scholarly journals General issues of the exercise of jurisdiction in the process of application of law enforcement measures at sea

2020 ◽  
pp. 106-118
Author(s):  
A. P. Glazova
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Research Process ◽  
The State ◽  
Customary Law ◽  
Research Approach ◽  
Legal Norms ◽  
Application Of Law ◽  
Territorial Jurisdiction ◽  
The Law

INTRODUCTION. Currently, states can apply a whole range of law enforcement measures at sea in order to prevent such unlawful phenomena as piracy, slave trade, drug trafficking, migrant smuggling, etc. However, the problem of the exercise of jurisdiction by states within various maritime areas is the main sticking point during the implementation of these measures. In an attempt to exercise the law enforcement function at sea, the state can't ignore the fact that its ability to create legal norms and ensure their effective implementation depends not only on its will as a sovereign, but also on the restrictions imposed by international law. Therefore, maintaining a balance between limiting the “territorialization” of maritime areas and the need to carry out a law enforcement function logically entails the need to determine the nature and content of the concept of “jurisdiction of the state” within different maritime areas, as well as to identify specific features of this legal category. The present article focuses on this and other related issues.MATERIALS AND METHODS. Historical and comparative analysis along with dogmatic research approach were used in the research process and the entire research is well grounded in focusing on the norms of international treaty law and customary law. In addition to that this research focuses on the norms of national law governing issues related to the application of law enforcement measurement at the sea. Apart from those given material and methodical inputs, the doctrinal works of the relevant jurists have been used in this research.RESEARCH RELULTS. The author comes to an alternative conclusion that territorial jurisdiction within the maritime territory is not absolute, which is due, apparently, the principle of freedom of the high seas which have a longer support by the international community. The definition of jurisdiction as extraterritorial is not self-sufficient, since in case of conflict of jurisdictions, additional legal criteria are required to resolve such a conflict. The classification of extraterritorial jurisdiction depending on the principles on which it is based also does not solve the problem, since some principles, such as protective or universal, in turn, require additional criteria in order to become a self-sufficient tool to overcome legal uncertainty. The author notes that the ability to exercise territorial jurisdiction within maritime areas, as a rule, determines the ability to exercise legislative and executive jurisdiction, which are also not absolute. The exercise of extraterritorial legislative or executive jurisdiction at sea is potentially permissible only on the basis of international law to solve a specific function, for example, law enforcement.DISCUSSION AND CONCLUSION. The main problem of the varieties of jurisdiction proposed by in- ternational legal science is that each of them only supplements each other, describing a possible choice, but not explaining why a particular choice should be preferred in case of conflict. It is obvious that current uncertainty has created some severe impacts upon the institution of law enforcement measures at sea as a result of the absence of standards for enforcement measures that could make a balance to the mechanism. Hence the law enforcer has to be cautious with a number of factors in deciding the implementation of law enforcement measures within the sea.

Interstitial rules and the contested application of human rights law and the laws of war in counterterrorism

2016 ◽  
Vol 5 (2) ◽  
pp. 207-237 ◽  
Author(s):  
MICHAEL E. NEWELL
Keyword(s):  
Human Rights ◽  
Law Enforcement ◽  
International Law ◽  
War On Terror ◽  
International Human Rights Law ◽  
Human Rights Law ◽  
Laws Of War ◽  
Legal Norms ◽  
Drone Strikes ◽  
The Law

Abstract:The laws of war and international human rights law (IHRL) overlap, often with competing obligations. When two or more areas of the law overlap, political agents attempt to address these areas of ambiguity with interstitial rules. However, a lack of consensus on interstitial rules can destabilise the law, leading to increased contestation of legal norms and principles. Such is the case for international law in counterterrorism. Prior to the 11 September 2001 attacks (9/11), international agreements and US domestic practices placed counterterrorism within the framework of law enforcement. After 9/11, the Bush Administration replaced law enforcement with armed conflict and the laws of war as the dominant paradigm for counterterrorism, but this decision, among other legal justifications in the War on Terror, has been contested by the international legal community. As IHRL still applies in law enforcement operations, international law in counterterrorism now sits within a contested overlap of IHRL and the laws of war. The contestation of US policies in the War on Terror, including the use of drone strikes in particular, is a product of this unresolved overlap and the lack of clear interstitial rules. Lacking these rules, US counterterrorism policies risk undermining the rule of law.

scholarly journals THE APPLICATION OF LAW, GOING TO THE LAW ENFORCEMENT (AN ANALIZYNG OF THE RIIL SCIENTIFIC)

