Dissertations / Theses on the topic 'Law (except legal practice and international law)'

There is a lacuna in our understanding of what it is to have legal human right. While moral philosophers frequently address what it is to have a human right, qua human, and legal philosophers discuss what it is that constitutes a legal right, it is not yet clear what it is to have a legal human right distinct from these pursuits. It is generally agreed that not all human rights in the international practice are legal rights for everyone. Legal effectiveness is largely dependent on treaty ratification and domestic commitments. However, this inequality in the effectiveness of legally claimable rights poses a crucial problem for the international practice of human rights, which takes universality and the demands for equitable treatment as central aims of that practice. This dissertation aims to examine this problem and to discuss the state of the emerging legal practice of human rights. It offers a measure, through a standard of adjudicability, for recognizing when legal human rights claims have become effective. The goal is to provide clarity on how this legal practice of human rights might properly emerge in keeping with its own founding principles.

Despite ever growing international trade and dispute settlement, a consistent international methodology of uniform private law has yet to be formed. This is needed in order to encourage the use of existing uniform transnational law rules specifically designed for application to international commercial contracts. This study examines uniform contract law in legal methodology and considers the barriers which exist toward it in modern nation states. It explores ways in which these barriers can be overcome and considers whether it is thereby possible to create a specific methodology of international contract law. Through exploring these three areas, this thesis intends to distinguish and analyse the main obstacles to the application of uniform contract law. The study is therefore organized into three sections, each exploring one of those methodological obstacles and providing solutions for overcoming them. Part One discusses the barriers erected by traditional theories of contract law. Part Two addresses the attitude taken by national lawyers when applying uniform law and enquires how this attitude is formed. This section also asks why this attitude provides an obstacle to the success of uniform law and considers ways in which it could be changed. Part Three, the third and final section considers the treatment of uniform contract law in the context of conflict of laws. This section also asks how seemingly opposite positions in the modern and traditional theory of private international law can be reconciled and considers the ways in which uniform contract law can be applied within a domestic law context as lex contractus. The author argues that the points of resistance identified can be tackled by developing an autonomous methodology of interpretation of transnational contract principles; and, by treating model sets of transnational contract principles as a form of lex specialis. Overall, the thesis seeks to demonstrate that the potential of the UPICC has not yet been fully recognised, and that barriers to such recognition are not insurmountable.

International lawyers are familiar with the question: “Is international law law?” But this thesis instead asks the question: “Is international law international?” Using a variety of methods, this work sheds light on some of the ways in which international law as a transnational legal field is constructed by international law academics, and is conceptualized in international law textbooks, in the five permanent members of the Security Council: the People’s Republic of China, the French Republic, the Russian Federation, the United Kingdom of Great Britain and Northern Ireland, and the United States of America. It explores how different national communities of international lawyers construct and pass on their understandings of “international law” in ways that belie the field’s claim to universality, perpetuating certain forms of difference and dominance. By adopting a comparative approach, it aims to make international lawyers more aware of the frames that shape their own understandings of and approaches to the field, as well as how these might be similar to or different from the frames adopted by those coming from other states, regions or geopolitical groupings. It also examines how some of these patterns might be disrupted as a result of shifts in geopolitical power, such as the movement from unipolar power toward greater multipolarity and the growing confrontations between Western liberal democratic states (like the United States, the United Kingdom, and France) and non-Western authoritarian states (like China and Russia).

Rezensiertes Werk: Häußler, Ulf: Ensuring and enforcing human security : the practice of international peace missions ; legal framework, military operations, political ramifications. - Nijmegen : Wolf, 2007. - X, 180 S. - (A challenge for European law : the merging of internal and external security) ISBN: 978-90-5850-257-5

