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Dr. Beatriz Barreiro Carril
Lecturer of International Law (Rey Juan Carlos University).

    Despite enjoying distinct and privileged constitutional statuses, the Indigenous minorities of Malaysia, namely, the natives of Sabah, natives of Sarawak and the Peninsular Malaysia Orang Asli continue to endure dispossession from their customary lands, territories and resources. In response, these groups have resorted to seeking justice in the domestic courts to some degree of success. Over the last two decades, the Malaysian judiciary has applied the constitutional provisions and developed the common law to recognise and protect Indigenous land and resource rights beyond the literal confines of the written law. This article focuses on the effectiveness of the Malaysian courts in delivering the preferred remedy of Indigenous communities for land and resource issues, specifically, the restitution or return of traditional areas to these communities. Despite the Courts’ recognition and to a limited extent, return of Indigenous lands and resources beyond that conferred upon by the executive and legislative arms of government, it is contended that the utilisation of the judicial process is a potentially slow, costly, incongruous and unpredictable process that may also not necessarily be free from the influence of the domestic political and policy debates surrounding the return of Indigenous lands, territories and resources.


Yogeswaran Subramaniam Ph.D.
Yogeswaran Subramaniam is an Advocate and Solicitor in Malaysia and holds a PhD from the University of New South Wales for his research on Orang Asli land rights. In addition to publishing extensively on Orang Asli land and resource rights, he has acted as legal counsel in a number of landmark indigenous land rights decisions in Malaysia.

Colin Nicholas
Colin Nicholas is the founder and coordinator of the Centre for Orang Asli Concerns (COAC). He received a PhD from the University of Malaya on the topic of Orang Asli: Politics, Development and Identity, and has authored several academic articles and books on Orang Asli issues. He has provided expert evidence in a number of leading Orang Asli cases. The law stated in this article is current as on 1 October 2017.

    Indigenous claims have challenged a number of orthodoxies within state legal systems, one of them being the kinds of proof that can be admissible. In Canada, the focus has been on the admissibility and weight of oral traditions and histories. However, these novel forms are usually taken as alternative means of proving a set of facts that are not in themselves “cultural”, for example, the occupation by a group of people of an area of land that constitutes Aboriginal title. On this view, maps are a neutral technology for representing culturally different interests within those areas. Through Indigenous land use studies, claimants have been able to deploy the powerful symbolic capital of cartography to challenge dominant assumptions about “empty” land and the kinds of uses to which it can be put. There is a risk, though, that Indigenous understandings of land are captured or misrepresented by this technology, and that what appears neutral is in fact deeply implicated in the colonial project and occidental ideas of property. This paper will explore the possibilities for an alternative cartography suggested by digital technologies, by Indigenous artists, and by maps beyond the visual order.


Kirsten Anker Ph.D.
Associate Professor, McGill University Faculty of Law, Canada. Many thanks to the two anonymous reviewers for their frank and helpful feedback.

    The judgment of the Inter-American Court of Human Rights in the case of Kaliña and Lokono Peoples v. Suriname is noteworthy for a number of reasons. Particularly important is the Court’s repeated citation and incorporation of various provisions of the 2007 United Nations Declaration on the Rights of Indigenous Peoples into its interpretation of the American Convention on Human Rights. This aids in greater understanding of the normative value of the Declaration’s provisions, particularly when coupled with the dramatic increase in affirmations of that instrument by UN treaty bodies, Special Procedures and others. The Court’s analysis also adds detail and further content to the bare architecture of the Declaration’s general principles and further contributes to the crystallisation of the discrete, although still evolving, body of law upholding indigenous peoples’ rights. Uptake of the Court’s jurisprudence by domestic tribunals further contributes to this state of dynamic interplay between sources and different fields of law.


Fergus MacKay JD
Law Review

Access_open 2018/1 EELC’s review of the year 2017

Journal European Employment Law Cases, Issue 1 2018
Authors Ruben Houweling, Catherine Barnard, Zef Even e.a.
Abstract

    This is the first time we have produced a review of employment law cases from the previous year, based on analysis by various of our academic board members. But before looking at their findings, we would first like to make some general remarks.


Ruben Houweling

Catherine Barnard

Zef Even

Amber Zwanenburg

Daiva Petrylaitė

Petr Hůrka

Jean-Philippe Lhernould

Erika Kovács

Jan-Pieter Vos

Andrej Poruban

Luca Ratti

Niklas Bruun

Francesca Maffei

Roy Balleste
School of Law, St. Thomas University, 16401 NW 37th Avenue Street, Miami Gardens, Florida 33054, USA.

