scholarly journals Who speaks for the night?

2020 ◽  
Vol 22 (2) ◽  
pp. 28-36
Author(s):  
John C. Barentine
Keyword(s):  
Legal Status ◽  
Average Rate ◽  
Intrinsic Value ◽  
Case Law ◽  
Regulatory Regime ◽  
Light Pollution ◽  
New Approach ◽  
Rights Of Nature ◽  
Natural Characteristic ◽  
New Policies

Efforts to control artificial light at night (ALAN) through public policies began in the late 1950s, yet light pollution continues to grow at a global average rate roughly twice that of population growth. The current global ALAN regulatory regime is clearly inadequate to solve the problem, and achieving meaningful light pollution reductions requires a new approach. This paper reviews the legal status quo, introduces the “Rights of Nature” doctrine, and advances the idea of nighttime darkness as a natural characteristic of sufficient inherent value to merit legal consideration in the Rights of Nature context. It concludes with a series of recommendations for ways forward, including the recognition of the intrinsic value of dark skies in the preambulatory language of legislation, formulating new policies in anticipation of broad adoption of Rights of Nature statutes, and advancing the significance of natural nighttime darkness in case law arguments.

The Legal Status of Local Government in South Africa under the New Constitutional Dispensation

2018 ◽  
Vol 33 (2) ◽  
Author(s):  
Mbuzeni Mathenjwa
Keyword(s):  
South Africa ◽  
Local Government ◽  
Legal Status ◽  
Case Law ◽  
The Status ◽  
History Of ◽  
The Republic ◽  
First Time

The history of local government in South Africa dates back to a time during the formation of the Union of South Africa in 1910. With regard to the status of local government, the Union of South Africa Act placed local government under the jurisdiction of the provinces. The status of local government was not changed by the formation of the Republic of South Africa in 1961 because local government was placed under the further jurisdiction of the provinces. Local government was enshrined in the Constitution of the Republic of South Africa arguably for the first time in 1993. Under the interim Constitution local government was rendered autonomous and empowered to regulate its affairs. Local government was further enshrined in the final Constitution of 1996, which commenced on 4 February 1997. The Constitution refers to local government together with the national and provincial governments as spheres of government which are distinctive, interdependent and interrelated. This article discusses the autonomy of local government under the 1996 Constitution. This it does by analysing case law on the evolution of the status of local government. The discussion on the powers and functions of local government explains the scheme by which government powers are allocated, where the 1996 Constitution distributes powers to the different spheres of government. Finally, a conclusion is drawn on the legal status of local government within the new constitutional dispensation.

The Domestication of the Convention on the Rights of Persons with Disabilities

2018 ◽  
Author(s):  
Lisa Waddington
Keyword(s):  
Direct Effect ◽  
Legal Status ◽  
Case Law ◽  
Legal Systems ◽  
Persons With Disabilities ◽  
International Treaty ◽  
Four Dimensions ◽  
Relevant Case ◽  
Similarities And Differences ◽  
Domestic Law

This chapter reflects on jurisdiction-specific approaches to the domestication of the Convention on the Rights of Persons with Disabilities (CRPD), considering in particular the domestic legal status of the CRPD and the relevance of that legal status for case law. The chapter explores four dimensions of the CRPD’s legal status: direct effect; indirect interpretative effect (where the CRPD influences the interpretation given to domestic law); use of the CRPD because of commitments to another international treaty; and absence of domestic legal status. With the exception of the first category, all dimensions can potentially present themselves in legal systems which tend towards the monist approach as well as in those which tend towards the dualist approach. The chapter discusses examples of relevant case law and reflects on similarities and differences emerging from a comparison of that case law.

Effective Participation of National Minorities in Public Affairs in Light of National Case Law

2009 ◽  
Vol 16 (4) ◽  
pp. 621-642 ◽  
Author(s):  
Joseph Marko
Keyword(s):  
Ethnic Diversity ◽  
Legal Status ◽  
Minority Groups ◽  
Case Law ◽  
Public Affairs ◽  
Constitutional Courts ◽  
National Courts ◽  
National Minorities ◽  
Nation States ◽  
Protection Mechanisms

Based on different concepts of nation-states, the article tries to demonstrate through the analysis of decisions of national courts that despite the same wording of the constitutional text, supreme and constitutional courts may come to totally differing conclusions in light of the constitutional history and doctrine of the respective country. The first part of the article gives an overview on case-law denying effective participation through non-recognition of ethnic diversity as a legal category, for instance through the ban of the formation of political parties along ethnic lines or through interpretative preemption of the legal status of minority groups. The second part of the article gives an overview of various legal mechanisms in order to enable, support, or even guarantee the representation and process-oriented effective participation of minorities in elected bodies, such as exemptions from threshold requirements in elections or reserved seats in parliament, and through cultural and territorial self-government regimes in those constitutional systems which legally recognize ethnic diversity. Nevertheless, the case-law demonstrates how difficult it remains to reconcile the notion of "effectiveness" with a positivistic and formal-reductionist understanding of terms such as equality, sovereignty, people or nation. The Lund Recommendations have served as an important guideline for a new, "communitarian" understanding of "effective" participation so that the author argues in conclusion that it requires more intra- and inter-disciplinary dialogue between law, politics and (legal) philosophy as well as between national and international minority protection mechanisms to "constitutionalize" this philosophy.