2018 ◽  
Vol 5 (2) ◽  
pp. 134
Author(s):  
Faisol Azhari
Keyword(s):  
Law Enforcement ◽  
Social Policy ◽  
Social Welfare ◽  
Social Phenomena ◽  
Legal Norms ◽  
Application Of Law ◽  
The Social ◽  
The Law

Law or law order are not made to be observed and to be logical rational study only but to be done. Of course the application of law in society gets concretization proccess where the regulation of general and abstract normative law given for special, concrete and casuistic problems. It is not enough to implement limitted law on legal norms only normatively in societ, we have to observe more on social phenomena to implement the law flexibly. The implementation of law which is able to creat efective communication between the members of society, and not release from the final objective or the main goal of the legal politic namely to reach social welfare and protection as the integral part of the social policy, that is the implementation of law into the law enforcement.

scholarly journals PENERAPAN DIVERSI SEBAGAI IMPLEMENTASI HAK ASASI ANAK BERKONFLIK DENGAN HUKUM

2020 ◽  
Vol 3 (1) ◽  
pp. 38
Author(s):  
Luh Sri Widi Artini ◽  
Putu Bagus Sabda Pramesti
Keyword(s):  
Law Enforcement ◽  
Qualitative Method ◽  
Law Enforcement Officers ◽  
The State ◽  
Research Approach ◽  
Best Interest ◽  
Literature Study ◽  
Special Concern ◽  
The Law ◽  
The Government

A child who commits a legal offence is a special concern from the state. Diversi is the application of versioning is an effort from the government to protect the child from negative stigmatization and based on the best needs and interests for children, by seeking a version through the approach of Restorative justice. This research aims to determine how the implementation is versioned as a child's human rights implementation and what constraints are faced by related parties in the running of versioning. This research uses a qualitative method of research approach with a literature study technique that is further analyzed qualitatively. Children are trusting and give that must be guarded because the child is the hope of the state as a nation's successor so that children should be protected. The results of this study show that versioning is one of the government's efforts to protect the child's rights from adverse influences and the stigmatization of the community and is done for the best interest of the child. Obstacles faced in the form of lack of the presence and the existence of a sectoral ego between the law enforcement officers so that the version has not run optimally and the need to socialize about the law of the Child criminal system Community.

scholarly journals Intrusion of international law into the national legal system

2021 ◽  
Vol 5 (1) ◽  
pp. 40-57
Author(s):  
V. F. Anisimov ◽  
Yu. V. Truntsevskiy
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Legal System ◽  
The State ◽  
Point Of View ◽  
Legal Systems ◽  
Foreign Law ◽  
National Legal System ◽  
International Obligations ◽  
The Law

The subject of the research is the peculiarities of the implementation of international law in national legal systems, the law enforcement practice of the implementation of international legal obligations of the state, doctrinal approaches to the interaction of the norms of international and domestic law. The purpose of the article is to confirm or disprove the hypothesis that the limits, forms and methods of the ex-ante intrusion of international law into the national legal system are determined not only as a result of the agreed will of States, but also against such will, under the influence of the interests of individual States or their political blocs that occupy a dominant position in an international organization. Methodology. The authors use such general theoretical and specific scientific methods as comparative analysis, generalization, interpretation and classification as well as systemic analysis and formal logical methods. The main results. The forms and methods of intrusion of international law into the legal systems are diversified. International law is not limited to interstate relations. Global processes require the development of new scientific approaches to understanding the processes of intrusion of international law into the legal systems of States. These processes require the study of the forms and methods of the impact of international law and international institutions on the national legal order. States are sometimes forced to implement measures developed in the international implementation mechanism (due to the need for international financial assistance as well as the inability to single-handedly defeat internal corruption, create a favorable international image, etc.). The international legal invasion exist already ex – post through the decisions of international judicial bodies or the assertive recommendations of international organizations. Their demands are made not just to comply with international obligations, but to change national legislation. The implementation of the norms of international law in national legal systems should be carried out at the domestic level just as much as it is necessary to fulfill these international obligations. The law enforcement practice in the state is based solely on national principles of law, and it is unacceptable to comply with the requirements from the outside to change them from the point of view of the independence of the state. It is the exclusive right of each State to determine the content of acts of interpretation of international bodies in relation to the decisions and actions of specific States from the point of view of their national interests. We prove that every state has the important right to determine the limits of the invasion of international law in their national legal system: the contents of implementing legislation; the completeness of implementation of the decisions and recommendations of international bodies and courts; the recognition of the extraterritorial validity of foreign law and forms of its implementation. Conclusions. The fundamental principle of international law- pacta sunt servanda – is transforming into a practical imperative – national legislation must change. This is due to the recognition of the jurisdiction of international judicial bodies. This is due to the extraterritorial effect of foreign law; it is connected with the transnational character of the law of international integration entities. This is due to the inability of individual States to resist exponential corruption. The continuous nature of the intrusion of international law into national legal systems is reflected in the various methods of such interference. The article proves the importance of each state having the right to independently determine the limits of the intrusion of international law into their national legal system.