    Despite the increasing influence of cyber activities on our everyday lives, researchers encounter difficulties in understanding this subject matter and in legally qualifying these activities and their effects. Current discussions tend to concentrate on distinct aspects, which lead to a fragmented, rather than a holistic understanding of the legal aspects of cyber activities. This paper approaches the legal dimension of cyber activities from a more general direction and searches for elements and legal principles that may be found in international law, including space law, and can apply to cyber activities.


Stefan A. Kaiser
LLM (McGill). Wassenberg, Germany, stefanakaiser@aol.com
Article

Normative References to Non-Legally Binding Instruments in National Space Laws

A Risk-Benefit Analysis in the Context of Public International and Domestic Law

Journal International Institute of Space Law, Issue 4 2018
Authors Alexander Soucek and Jenni Tapio
Author's information

Alexander Soucek
European Space Agency (ESA), The Netherlands, alexander.soucek@esa.int.

Jenni Tapio
Bird & Bird Attorneys, University of Helsinki, Finland, jenni.tapio@helsinki.fi.

    Increasing commercialization and privatization of outer space and multifaceted uses and exploration of the space potential and benefits raise new challenges to the existing framework of international space law and its established procedural legal mechanisms. What are the legal perspectives of an adjustment, supersession or possible resistance of the five United Nations treaties on outer space? UNISPACE conferences have aimed to enhance international cooperation in the peaceful uses of outer space, including the promotion of common principles. UNISPACE+50 focuses, inter alia, on the issue of the “Legal regime of outer space and global space governance” and the effectiveness of the legal regime in the 21st century. Indeed, the international community is facing today new legal questions with respect to the exploitation of space recourses, multiplication of private space businesses, unilateral grants of national licenses to commercial sector, space traffic management, need for enhanced registration and precision of responsibility and liability regime, to name few. This presentation aims to introduce a general international legal framework of various procedural legal modes of further development of the five UN treaties, both in a de lege lata and de lege ferenda perspective. Light will be shed on the respective procedures of treaty law, prerequisites of the emergence of an international custom, role of non-legally binding standards, bottom-up impact of national legislations and assessment of an effective norm-making capacity of relevant stakeholders, all transposed in the space arena with regard to the current international space debate and practice of States. A selection of the most up-todate topics will serve as examples. This comprehensive legal outline aims to highlight various options that the UNISPACE dialogue and its agenda for the future can address.


Martina Smuclerova
Prague Security Studies Institute, Czech Republic, smuclerova@pssi.cz.

Dennis C. O’Brien
The Space Treaty Project.

    In 2010, the Scientific and Technical Subcommittee of the UNCOPUOS formed the Working Group on Long Term Sustainability (LTS) of Outer Space Activities, assigning it the task of formulating voluntary non-binding guidelines focusing on sustainable space utilization, space debris and space operations, space weather, and regulatory regimes. At its June 2016 meeting, the UNCOPUOS approved 12 of the proposed guidelines, while several remained on the UNCOPUOS agenda. Although the LTS Guidelines are voluntary, their adoption by the UNCOPUOS and consideration by the UNGA’s 4th Committee, are evidence of a growing awareness of their potential contribution to the evolution of space law applicable to all states. This paper explores whether the LTS Guidelines could evolve into customary legal norms as part of customary international law (CIL) and steps that could promote that evolution.


Larry F. Martinez
California State University, Long Beach, USA.

James H. Armstead
Attorney, USA.

Merve Erdem
University of Ankara, Turkey.
Article

The Reliability of Evidence in Evidence-Based Legislation

Journal European Journal of Law Reform, Issue 1 2018
Keywords evidence-based legislation, Institutional Legislative Theory and Methodology (ILTAM), reliable evidence, Professor Robert Seidman
Authors Sean J. Kealy and Alex Forney
AbstractAuthor's information

    As evidence-based legislation develops, and as technology puts more information at our fingertips, there should be a better understanding of what exactly constitutes reliable evidence. Robert and Ann Seidman devoted their professional careers to developing the evidence-based Institutional Legislative Theory and Methodology and teaching it to legislative drafters around the world. Although ILTAM was firmly grounded in – and driven by – evidence, the question becomes what evidence is reliable and a worthy input for the methodology. Further, how can the drafter avoid the misuses of evidence such as confirmation bias and naïve beliefs? We aim to give a guide for using evidence by offering examples of evidence-based legislation in practice and through a proposed hierarchy of evidence from most to least reliable:

    1. Experiments within the jurisdiction / lessons from other jurisdictions.

    2. Information on a topic or issue that was formally requested by the legislature or produced to the legislature under oath or under the penalties of perjury.