Public participation in environmental matters is widely acknowledged as having the potential to improve environmental governance and public wellbeing significantly. Hence, the concept of public participation, in terms of public access to environmental information and decision-making processes, has been a recurring theme in international environmental law for decades, with several instruments calling on states to guarantee the concept in their laws and practices effectively. However, even though Nigeria has ratified and committed itself to many of such international regimes, the country is still widely known for its extensive and increasing environmental pollution, and their consequential harm to public wellbeing. This situation raises serious questions about the value and adequacy of Nigeria's laws and practices on public access to environmental information and decision-making processes, in terms of whether they meet international legal standards to which Nigeria aspires or is committed, as well as reasonably allow for effective public participation. In this light, this thesis assesses primarily the value and adequacy of Nigeria's laws on public participation in environmental matters (mainly, the recent 2011 Freedom of Information Act and the 1992 Environmental Impact Assessment Act) and their implementation. This assessment is largely done against the backdrop of what is considered international best practice on the subject-matter as generally reflected in UNECE's Aarhus Convention. Although Nigeria is not a party to the Aarhus Convention, it is argued that the Convention, broadly reflective of Nigeria's international environmental law commitments, is legally and politically relevant to her. This comparative analysis will reveal areas where Nigerian laws and practices align with, probably go beyond, as well as fall short of best practice. This will also enable recommendations for law-reform to be made (in consideration of relevant socio-economic and political factors in Nigeria) in order to better ensure the practical realisation of the ideals of environmental public participation and that Nigeria is in compliance with its international commitments.

Since the early 1990s, institutional approaches to organizations have increasingly focused on explaining the role of agency in processes of institutional creation and transformation. The paradox of embedded agency, the question of how actors can become motivated and enabled to transform supposedly taken-for-granted practices, structures and norms has become the fundamental puzzle of contemporary institutional theory. Recent attempts to resolve this puzzle under the label of “institutional work” focus on practices aimed at creating, maintaining, and disrupting institutions, but portray them as planned, discrete episodes that unfold in isolation from everyday organizational or social life. Thereby, the label highlights institutionalists’ current neglect of work in its literal meaning as actors’ everyday occupational tasks and activities. The detachment of institutional work from practical work constitutes a significant blind spot in institutionalists’ understanding of agency and calls for research that examines the reciprocity of institutions and work. Drawing on illuminating constructs from theories of practice, this study extends existing field-level approaches to the paradox of embedded agency. It argues for a practice-based institutionalism that focuses on individual actors and the role of their collective micro-level praxis in constituting macro-level institutions. It re-connects institutional arguments to every-day activity rather than organizational or managerial action, unpacks the micro-practices and micro–politics by which actors negotiate institutional contradictions and demonstrates the reciprocity of institutions and work. The research addresses the detachment of institutional and practical work through a single-case study of a global law firm’s banking group. It explores what banking lawyers do when they ‘do deals’ and how their practical work may attain institutional relevance. Positioned at the intersec-tion of local laws, international financial markets, commercial and professional logics, banking lawyers operate across multiple institutional frameworks. Observations and accounts of their work provide particularly rich insights into the dynamics of institutional persistence and change, because they illustrate empirically how contradictory institutionalized concepts, practices and logics are experienced, negotiated, and constituted at work.

Tous les etats issus du démembrement de l'urss ont dû résoudre, depuis 15 ans, une question fondamentale : celle de la définition et de l'affirmation de leur identité. ayant tous la même aspiration à la liberté, à l'autonomie productive, à l'ouverture au monde, ces pays ont commencé à réformer leurs systèmes juridiques, politiques et économiques. toutefois le droit international soviétique, spécifique, fermé dans son propre système et lié fortement à la politique extérieure de l'urss, continue à persister dans les etats post-soviétiques, malgré leur aspiration aux règles des sociétés occidentales juste après l'indépendance. ainsi, le renouvellement de la doctrine et de la pratique internationale des etats post-soviétiques se passe d'abord dans des conditions de permanence de la conception soviétique du droit international d'un côté et du désir de trouver sa place dans la communauté internationale de l'autre. cette rénovation ayant ses particularités dans chaque etat ex-soviétique, a affecté non seulement la formation de la pensée juridique et la pratique diplomatique de ces etats, mais aussi les rapports entre les droits internes et le droit international. c'est à l'époque de la fin de l'antagonisme des blocs qu'on observe l'intégration des etats issus de l'urss dans le monde de la nouvelle répartition des forces /
International law is a « common language » but the vision of international law is far from being universal. It is a « multiplicity of particular national, regional, individual, institutional visions of international law. One can speak of the existence of regional American, Latin American, European, Asian, African approaches of law, but what about the geographical region of the former Union of Soviet Socialist Republics? In the XXth century one spoke about the Soviet conception of international law, which was a complex phenomenon, having its roots in the Russian legal school, combining the multiculturalism of the Russian Empire and the Soviet state and causing the division of the world into two blocks : Western and Soviet. For over twenty years that the Soviet Union no longer exists and the former Soviet states became independent and sovereign actors in the international arena. Can we therefore speak today about the existence of national approaches to international law of each state of the former USSR ? The objective of this thesis is to present the current state of doctrine and practice of the post-Soviet international law, considering the renewal of approaches of foreign policies of the post-Soviet states, and doctrinal concepts of international legal scholars. Does the post-Soviet doctrine of international law exist ? The contemporary international law is faced with challenges such as regionalization, globalization and the establishment of the rule of law in international law. Faced with these challenges, the doctrine and practice post-Soviet international law have been renewed. What approaches the post-Soviet states adopt in response to the contemporary challenges of regionalization, globalization and the establishment of the rule of law in international law?