scholarly journals The Europeanisation of Spanish Administrative Law through the Principle of Legitimate Expectations

2020 ◽  
Vol 13 (2) ◽  
pp. 55-86
Author(s):  
Luis Arroyo Jiménez ◽  
Gabriel Doménech Pascual
Keyword(s):  
Decision Making ◽  
General Principle ◽  
Legal Status ◽  
Case Law ◽  
Administrative Law ◽  
Status Quo ◽  
Eu Law ◽  
National Legislation ◽  
Legitimate Expectations ◽  
The Eu

This article describes the Europeanisation of Spanish administrative law as a result of the influence of the EU law general principle of legitimate expectations. It examines, firstly, whether the formal incorporation of the principle of legitimate expectations into national legislation and case law has modified the substance of the latter, and if so, secondly, whether this has led to a weaker or a more robust protection of the legal status quo. To carry out that examination, the article considers the influence of the principle of legitimate expectations in two different areas: in individual administrative decision-making, and in legislative and administrative rulemaking. Our conclusion is that the Europeanisation of Spanish administrative law through the principle of legitimate expectations has been variable and ambiguous.

THE LEGAL STATUS OF CENTRAL BANK INVESTMENTS UNDER ENGLISH LAW

1998 ◽  
Vol 57 (2) ◽  
pp. 374-390 ◽  
Author(s):  
WILLIAM BLAIR
Keyword(s):  
Legal Status ◽  
Case Law ◽  
Central Banks ◽  
The Public ◽  
State Immunity ◽  
The Us ◽  
English Law ◽  
The Uk ◽  
Special Provision ◽  
Made In

Central banks have enormous sums of money in various forms of investments. When claims are made either against the banks themselves, or against other governmental bodies, issues arise as to whether these assets can be attached, and made available to satisfy judgments. The article explains how central banks are treated in English law. It explains the special provision made in respect of their assets under the State Immunity Act 1978. There is wide immunity from attachment, though questions can arise as to the ownership of such assets. The UK legislation is, in some respects, wider than its counterpart, the US Foreign Sovereign Immunities Act 1976. Recent case law is described in which the English courts have recognised that the public responsibilities of central banks have to be taken account of when determining the extent of their liability to attachment.

Who Are Protected by the Fundamental Guarantees under International Humanitarian Law? Part 2: Breaking with the Control Requirement in Light of the icc Case Law

2021 ◽  
pp. 1-58
Author(s):  
Raphaël van Steenberghe
Keyword(s):  
Armed Conflict ◽  
Legal Status ◽  
Case Law ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
General Control ◽  
Geneva Conventions ◽  
The Status ◽  
Control Requirement ◽  
Specific Paper

Abstract International humanitarian law provides for fundamental guarantees, the content of which is similar irrespective of the nature of the armed conflict and which apply to individuals even if they do not fall into the categories of specifically protected persons under the Geneva Conventions. Those guarantees, all of which derive from the general requirement of human treatment, include prohibitions of specific conduct against persons, such as murder, cruel treatment, torture, sexual violence, or against property, such as pillaging. However, it is traditionally held that the entitlement to those guarantees depends upon two requirements: the ‘status requirement’, which basically means that the concerned persons must not or no longer take a direct part in hostilities, and the ‘control requirement’, which basically means that the concerned persons or properties must be under the control of a party to the armed conflict. This study argues in favour of breaking with these two requirements in light of the existing icc case law. That study is divided into two parts, with each part devoted to one requirement and made the object of a specific paper. The two papers follow the same structure. They start with general observations on the requirement concerned, examine the relevant icc case law and put forward several arguments in favour of an extensive approach to the personal scope of the fundamental guarantees. The first paper, which was published in the previous issue of this journal, dealt with the status requirement. It especially delved into the icc decisions in the Ntaganda case with respect to the issue of protection against intra-party violence. It advocated the applicability of the fundamental guarantees in such a context by rejecting the requirement of a legal status, on the basis of several arguments. Those arguments relied on ihl provisions protecting specific persons as well as on the potential for humanizing ihl on the matter and also on the approach making the status requirement relevant only when the fundamental guarantees apply in the conduct of hostilities. The second paper, which is published here, deals with the control requirement. It examines several icc cases in detail, including the Katanga and Ntaganda cases, in relation to the issue of the applicability of the fundamental guarantees in the conduct of hostilities. It is argued that the entitlement to those guarantees is not dependent upon any general control requirement, and that, as a result, some of these guarantees may apply in the conduct of hostilities. This concerns mainly those guarantees whose application or constitutive elements do not imply any physical control over the concerned persons or properties.