    3. Studies / information provided by a government agency.

    4. Expert or scientific studies.

    5. Economic or mathematical models and statistics.

    6. Information provided by special interests.

    7. Stories, apocrypha and uncorroborated tales.


    We hope that this hierarchy provides a starting point for discussion to refine and improve evidence-based legislation.


Sean J. Kealy
Sean J. Kealy is a Clinical Associate Professor of Law, Director of the Legislative Clinics, Boston University School of Law. This article expands upon a concept that he first wrote about in Designing Legislation (APKN, 2011). Professor Kealy wishes to thank Professor Richard Briffault, Joseph P. Chamberlain Professor of Legislation at Columbia Law School, and Professor William W. Buzbee, Georgetown Law School, for reading and commenting on this article at the American Association of Law Schools 2017 Conference.

Alex Forney
Alex Forney earned his Juris Doctor, Boston University School of Law, 2016.
Article

Legal Rights and Possibilities to Access Satellite Data for a Non-Member State of Space Community

Case of Republic of Serbia

Journal International Institute of Space Law, Issue 3 2018
Keywords satellite data, digital divide, space law, EU, Copernicus, Republic of Serbia
Authors Anja Nakarada Pecujlic and Marko Pajovic
AbstractAuthor's information

    In today’s technologically dependent society an average person interacts 36x per day with satellite through diverse applications (e.g. to note just one example - 3/4 of the data used in weather prediction models depend on satellite data). Because of this wide use of satellites, nowadays 80+ countries currently operate at least one satellite in space (latest countries to reach space were Ghana, Mongolia, Bangladesh and Angola). Especially for states that are less economically and technologically developed, space systems are particularly useful and necessary in order to achieve “frog leaping” and decrease the economic and social inequalities between developing and developed states. Involvement in space activities gives them the opportunity to utilize state of the art technology and solve local issues (e.g. environmental, e-health, e-medicine, transportation). Taking a closer look at the satellite data and imagery, it can be observed that the users are mainly public sector clients, such as military institutions for security uses as well as environmental and agricultural authorities. Hence, in the first line it is important to examine which legal framework is governing the access to satellite data and if public sector clients from the developing countries have the same guaranteed rights under international law as the developed nations. This paper will offer in its first part an overview of existing international norms regulating access to satellite data, focusing on relevant provisions in the corpus iuris spatialis. In the second part it will compare these legal rights with the praxis, i.e. determining what are actual possibilities to exercise these rights, if a state is not involved in space activities and has never been a member of space community like in the case of Republic of Serbia. In the third and final part, the paper will zoom in on the EU flagship programs - Copernicus and Galileo - and ESA’s data access policies in regards to states that are neither EU nor ESA member states, but are striving for full European integration, as Serbia.


Anja Nakarada Pecujlic
Institute for Air Law, Space Law and Cyber Law, University of Cologne, Albertus-Magnus-Platz, Cologne 50923, Germany (corresponding author), anja.n.pecujlic@outlook.com.

Marko Pajovic
Serbian Case for Space Foundation, Dr. Ivana Ribara 105, Belgrade 11070, Serbia, marko.pajovic@serbiancaseforspace.com.
Article

Mitigation of Anti-Competitive Behaviour in Telecommunication Satellite Orbits and Management of Natural Monopolies

Journal International Institute of Space Law, Issue 2 2018
Keywords anti-competitive conduct, constellation satellites, monopoly
Authors Thomas Green, Patrick Neumann and Kent Grey
AbstractAuthor's information

