1,721,080 research outputs found
Unilateral Port State Jurisdiction: The Quest for Universality in the Prevention, Reduction and Control of Ship-Source Pollution
No full textThe capacity to act as a port state in international law is best described by the specific powers exercised over foreign ships, namely inspection, detention, expulsion or request of any type of information prior to the entry into the port. Many of these powers are explicitly attributed to the state in multilateral instruments, whereby the flag state consents to having its ships subject to the jurisdiction of the port state. Notwithstanding the consensus around the complementary nature of port state jurisdiction with respect to certain obligations of the flag state, the port state is not limited to fulfil a secondary role. This is especially visible in the prevention, reduction and control of ship-source pollution, where some port states have not hesitated in acting regardless of an expressed consent by the flag state to the rule or standard being applied with the support of port powers. Not only do port states use more stringent enforcement powers to ensure that international treaties are effective, but they also prescribe novel rules and standards upon any foreign ship that approaches the port, often as a means of breaking an international negotiation deadlock. This study discusses the international legal basis for such unilateral jurisdiction by analysing the principles of state jurisdiction under the dichotomy parochial/cosmopolitan. By interpreting the stated and implicit purposes of port state actions under that dichotomy, this study proposes that states are finding a legal ground to act based on certain legal functions they fulfil in the international legal order. This argument puts into perspective the assumed self-sufficiency of territoriality and shows how unilateralism may also serve to seek to set universally applicable norm
Challenging the Westphalian Order: Incorporating Armed Groups in Law-Making Under International Humanitarian Law
No full textIn recent times, much of the focus has been placed on the incorporation of certain non-state actors, such as NGOs and transnational corporations, into different lawmaking processes, although the resulting rules are considered soft law. However, little attention has been paid to the possibility of affording armed groups a degree of participation in law-making processes, in large part due to the argument that this might inappropriately legitimize such groups. Although it is not realistic for non-state armed groups (NSAGs) to fully participate in multilateral treaty-making processes, it will be argued that it is possible to include some of their views in the development of future humanitarian rules. In this paper, I will deal with four mechanisms through which armed groups could be included in law-making processes. Special consideration will be given to the Geneva Call Deed of Commitment in the case of Sudan as this provides an example of the way in which the commitment of an armed group to adhere to rules of international humanitarian law can influence the position of states in connection with ratifying treaties on IHL (in this case, the Ottawa Convention)
Annotatie ABRvS 9 juli 2014 (Amsterdamse exploitatievergunning raamprostitutiebedrijven), Gemeentestem 2015
No full textVerlof voor zorg en scholing
No full textLeave means that an employee works not at all or less, while the contract remains in force. During parental leave, care leave or educational leave, the employee is given time for caring responsibilities or training, but leave usually does not serve the interests of the employer. There are three types of leave arrangements: (1) the right for leave for a specific purpose when the employee meets the requirements, (2) leave saving and (3) leave after a special request when the employee does not fulfill the criterion of the law or of a collective arrangement. The legal framework for this is the standard of a good employer and a good employee.The current study investigates the juridical obstacles of taking leave. The research shows that four obstacles can be identified.Firstly, often employees do not know in advance whether an employer allows leave. This uncertainty is caused by the use of open standards. In the Dutch system an employee is oft entitled to leave after an assessment of interests of the employer and the employee. Therefore, the Dutch system is flexible, but an employee with a private duty is not always sure he can take leave. In Belgium however, the employee is entitled to leave (Tijdskrediet), in case he has fulfilled all conditions of the standard. The Belgian scheme provides certainty, but gives little room for customized solutions.A second obstacle is that generally leave is unpaid, because the employee is in principle not entitled to wages. However, some types of leave are paid according to the law, a collective agreement or an individual agreement. The obstacles of unpaid leave may be overcome by using leave savings as income provisions. Examples are the proposed concept of the so-called Levensloop-WW (life course unemployment act) of Hermans & Pennings (2006) and the proposed Work Budget (Werkbudget, Commissie arbeidsparticipatie, 2008). If the employee is paid during parental leave or training leave, in the case of change of employer a third problem may arise: the ability of the old employer to reclaim salary paid during leave. The limits under which reclaiming salary is legally acceptable are unclear. This may lead to a sense of insecurity for employees.A forth obstacle to take leave is the risk that an employee might be disadvantaged by taking leave. The case law shows that leave can lead to demotion, missing employee benefits, a deterioration of the employment relationship or dismissal. Employees with a temporary contract may fear that the contract will not be renewed.The current standards of leave are unsatisfactory for an employee with family responsibilities and a labour market where it is expected that an employees knowledge is constantly up to date
Effective judicial protection and State liability in EU law: Implications for the Macedonian Judiciary