Countermeasures

2013 ◽  
Author(s):  
Joaquín Alcaide Fernández
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Dispute Settlement ◽  
Pollution Prevention ◽  
Physical Space ◽  
The State ◽  
The Other ◽  
Judicial Decisions ◽  
Self Help ◽  
The Law

As used in modern practice, judicial decisions, and literature, the term “countermeasures” covers the main part of the classical subject of “reprisals,” to which the first monographs of international law were devoted in the 14th century (B. de Sassoferrato and G. de Legnano). Two features used to be attached to countermeasures: (a) they are unilateral or individual measures adopted directly and independently by a state that takes the law into its own hands as based on the state’s “subjective” qualification of another state’s prior act as illegal (“self-help” or “self-protection”); (b) the measures would be essentially illegal if not for the fundamental prerequisite of the “objective” existence of a prior wrongful act committed by the state against which the countermeasures are adopted, and for the fulfillment of other requirements, substantive limits, and procedural conditions. In legal literature sometimes countermeasures not only include these measures but also those called “retorsion”: these are unfriendly and perhaps also retaliatory but not illegal irrespective of the conduct of the state these measures are taken against. The measures of retorsion have fallen outside the scope of the International Law Commission’s (ILC’s) work on international responsibility. On the other hand, countermeasures are not always differentiated from “sanctions” (or institutionalized coercive measures), and from unilateral measures to enforce “sanctions.” The development of judicial and institutional processes for furthering compliance and enforcement in general international law has not yet excluded such unsatisfactory legal remedies, as states’ practice and opinio juris (or the judicial decisions) prove. Legal scholars are also practically unanimous to recognize the admissibility of law enforcement through countermeasures, whether they consider it expressly or implicitly an exception or a right/faculty (or duty) of states. And so, this recognition is extended to international organizations. The ILC has taken note of all that, having contributed to the more precise development and definition of the countermeasures’ legal regime. The debates have been mainly on the conditions and restrictions to neutralize or reduce the risk of abuse, less on the pros and cons of the codification of that regime. Concerning the legality and legitimacy of countermeasures, there are other requirements related to, inter alia, their object (law-enforcement, not punishment), necessity and proportionality, temporary and reversible character, or the other obligations where fulfillment cannot be suspended as a countermeasure, all of them addressed by the ILC’s draft articles on responsibility. Alongside the recurrent renewal of the discussion relating to the illegality of reprisals/countermeasures involving the use of force, there are probably two other controversial issues, as highlighted during ILC’s work: the interrelationship between recourse to means of dispute settlement and to countermeasures and, in relation to erga omnes obligations and peremptory norms, the entitlement (right or duty) of noninjured states to adopt individual countermeasures. Although the term “countermeasure” has been used since at least 1923, as a general concept, referring to domains or disciplines with little or no relation to international law (medicine, materials or electromagnetic engineering, pollution prevention, defense and weapons), in recent years some practice and several academic writings attempt to adapt existing international law, including the law governing the self-help resources available to the victim states (self-defense, retaliation, regression, and the right to take countermeasures), from the kinetic (physical) space to a new one (“the fifth domain”), namely, the cyber domain.

scholarly journals PERJANJIAN EKSTRADISI DALAM PENEGAKAN HUKUM TINDAK PIDANA KORUPSI DI INDONESIA

Yustitia ◽  
2020 ◽  
Vol 6 (2) ◽  
pp. 180-200
Author(s):  
Nabella Rona Sahati ◽  
Kodrat Alam
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Research Method ◽  
Diplomatic Relations ◽  
Legal Research ◽  
Legal Norms ◽  
The World ◽  
National Jurisdiction ◽  
Analytical Research ◽  
The Law