Rights of Nature: Why it Might Not Save the Entire World

2019 ◽  
Vol 16 (1) ◽  
pp. 35-64 ◽  
Author(s):  
Julien Bétaille
Keyword(s):  
Paradigm Shift ◽  
Environmental Law ◽  
Intrinsic Value ◽  
New Paradigm ◽  
Philosophical Approach ◽  
Legal Personhood ◽  
Rights Of Nature ◽  
Value Of Nature ◽  
Entire World ◽  
Wide Access

The advent of Rights of Nature (RoN) marks a new paradigm shift in the philosophical approach to nature. As such, the concept has generated enthusiasm amongst environmentalists and legal scholars. This is not surprising since granting legal personhood to nature seems to present itself as a relative easy fix for the multitude of deficiencies of “modern” environmental law. However, when critically assessed, many of the underlying assumptions justifying a shift towards rights-based approaches to nature are open to challenge. In this paper, which takes a more critical stance on the topic of RoN, it is submitted that also the much-criticized modern environmental law is moving towards a recognition of the intrinsic value of nature, puts breaks on property rights, offers remediation actions for pure ecological damage and also increasingly grants environmental ngos wide access to courts. Moreover, on a second level, it is argued that RoN are not a legal revolution and that many of the problems Rights of Nature tries to cure – such as a lack of enforcement – will simply re-emerge if not adequately assessed within this novel paradigm.

The author's arsenal: loosening standards for protectability and substantial similarity in video game copyright

2020 ◽  
Vol 3 (1) ◽  
pp. 32-43
Author(s):  
Oliver Brown
Keyword(s):  
Video Games ◽  
Video Game ◽  
Paradigm Shift ◽  
Case Law ◽  
District Court ◽  
New Approach ◽  
The Past ◽  
Game Industry ◽  
Economic Expectations ◽  
Cultural Conversation

This article examines and critiques the American copyright regime's increasingly protective approach to video games and their subject matter. Over the past decade, a trio of district court decisions have bolstered protection for video games by relaxing standards for protectability and substantial similarity. Subsequent rulings, concerning both games and other forms of intellectual property, suggest this protective streak will continue. While heightened protection might provide a necessary deterrent to ‘cloning’ and other kinds of impermissible copying, it will also endanger valuable forms of appropriation. After decades of limited copyright involvement, mimesis has become an important element of game creation – widely tolerated by the gaming community as a source of inspiration, interoperability, and cultural conversation. A more expansive view of protectability may inhibit imitative behavior that has, in the past, benefited new creators and fans without harming the economic expectations of prior authors. Moreover, that new approach, which relies heavily on juries for unpredictable, case-by-case determinations, may restrict the financial and creative outlook of the video game industry at large. In its first section, this article identifies the elements of video games that have been deemed protectable under copyright law. The second section summarizes foundational video game case law, in which courts established restrictive standards for protectability and substantial similarity. The third then discusses the paradigm shift towards more expansive protectability, recounting cases where courts found games worthy of heightened protection. In its fourth section, this article argues that the protective trend has yet to peak, looking to evidence gleaned from recent copyright suits. A concluding section outlines the risks of overprotection, cautioning against a potentially unreasoned and impractical copyright standard.

State Neutrality and Legal Status of Religious Groups in the European Court of Human Rights Case-law

2016 ◽  
Vol 11 (3) ◽  
pp. 189-223
Author(s):  
Fernando Arlettaz
Keyword(s):  
Human Rights ◽  
Legal Status ◽  
Case Law ◽  
European Convention ◽  
Level System ◽  
Religious Groups ◽  
Legal Personality ◽  
State Neutrality ◽  
European Court ◽  
Multi Level

From the premise of religious freedom, the European Court of Human Rights (ECtHR) case-law has established a State duty of neutrality concerning religious matters. However, the concept of neutrality is not univocal, and the ECtHR uses various different forms of it. States have a duty to allow religious groups access to legal personality, but they are not obliged to grant every religious group the same kind of legal personality. A double or multi-level system of recognition is legitimate under the European Convention on Human Rights (echr) if some conditions are fulfilled. The ECtHR has also affirmed that the most radical kind of double or multi-level system, that of an established church, is not contrary to the Convention. In a recent case, however, the ECtHR seems to have adopted a stricter approach to the legitimacy of privileges granted to some church/churches above other ones.

scholarly journals Open Enforcement: New Approach of Ukraine

2020 ◽  
pp. 58-68
Keyword(s):  
Human Rights ◽  
Case Law ◽  
International Agreements ◽  
Court Decisions ◽  
Legal Doctrine ◽  
New Approach ◽  
National Legislation ◽  
European Court ◽  
The World ◽  
Court Proceedings

Open justice is one of the fundamental human rights guaranteed by international agreements, as well as by the national legislation of Ukraine. During the reform of justice, the provisions of procedural and judicial legislation have been substantially updated, in particular with regard to ensuring openness and transparency of court proceedings. At the same time, the legislation on enforcement of court decisions does not disclose the essence of these principles, which are enshrined in the relevant laws. Accordingly, the purpose of the article is to identify specific elements of the implementation of the principle of openness and transparency of the enforcement process based on the analysis of the legislation of Ukraine and other countries of the world, national legal doctrine and case law of the European Court of Human Rights.

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