domestic legal systems. The Convention system does not make any difference as to the set-up of the national legal system or to the hierarchical position accorded to the Convention in national law. This is in line with a purist international law perspective, summarized in Article 27 of the Vienna Convention of the Law on Treaties: ‘A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.’ However, from the constitutional law perspective of the Member States, the situation is much more multi-faceted and complex. While it is generally accepted that the Court's judgments are binding and have to be implemented, the relationship between the Convention and the national constitutions as well as between their respective guardians, the Court on the one hand and national constitutional or supreme courts on the other hand, is not seen as one-way and hierarchical, but nuanced and differentiated. Implementation of judgments is accepted to be a duty, but not necessarily without exceptions. The chapter then considers the relationship between the ECtHR and the European Court of Justice (ECJ).

scholarly journals South African Marriage in Policy and Practice: A Dynamic Story

2019 ◽  
Author(s):  
Michael W. Yarbrough
Keyword(s):  
South African ◽  
Theoretical Approach ◽  
Family Relationship ◽  
Legal Regime ◽  
Policy And Practice ◽  
Scholarly Research ◽  
The Law ◽  
The Relationship ◽  
Dynamic Interplay

Law forms one of the major structural contexts within which family lives play out, yet the precise dynamics connecting these two foundational institutions are still poorly understood. This article attempts to help bridge this gap by applying sociolegal concepts to empirical findings about state law’s role in family, and especially in marriage, drawn from across several decades and disciplines of South Africanist scholarly research. I sketch the broad outlines of a nuanced theoretical approach for analyzing the law-family relationship, which insists that the relationship entails a contingent and dynamic interplay between relatively powerful regulating institutions and relatively powerless regulated populations. Accordingly, while my argument broadly distinguishes the more repressive regimes of colonialism and apartheid from the more expansive post-apartheid legal regime, it also partially undoes that periodisation by highlighting limits and evasions of repressive law and obstacles impeding access to post-apartheid law’s expansive promises.

scholarly journals The Relationship between Performance of the Administrative System and National Authority of Governments: An Islamic Point Of View

2018 ◽  
Vol 6 (4) ◽  
pp. 5-13
Author(s):  
Mahtab Jafari
Keyword(s):  
Practical Purpose ◽  
Two Dimensions ◽  
Point Of View ◽  
Theoretical Research ◽  
Administrative System ◽  
National Authority ◽  
Functional Dimension ◽  
Library Resources ◽  
The Relationship ◽  
Do So

Each government consists of two dimensions: 1) a sructural dimension that involves policy- and decision-making bodies and, 2) a functional dimension that is a set of government institutions and administrations. Also, national authority in a country is an outcome of three components, including legitimacy, acceptance, and efficiency of its government. The authority of governments is not merely limited to their structural legitimacy and acceptance; but, their functional dimension and the performance of their administrations also play a crucial role in building and strengthening their legitimacy. Therefore, the aim of the present study is to investigate how the administrative system of a government affects its national authority, with an emphasis on the Islamic point of view. To do so, this research has been carried out within the framework of theoretical research with practical purpose. The research method of the current study was descriptive-analytical. In the present study, the relationship between two variables – namely, “administrative system” and “national authority”– has been investigated within the framework of causal research. Due to the theoretical nature of this study, the resources used mostly include documents and library resources. The results of this study indicate that there is a direct and causal relationship between the national authority of governments (effect) and the performance of their administrative system (cause). Also, this relationship reveals how the administrative system affects national authority.

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