碩士
國立臺灣海洋大學
海洋法律研究所
93
The thesis is aim at theory and practice to complement each other. The intensions were covered the issues of maritime law enforcement and maritime affairs. The relevant legal system are included the adoption of academic theories and the implementation of authorities. Therefore, the aspects of studying are probe into more diversified and probably can’t focus on single issue. The purpose is pay more concern about east coast of Taiwan that long-term lack of focusing through emerging the issues to the surface. All the data in this thesis were collected via library Internet to condense the categories about how to regulate the legal system of maritime law enforcement and the relevant documentation of papers, academic theories, law articles, treaties, Conventions, and agreements, etc. and also using the practical incidents recently occurred in the eastern water areas. Through the lesson learned from media reports and self-experiences, the author conducts the historical review approach to investigate the evolution processes of domestic and international legal systems on maritime law enforcement for predicting the future development trends and logically integrated through concluding and comparing methods. Hoping that the nation’s law enforcement cannot only conform to the viewpoints of international law but also considered the dignity of coastal state’s sovereignty for consolidating the stance of nation’s maritime law enforcement and promoting the capabilities. Therefore, the structure of this thesis is covered with the importance of Asia-Pacific regional security from the geopolitical situation of Taiwan eastern water areas to the existing disputes among Taiwan, Japan, Philippines and China in the west Pacific. Such as territorial sovereignty, sea area demarcation, maritime jurisdiction and fishing etc. Based on the articles of international law, the eastern water area of Taiwan was facing the issues, such as the disputes of law enforcement and legal systems on maritime jurisdictions of adjacent inner water, territorial sea, adjacent area, exclusive economic zone, and continental shelf, etc. needed to negotiate with neighboring coastal states. Anticipating that Taiwan can reverse the past concepts of “Valuing land, ignoring sea” “Giving weight to west, looking down on east” to establish an ecological, secure, and prosperous ocean state.