No full textThe thesis aims to analyze and provide answers to two main objectives. The first one is to make a critical analysis of the case law and legal literature on procedural and remedial autonomy of the EU Member States. In particular, it seeks to comprehend what this autonomy entails and whether it really exists as a legal principle, whether the classical division of the development of the CJEU case law in this area in three phases corresponds with reality and if not, whether another way of structuring this case law would be more appropriate. Finally, it focuses on the issue of what the relationship is between the principles of effectiveness and effective judicial protection on one hand and the principle of national procedural autonomy, limited by the principles of equivalence and minimum effectiveness, on the other hand. With view of the issue of whether the classical division of the development of the CJEU case law in this area in three phases corresponds with reality and if not, it was found that another way of structuring this case law would be more appropriate. The second objective tackles the issue of a particular doctrine by way of case study, the so-called ‘Francovich liability’. Zooming in on this doctrine enables an analysis of how the more general issues of this thesis – how the principles of autonomy relate to principles of effectiveness and effective judicial protection – play out in practice and what their consequences will be for the Republic of North Macedonia after its projected accession to the EU. The findings of the chapters related to the principles of effectiveness, effective judicial protection and the principle of national procedural, as well as the principle of State liability in EU law serve to have an insight into Macedonian legal system with a special emphasis on the status and application of international law in the Macedonian legal order in order to offer concrete answers on how Francovich liability may be adopted in Macedonian law. Moreover, the chapter on North Macedonia also provides more general insights on what issues and obstacles may arise more generally with the reception of EU judicial protection law. It was found that the Macedonian judges’ approach towards international law is somewhat reserved. It was argued that the awareness of the Macedonian judges of the status, role and purpose of international law and its inclusion in judgments needs to be increased. This consideration was relevant in order to anticipate whether the acceptance of EU law in the Macedonian legal order, as well as its enforcement by Macedonian judges will face serious hurdles, and if the process of accepting EU law as a ‘specific legal order’ will go smoothly in the Republic of North Macedonia
Disputed Maritime Areas: The Rights and Obligations of States under International Law
No full textCurrently, there are approximately 200 ‘disputed maritime areas’. Disputed maritime areas inevitably emerged due to the expansion of the limits of coastal State jurisdiction; e.g. in East China Sea, the South China Sea, the Mediterranean Sea, and the Aegean Sea.Unilateral acts that are undertaken in disputed maritime areas frequently lead to conflict between States.Conflicts can arise, for instance, if a claimant State authorises certain acts that are under coastal State jurisdiction, such as fishing, seismic work, marine scientific research, to be undertaken in a disputed area. However, the type and severity of dispute that is created varies with the specific context and the type of conduct concerned. The issue of what the rights and obligations of States are within disputed maritime areas is at the heart of this study. If the States concerned enter into cooperative arrangements, conflict is less likely to emerge between them, although this is not always the case. Usually, paragraph 3 of Articles 74 and 83 of the United Nations Convention on the Law of the Sea (LOSC) will become relevant when States’ coasts lie opposite or adjacent to each other, and when they have been unsuccessful in delimiting their overlapping claims over the same continental shelf/exclusive economic zone (EEZ) area. This paragraph contains two obligations that are tailored toward different aims. The obligation to “make every effort to enter into provisional arrangements of a practical nature” is tailored towards that States are under a duty to make good faith attempts to come to a provisional arrangement, constituting an obligation of conduct. There are two aspects to the obligation not to hamper or jeopardise: it is concerned with both the actions and reactions of claimant States concerning disputed continental shelf/EEZ areas. In the case law, three cases (i.e., Aegean Sea Continental Shelf (interim measures), Guyana v. Suriname, and Ghana/Côte d’Ivoire) have contributed to a better understanding of what States’ rights and obligations are in disputed maritime areas. The ruling of a Tribunal in Guyana v. Suriname, relying rather heavily on the interim measures order of the International Court of Justice in Aegean Sea Continental Shelf (interim measures), elaborated on as to what acts can be undertaken unilaterally by a State in relation to a disputed maritime area. The actual placing of an installation on or above the seabed; exploiting the natural resources of the continental shelf; and causing physical damage to the seabed, including drilling in a disputed continental shelf area were all considered unlawful. Yet, the two obligations included in paragraph 3 of Article 83 LOSC were interpreted as to mean that a moratorium on economic activities in a disputed maritime area should be avoided. One implication of this was that conducting seismic work unilaterally was considered to be allowed within a disputed area. However, what limits international law imposes on the scope for States to exercise jurisdiction in relation to a disputed maritime areas, or to what extent restraint must be exercised, varies with the specific circumstances of the case
Submarine Telecommunication Cables in Disputed Maritime Areas
No full textThere are a considerable number of maritime areas where no boundary exists, or where a boundary is delimited only in part. This article deals with the issue of submarine telecommunication cables, which are sometimes placed on the seabed or buried in the subsoil of areas that are claimed by multiple states, and identifies specific issues that arise in the context of areas of overlapping claims
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