Extradition Agreeament (treaty) provides facilities for countries that have an agreement, where the agreement is to act against, arrest and prosecute criminals in a country who have fled to another country outside national jurisdiction. The presence of the perpetrator in another country is to avoid attempts to arrest him in connection with the crime he has committed in the country of origin. So by running out of the country, this means that there are other countries whose interests are harmed because they cannot arrest the perpetrator, in which the perpetrator has committed a violation of the law based on the location where the crime was committed (locus delicti). One of them is that the criminal case of corruption is considered a threat of extraordinary crime that harms all people in the world, in upholding the law of corruption in which the perpetrator has fled abroad so that he feels safe and free from a crime he has committed. So extradition is very necessary for the perpetrators of corruption who have fled to other countries. From the background that has been explained, the following problems can be made inventory, namely 1) what is the position of the extradition agreement in international law related to criminal acts of corruption and 2) how is the implementation of extradition agreements against perpetrators of corruption in Indonesia. This study uses a normative juridical research method, namely legal research that refers to legal norms contained in statutory regulations with descriptive analytical research specifications with the aim of obtaining an overview of the application of extradition agreements to perpetrators of corruption in Indonesia based on Law Number 1 of 1979 of Extradition. The results in this research have shown that indeed there have been regulations regarding extradition treaties but it has been long enough and it is necessary to have regulatory reforms according to existing needs, furthermore it is necessary to improve diplomatic relations because law enforcement of criminal acts of corruption which involves cooperation between two countries is not only achieved through extradition treaties, but also good diplomatic relations.

scholarly journals Theoretical Grounds of Law Enforcement: Concepts, Features, Types

2019 ◽  
pp. 33-42
Author(s):  
Volodymyr NAHNYBIDA
Keyword(s):  
Law Enforcement ◽  
The Rule Of Law ◽  
Legal Norms ◽  
Application Of Law ◽  
Legal Relationship ◽  
Last Stage ◽  
The Law ◽  
Constituent Elements ◽  
Theoretical Issues ◽  
Enforcement Activity

The article explores the general theoretical issues of the content and features of law enforcement, examines the constituent elements of the law enforcement mechanism. It is summarized that the complexity and nature of the legal subject's actions may give rise to the exercise of the law in the form of adherence, performance, use or application of law. The author emphasizes that the application or enforcement of law is a form of direct realization of the law, which provides for the implementation of prescriptions of legal norms in relation to specific persons — subjects of law within the legal relations of which they are parties. The peculiarities of such features of law enforcement activity are analyzed in detail as: its state-power character; expression of law enforcement activity in the active actions of law enforcement entities aimed at the emergence, alteration or termination of legal relationships; implementation of enforcement in a specially stipulated by rules of law order on the basis of fixed procedures and in accordance with clear procedural sequence; the result of enforcement is always the issuance of an enforcement act; such activities are directed towards a specific range of entities; in the course of enforcement, legal qualification is exercised — the interpretation of legal norms, interpretation of their content in order to identify the rights and obligations of participants in legal relations from the standpoint of the applicable legal norms. Attention is also paid to the stages of the law enforcement process: preparatory (establishing and analyzing the facts of the case); stage of legal qualification (choice of the rule of law and establishing the authenticity of its text); the stage of decision-making in a case and its implementation in a law enforcement act. It is argued that the last stage of law enforcement is to formulate, by the results of the previous stages, the relevant legal conclusions, which are embodied in an individual legal act — decision, resolution, order, etc. In this case, the nature of the enacted acts of law enforcement may have a dual meaning, since in some cases it may be acts in which certain circumstances, legal facts, rights and / or obligations of the participants in the legal relationship are ascertained or confirmed, and in others, acts establishing new obligations for such participants.

scholarly journals PERLINDUNGAN DAN PELESTARIAN LINGKUNGAN LAUT MENURUT HUKUM INTERNASIONAL

2020 ◽  
Vol 4 (2) ◽  
pp. 161
Author(s):  
Dewa Gede Sudika Mangku
Keyword(s):  
Law Enforcement ◽  
Environmental Monitoring ◽  
International Law ◽  
Marine Environment ◽  
Technical Assistance ◽  
The State ◽  
Law Of The Sea ◽  
Legal Research ◽  
Research Results ◽  
The Law