博士
國立臺灣海洋大學
海洋法律研究所
101
Abstract Extradition refers to the requesting state with criminal jurisdiction, for the purposes of prosecuting or raising trials for criminals, or enforcing sentences to criminals, in accordance with bilateral treaties, principles of reciprocity or international comity, proposes to return criminals back from the requested state. Whereas the diversified and internationalized criminal patterns plus more organized manner of crime and convenience in transportation, the cross-state (cross-border) crimes such as money laundering, organized crime, financial fraud, drug transportation, destruction of environment and terrorism, often make a use of differences among cross-national legal systems to avoid legal sanctions. The mutual judicial assistance for criminal matters is the most effective lawful procedure to defeat international crimes, wherein the extradition is the most effective judicial activity hunting for the fugitives. However, over the past decades of years, our country had weaker status being positioned internationally, and our national sovereignty has been challenged, especially under China’s suppression, Taiwan (R.O.C.) never concluded with any formal extradition treaties with a majority of countries. Therefore, how to strengthen degrees of cooperation between our country and international community on mutual judicial assistance in criminal matters and defeating international crimes jointly become the issues needing urgent solution. On the aspects of research methods, the Study first focuses on literature analysis, so as to integrate and establish complete series of knowledge and provide information for any solution to the problems effectively, as well as create independent thinking system, insights and concepts to serve as the theoretical base of the Study hereof. Further, a comparative study method was used to describe the facts and valued comments, systemically describe, compare and analyze more than two systems or facts, as well as identify differences or the pros and cons between them as the references to resolve the problem or improve the system containing base for system reform. Finally, a synthetic induction method was used to induce the literature analysis method and comparative study method stated above, which were served as the research methods to construct the regime of law of extradition. In this study, a synthesis method was used to combine and induce all analysis of literatures, inputs of experts and scholars, references of cases studies, historic international conventions and international practices, then, identify solution to the problems and regenerate new perspectives and new theories for references of amendments to “Extradition Act" and "Cross-strait Judicial Assistance Agreement”. For the legal aspects of extradition, the Study firstly discusses the theory and practice of customary international law, including extradition of general principles of law and international practices, then followed by an interpretation of international conventions or the clauses as to extradition prescribed in regional multilateral conventions, where we learned that a majority of the contents in the international convention originate from customary international laws and expressed with a manner of convention for creation of codified international laws. Besides, many presidents of states or diplomatic representative were involved with severe degrees of serious international crimes, such as war crimes, the crime of aggression, genocide and against humanity, with which any claim pertain to the immunity right shall be raised and any extradition shall be rejected; this Study also discusses international practices and some international conventions such as 1961《Vienna Convention on Diplomatic Relations》, and 《International Criminal Court Statute》（ICC Statute） and so forth. On the examination procedure of extradition, as a result of difference among legal systems across nations, including applications of examination procedure for extradition, in this Study, a comparison of their pros and cons was also conducted through referring to the relevant judicial systems across nations and domestic ones. In addition, EU passed 《Framework Decision on the European Arrest Warrant and the Surrender Procedures》（FDEAWSP）in 2002, which abolished the extradition system across EU countries and replaced by surrender system that it classified the request as a simple judicial case, eliminating the rights of examination owned by the administrative authorities; there is a separate reviewer acted by a judiciary authority verifying approval or rejection of the examination request. In this Study, an interpretation of the differences between FDEAWSP and traditional extradition system was also done to expect the provision of references for the operation of judicial practices in our country. On the aspect of amendments to “Extradition Act (R.O.C.)”, even though it is a base of criminal extradition, it remained unchanged and is not in line with the contemporary international convention and customary international law, which causes failure of some provisions to deploy its full performance on international judicial cooperation; in view of the practice, it also is caused from the absence of legal base for enforcement of extradition measures. Therefore, this Study also refers to the criminal codes of nations across countries, bilateral extradition treaties, international conventions and laws of international organizations, further draft amendment of provisions stipulated in the “Extradition Act” to facilitate progress of extradition proceedings and achieve purposes of criminal prosecution and punishment. Finally, due to reason of the tiny feasibility of the bilateral extradition treaties entered between Taiwan (R.O.C.), positioned unique around the world, and non-diplomatic states, we shall take other alternative measures as a provisional mode for extradition under a premise of non-violence of international extradition system; besides, we shall start with minor legal assistance in criminal matters and conclude with Mutual legal Assistance Agreement with non-diplomatic states to strengthen level of relationship between Taiwan (R.O.C.) and international community. For the issues raised on surrender of cross-strait criminals, the two sides shall intend to normalize the mutual assistance in criminal justice and negotiate to amend the contents of "Cross-strait Mutual Judicial Assistance Agreement” based on mutual trust and reciprocity, enabling to comply with the relevant legal principles of international extradition systems and facilitate process of surrender of cross-strait criminals, and promote efficiency of cooperation on defeating crimes.