    Previous activities in developing satellite networks for telecommunications such as the TelStar, Relay and Syncom satellite networks of the early 1960s through to the Iridium, Globalstar and ORBCOMM constellations of the 1990s were reserved to geostationary orbits and low orbits with less than 100 satellites comprising their network. These satellite networks distinguished themselves by being business-to-government and business-tobusiness facing by contracting with government and domestic carriage and media providers for the supply of services. Customers for these services did not constitute either small to medium sized businesses, or individuals in the general public.
    With the advent of what has been dubbed ‘NewSpace’, however, new entrants into the market are developing constellation satellite networks that operate in Low Earth Orbit (LEO). Unlike the legacy satellite telecommunication networks of the 1960s-1990s, these constellation satellite networks are focused on, amongst other things, Internet of Things (IOT) devices, asset management and tracking, Wi-Fi hot-spotting, backhaul networking and contracting with small businesses and the general public.
    Regional examples of these new telecommunication heavyweights include Fleet Space Technologies (Fleet) - an Australian company undertaking to launch 100 satellites into LEO, Sky and Space Global (SAS) - an Australian-British-Israeli consortium that intends to provide a constellation of 200 small satellites, OneWeb’s planned fleet of 650 satellites that may be expanded to 2,000 satellites, and, SpaceX’s planned StarLink network of 12,000 satellites. In addition, companies such as Spire and PlanetLabs intend to provide geospatial information through their own constellation networks to government and educational institutions alongside the private sector.
    Although propertisation of space and celestial bodies is prohibited under the Outer Space Treaty 1967 (UN), near-Earth orbits still remain rivalrous and commercially lucrative. By operating in a LEO environment, these satellite constellation networks have the potential to exclude competing services by new entrants to market. For example, where one constellation network has an orbital plane or orbital shell, another constellation may not be able to have the same orbital plane or orbital shell.
    Presently, the literature to date focuses on the allocation of spectrum bandwidth, and space traffic management with a focus on orbital debris mitigation. This paper addresses these concerns and offers recommendations on how the risk of ‘natural’ monopolies forming for specific constellation satellite networks in LEO may be mitigated under instruments available to both UNOOSA and the ITU.


Thomas Green
(Corresponding author), Neumann Space Pty Ltd, 1/41 Wood Avenue, Brompton 5007 South Australia, tom@neumannspace.com.

Patrick Neumann
Neumann Space Pty Ltd, 1/41 Wood Avenue, Brompton 5007 South Australia.

Kent Grey
b Partner, Minter Ellison, 25 Grenfell Street, Adelaide 5000 Australia, kent.grey@minterellison.com.

Anna Veneziano
Prof. Anna Veneziano, Deputy Secretary-General, International Institute for the Unification of Private Law (Unidroit).

Hamza Hameed
Mr. Hamza Hameed, Legal Consultant, International Institute for the Unification of Private Law (Unidroit).
Article

From the Unilateral Acts of States towards Unilateralism in Space Law

Journal International Institute of Space Law, Issue 1 2018
Keywords Unilateral acts of States, unilateralism, multilateralism, cooperation, space law making
Authors Tugrul Cakir
AbstractAuthor's information

    Unilateralism has generally been considered a concept with negative connotations. It should be underscored that in some cases unilateralism has resulted in changes either to customary law or treaty law, whereas in others it has not. Consequently, not every type of unilateralism can be perceived as a challenge to Space Law. Nevertheless, we can see the risks of unilateralism when not acquiesced to or generally supported by other States. It is obvious that the multilateral process is becoming more complicated than before which complicates finding multilateral solutions in Space Law. This paper argues that a better understanding of unilateral acts is necessary before delving into the matter of the unilateralism in Space Law.


Tugrul Cakir
Centre du Droit des Espaces et des Frontières, Université Jean Moulin Lyon III, France, PhD candidate, tugrul.cakir@etu.univ-lyon3.fr.

    Recently, SpaceX announced that it would send passengers to the moon in 2018. With the new round of space exploration boom, national research institutions, commercial enterprises are committed to the study of more advanced and economical spacecraft to explore and develop outer space. As a result, more spacecraft will be launched into space. Therefore, it is necessary to establish a system of traffic rules for navigation in outer space.
    Although different modes of transport follow different traffic rules, however, many of these traffic rules are similar. The rules of preventing collisions in outer space should also be similar to other rules of preventing collisions in basic principles and measures to preventing collisions. This is not only the consideration of the efficiency of making rules, but to consider the coordination of navigation in outer space and air navigation, because the navigation in outer space and air navigation are not two independent concepts. As a representative of a type of spacecraft designed for space travel, SpaceShipTwo, the spacecraft of Virgin Galactic, has both the characteristics of spacecraft and aircraft. This type of aircraft is similar to a seaplane, which could both navigation in water and air. While a seaplane is navigating in water, it follows the rules of water navigation, such as the 2005 COLREGS, while this seaplane navigating in the air, it follows the rules of air navigation.
    It seems to increase the burden of the pilot that demand a seaplane to follow different rules of preventing collisions in the water or the air. However, Because of the similar basic principles and measures to preventing collisions in both rules of water navigation and air navigation, this worry seems to be misplaced.
    This paper will first address the commonality in all modes of traffic rules. Especially the basic principles and measures to preventing a collision. It will list the essential principles and measures in air navigation, and study whether these principles and measures can be applied to air navigation. Finally, the paper will address the problems may be involved in the air traffic management while spacecraft are navigating in the air.