Issues relating to the protection of the marine environtment are of concern, including by international law. This research discusses the prtection and preservation of the marine environment according to international law. This research is a normative legal research. The approach used is the statutory approach. The research results show that the protection and preservation of the marine environment receives serious attention by international law, especially through regulation through the 1982 Nations Convention on the Law of the Sea (UNCLOS) which fully regulates the protection and preservation of the marine environment in a Chapter, namely Chapter XII which consists of 45 articles (192-237). In this Chapter there are several important aspects relating to the protection and preservation of the marine environment, namely the existence of general obligations of countries in terms of protecting the marine environment (Articles 192-160), obligations of the state in terms of pollution (Articles 194-196), global cooperation and in the framework of protecting the marine environment (Articles 197-201), technical assistance (Articles 202-203), environmental monitoring and analysis (Articles 204-206), making laws and regulations and accompanying law enforcement (Articles 207-234), responsibilities and compensation obligations (Article 235), immunity rights (Article 236), obligations under other conventions concerning the protection of the marine environment (Article 237). Persoalan berkaitan perlindungan lingkungan laut menjadi perhatian, termasuk oleh hukum internasional. Penelitian ini membahas perlindungan dan pelestarian lingkungan laut menurut hukum internasional. Penelitian ini adalah penelitian hukum normatif. Pendekatan yang digunakan adalah pendekatan perundangan-undangan. Dari hasil penelitian didapatkan hasil bahwa perlindungan dan pelestarian lingkungan laut mendapatkan perhatian serius oleh hukum internasional, terutama melalui pengaturan melalui Nations Convention on The Law of the Sea (UNCLOS) 1982 yang secara lengkap mengatur mengenai perlindungan dan pelestarian lingkungan laut dalam suatu Bab, yaitu Bab XII yang terdiri atas 45 pasal (192- 237). Dalam Bab tersebut terdapat beberapa aspek penting yang berkaitan dengan perlindungan dan pelestarian lingkungan laut, yaitu adanya kewajiban umum negara-negara dalam hal perlindungan lingkungan laut (Pasal 192- 193), kewajiban negara dalam hal pencemaran (Pasal 194-196), kerjasama global dan regional dalam rangka perlindungan lingkungan laut (Pasal 197- 201), bantuan teknik (Pasal 202-203), monitoring dan analisa lingkungan (Pasal 204-206), pembuatan peraturan perundang-undang disertai penegakan hukumnya (Pasal 207-234), tanggung jawab dan kewajiban ganti rugi (Pasal 235), hak kekebalan (Pasal 236), kewajiban-kewajiban berdasarkan konvensi lain mengenai perlindungan lingkungan laut (Pasal 237).

scholarly journals Socio-Legal Study of Community Participation in Restorative Justice of Children in Conflict with the Law in Indonesia

2020 ◽  
Vol 10 ◽  
pp. 293-298
Author(s):  
Nur Rochaeti ◽  
◽  
Nurul Muthia
Keyword(s):  
Community Participation ◽  
Restorative Justice ◽  
Criminal Law ◽  
The State ◽  
Customary Law ◽  
Equal Treatment ◽  
Research Approach ◽  
Legal Cases ◽  
Legal Study ◽  
The Law

The state has the obligation and authority to protect children. This is regulated in Article 28 of the 1945 Constitution of the Republic of Indonesia, that everyone has the right to just recognition, guarantee, protection, and legal certainty as well as equal treatment before the law, namely that the State is obliged to protect every citizen regardless. The problem in this paper is how is the socio-legal study of restorative justice in the Juvenile Criminal Justice System in Indonesia. The method used in this research is a socio-legal research approach. This study found that the customary institution in Padang, West Sumatra is factually recognized in its existence in the customary criminal law of the Dua Puluah Customary Law. Moreover, the results showed that particularly in regulating the provisions of the material criminal law, in the Salapan Law (eight), and the Kanayatn Dayak community. implementing the restorative justice mechanism is resolved by deliberation and is family in nature in a Barukupm Adat forum, which involves all parties, both from functionaries, children of perpetrators and their families, victims and their families as well as witnesses who know the case, and pay attention to the rights of community members within the boundaries the agreed boundaries to be obeyed, based on the values and norms that exist in society. This study offers relevance in the context of non-legal settlement in cases of restorative justice in cases of children in conflict with the law in Indonesia. This study underscores expediency to provide greater space for customary entities to resolve children's cases non-legally and to increase community participation in the resolution of legal cases involving children.

Slavery and Ransom

2018 ◽  
Author(s):  
Will Smiley
Keyword(s):  
Eighteenth Century ◽  
Ottoman Empire ◽  
Young Men ◽  
Individual Characteristics ◽  
The State ◽  
Customary Law ◽  
Late Eighteenth Century ◽  
Late Eighteenth ◽  
The Law

This chapter explores captives’ fates after their capture, all along the Ottoman land and maritime frontiers, arguing that this was largely determined by individuals’ value for ransom or sale. First this was a matter of localized customary law; then it became a matter of inter-imperial rules, the “Law of Ransom.” The chapter discusses the nature of slavery in the Ottoman Empire, emphasizing the role of elite households, and the varying prices for captives based on their individual characteristics. It shows that the Ottoman state participated in ransoming, buying, exploiting, and sometimes selling both female and male captives. The state particularly needed young men to row on its galleys, but this changed in the late eighteenth century as the fleet moved from oars to sails. The chapter then turns to ransom, showing that a captive’s ability to be ransomed, and value, depended on a variety of individualized factors.

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