The object of this thesis is to investigate the application of international law in municipal law, and more specifically to focus on international human rights law. A determination of the sources of international human rights law constitutes the point of departure. Treaties are the primary source of international human rights law, followed by customary law. Recent authority indicates that the formation of customary human rights law differs from that of customary international law in general. There are, however, also international documents on human rights not falling within the scope of the traditional sources as embodied in section 38 of the Statute of the International Court of Justice. Non-binding sources of law, or soft law - most notably the Universal Declaration of Human Rights - are shown to play an important role in the formation of both treaties and custom and directly influence state practice. Theoretical explanations expounding the application of international law in the domestic law of states are examined, assessing their suitability for effective implementation of international human rights instruments. Since the application of international law in municipal law depends on, and is regulated by rules of domestic law, the relevant rules of legal systems which may, due to historical factors or regional proximity, impact on South Africa, are examined. State practice points to two primary methods of dealing with international law obligations in domestic law, namely transformation (associated with the dualist theory) or direct application (associated with the monist theory). The specific method of incorporation adopted by a state is often closely related to that state's constitutional system. The advantages and disadvantages associated with each particular method are related to the intricacies of individual legal systems. From an internationalist perspective the often misunderstood doctrine of direct application, has the advantage of making the intended protection afforded by human rights treaties to individuals directly enforceable by domestic courts with a minimum of state intervention. The position of international law in South Africa is assessed against this background. South Africa's constitutional history under British rule followed British law requiring legislative transformation of treaty obligations, but permitting customary law to be directly incorporated into common law. The position of international law became constitutionally regulated in South Africa with the introduction of a constitutional democracy. Drafting errors and practical difficulties experienced with the 1993 Constitution, were largely ironed out by the 1996 Constitution. The post-apartheid Constitutions introduced changes and new dimensions compared to the pre-1993 position of international law, including: the consideration of international law when interpreting the constitutionally protected human rights; the involvement of the legislature in the treaty-making process; and provisions for both transformation and direct application of treaties subject to the provisions of the Constitution. Customary international law is confirmed as forming part of South African law, and courts are obliged to interpret legislation in accordance with international law. An analysis of court decisions after 1993 reveals the following broad trends: (i) The impact of international law as part of South African law is still largely overlooked. (ii) The majority of references to international law by the courts are to international human rights agreements and decisions by international tribunals under section 39 of the Bill of Rights. (iii) The distinction between international law and comparable foreign case law, as directed by section 39, is often blurred. (iv) No distinction is made between international hard and soft law when deciding on human rights matters. (v) Courts have refrained from applying international human rights obligations which form part of South African law because they are self-executing or form part of customary international law. (vi) Binding international human rights obligations are only referred to for comparative purposes. (vii) The term "treaty" is interpreted in accordance with the definition of the Vienna Convention on the Law of Treaties. The intention to create legally binding obligations is therefore implicit. It has been the policy of the post-apartheid South African government to ratify or accede to the major international human rights agreements as swiftly as possible. The execution of this policy has, however, met with numerous problems. As a result, South Africa has to date not become party to the International Covenant on Economic Social and Cultural Rights. Many treaties to which South Africa is a party have not yet been incorporated into South African law and compulsory reports on the Convention on the Elimination of All Forms of Racial Discrimination, the Convention on the Elimination of Discrimination Against Women and the International Covenant on Civil and Political Rights are overdue. Despite the post-apartheid euphoria about the creation of a human rights culture in South Africa and the formal commitment by government to give effect to international human rights instruments, much remains to be done before South Africa can be regarded as formally complying with international human rights standards.
Law
LL. D. (Law)

碩士
國立臺灣海洋大學
海洋法律研究所
96
After promulgated in 1982, United Nations Convention on the Law of the Sea settled the theoretical ground for international laws on the coastal state’s claim of territorial sea, contiguous zone, exclusive economic zone and continental zone. As states actively expand their maritime scopes, the disputes on jurisdiction overlapping and delimitation keep raising. With the limited opposite distance between Taiwan and Japan, the exclusive economic zones of each state’s are highly overlapped, also becoming fishery disputes and related problems. To get over this constraint, Taiwan with equilibrium principle tries to negotiate an ultimate line between Taiwan and Japan. However, under the current international circumstance of one-China-policy, it is rather hard for Taiwan to negotiate with Japan for the delimitation of exclusive economic zone. Therefore, Taiwan claims the Temporary Enforcement Line as an interim measure to secure maritime jurisdictional interests which belong to exclusive economic zone. Though this Temporary Enforcement Line is claimed with the equitable principle, if we review it with the perspectives of international laws and relevant practices, there seems to be not aligned to the legal system. For all Taiwan claims that Temporary Enforcement Line is not the ultimate resolution for the boundary of exclusive economic zone and fishery sovereignty, it is closely connected with perspectives of the scope of exclusive economic zone, when we exam it from the angles of motive, purpose and delimitating principle. Furthermore Taiwan’s practice has made the Temporary Enforcement Line become the substantial scope to secure the maritime jurisdiction of exclusive economic zone. This dissertation will analyze international laws, legal precedents and practices to research the basic rules of delimitation of exclusive economic zone. Then it should cite the research to review the methodology for the delimitation of Taiwan-and-Japan’s exclusive economic zone and justify Taiwan’s scope to conclude a reference for modification of the Temporary Enforcement Line.