Huxiao Yang
Civil Aviation University of China (author).

Chang Dai
Leiden University (co-author).
Article

Legal Challenges of Space 4.0

The Framework Conditions of Legal Certainty among States, International Organisations and Private Actors in the Changing Landscape of Space Activities

Journal International Institute of Space Law, Issue 1 2018
Keywords Space 4.0, NewSpace, ESA, Capacity Building, Cyber Security, Legal Challenges
Authors Gina Petrovici and Antonio Carlo
AbstractAuthor's information

    After more than 60 years of space activities, ongoing scientific and technological progress alongside increased international cooperation, Space 4.0 is entering this field, leaving its hallmark on what appears a new era of space activities. The space community is rapidly changing, and the world continues to face a growing need for dedicated space applications. The growing interest in space leads to an increasing participation of numerous new actors. Governments, private actors and international organisations are eager to fill these gaps in securing the global society’s needs. ESA’s efforts in this regard are reflected in the Space 4.0 concept, introduced at ESA’s Ministerial Council in December 2016 by the ESA Director General. This new conception – building on Industry 4.0 – is designed to host a new era of space activities, setting out to tackle global challenges using the advantages deriving from space and technological progress. These challenges range from climate change to shortage of resources, health, demographic development, digital divide and more. ESA is also highly active within UNISPACE and its objectives: space accessibility, economy, security and diplomacy to contribute to Space 2030 and the UN Sustainable Development Goals. Capacity building reflects the core objective of all international Space 4.0 efforts. This rapid changes and growth are meeting certain needs by bringing space closer to society and inspiring new generations. However, as these developments are taking place in a highly complex net of legal, regulatory and political considerations, they are themselves raising challenges. This paper focuses on the legal challenges raised by the new era Space 4.0 and outlines the framework conditions for legal certainty in this rapidly changing environment. It elaborates on the content of Space 4.0 and its implementation, the legal framework for space activities, and how this is currently challenged by two characteristics of the Space 4.0 development, commercialisation of space activities, along with increasing cyber-security concerns in the context of digital divide and big data.


Gina Petrovici
Master of Laws (LL.M) University of London.

Antonio Carlo
Sapienza University of Rome.
Article

Access_open Legal Legitimacy of Tax Recommendations Delivered by the IMF in the Context of ‘Article IV Consultations’

Journal Erasmus Law Review, Issue 2 2017
Keywords legitimacy, International Monetary Fund (IMF), Article IV Consultations, tax recommendations, global tax governance
Authors Sophia Murillo López
AbstractAuthor's information

    This contribution examines the legal legitimacy of ‘Article IV Consultations’ performed by the IMF as part of its responsibility for surveillance under Article IV of its Articles of Agreement. The analysis focuses on tax recommendations given by the Fund to its member countries in the context of Consultations. This paper determines that these tax recommendations derive from a broad interpretation of the powers and obligations that have been agreed to in the Fund’s Articles of Agreement. Such an interpretation leads to a legitimacy deficit, as member countries of the Fund have not given their state consent to receive recommendations as to which should be the tax policies it should adopt.


Sophia Murillo López
Sophia Murillo López, LL.M, is an external PhD candidate at the Erasmus University Rotterdam and a member of the ‘Fiscal Autonomy and its Boundaries’ research programme.
Article

Access_open The Questionable Legitimacy of the OECD/G20 BEPS Project

Journal Erasmus Law Review, Issue 2 2017
Keywords base erosion and profit shifting, OECD, G20, legitimacy, international tax reform
Authors Sissie Fung
AbstractAuthor's information

    The global financial crisis of 2008 and the following public uproar over offshore tax evasion and corporate aggressive tax planning scandals gave rise to unprecedented international cooperation on tax information exchange and coordination on corporate tax reforms. At the behest of the G20, the OECD developed a comprehensive package of ‘consensus-based’ policy reform measures aimed to curb base erosion and profit shifting (BEPS) by multinationals and to restore fairness and coherence to the international tax system. The legitimacy of the OECD/G20 BEPS Project, however, has been widely challenged. This paper explores the validity of the legitimacy concerns raised by the various stakeholders regarding the OECD/G20 BEPS Project.


Sissie Fung
Ph.D. Candidate at the Erasmus University Rotterdam and independent tax policy consultant to international organisations, including the Asian Development Bank.
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