碩士
國立臺灣海洋大學
海洋法律研究所
97
Marine Protected Area is concerned as an important method to maintain biodiversity and to save endangered species. The conservation and management of marine living resources is discussed in many International Conventions. Besides, many developed countries are devoted to protect marine resources and to establish various Marine Protected Areas. Accordingly, the protection about biodiversity and the sustainable development on resources have become universal consensus. Taiwan is surrounded and influenced by sea and is blessed with bountiful resources, especially in coral reef ecosystems. Except Dongsha Marine National Park established in 2007, Penghu, Lyudao and Lanyu all have abundant coral resources and also need to be protected. Positively, our local appreciations for ocean is far below than other coastal states. Most of the Marine Protected Area regulations made are incomplete and unsuitable with relevant ocean protection work divided into separate office divisions resulting in ineffective management. Most Marine Protected Area regulations are incomplete and relevant ocean protection works disperse in different institutions resulting in ineffective achievements. In order to effectively display Maine Protected Area’s function, the first goal is to complete relevant regulations and to make reasonable policies and regulations. The target of this thesis is to provide suggestions in Marine Protected Area’s regulations and policies after consulting relevant regulations applied in international policies, international customary laws, international treaties and other state practices. It is expected that Taiwan is able to complete Marine Protected Area’s regulations to reach the goal of the sustainable development. Therefore, Taiwan may achieve the purpose of being a virtual marine State and create a new ocean era.

碩士
國立臺灣海洋大學
海洋法律研究所
98
International multimodal transport is in the booming development in recent years. It involves at least two modes of transport (such as railway, sea, land transportation and airway) between at least two states. Besides, it provides more efficient and more safety service in door – to – door transportation, hence, multimodal transport plays a significant role in the international transportation There is no specific and unify legal support to the multimodal transport so far. However, “United Nations Convention on Contracts for the International Carriage of Goods Wholly or Partly by Sea (Rotterdam Rule)” took effect in 2009, the new legal regime will affect the multimodal transport and sea carriage. Although the status quo of the relationship between Taiwan and China is much closer than ever, most of transportation regulations which made are incomplete and unsuitable. Therefore, the target of the thesis is to explore the multimodal transport regulations after consulting relevant regulations applied in international conventions, the maritime law in Taiwan and People’s Republic of China. It is expected to provide few useful suggestions on modifying Taiwan’s maritime regulations and laws.

碩士
國立臺灣海洋大學
海洋法律研究所
107
As a result of the transformation of social structure and economic development, juvenile delinquency often shows different patterns. How to achieve the corrective effect after juvenile delinquency will be the real goal of juvenile delinquency correction. During this crime correction process, the human rights of juvenile offenders are often the focus of attention of the general public. According to the term "human rights ", the term refers to the rights of the people. "Human rights " is the value of universality. This is because, despite the different identities of people, human rights are no different. In short, human rights are fundamental rights that individuals or groups should enjoy as human beings. For a long time, the issue of human rights with regard to crime correction has been seen as a weak issue that has been neglected and even ignored. As the physical and mental development of juvenile offenders continues, the crime correction is essential to their future personality. That's why their rights should be given more consideration. In the course of the evolution of juvenile delinquency correction, an inappropriate punishment method is gradually replaced by education. From the perspective of international human rights, this paper probes into the practice of juvenile delinquency correction from the perspective of the normative content of international human rights laws.