Studia Iuridica Lublinensia最新文献

{"title":"A SHIELD OR A SWORD? MIGRATION LAW AND POLICY AND MODERN SLAVERY IN AUSTRALIA","authors":"D. Dagbanja","doi":"10.31338/2544-3135.si.2023-96.6","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.6","url":null,"abstract":"How might migration legislation and policies contribute to modern enslavement of migrants in Australia? Migration law and policy are a shield in the sense that they have been used and have the potential to be used to shield or protect trafficked individuals and those subject to modern slavery. Nevertheless, the state could be complicit in modern slavery through its migration law and policies exemplified by English language requirements for visas and for entering into certain professions. By placing the English language barrier between migrants and their economic and professional aspirations in obvious cases when a demand for proof of English language proficiency must not be made in the first place, the Australian Government and institutions create the environment conducive for excluding migrants from the professions and exposing them to economic abuse and exploitation. The stated basis of the English language requirements for Australian visas is that English language ‘is critical to getting a job’ and safely practising a profession and participating in Australian society. Yet migrants from non-exempt countries are required to sit for an English test when they apply for permanent resident visas (such as Subclass 186) and temporary visas (such as Subclass 485), even when they are present and already employed in Australia. Educational qualifications in English awarded by Australian and non-Australian tertiary educational institutions that satisfy the Australian study and qualification requirements are not the acceptable proof of competency in the English language. The effect of non-recognition of educational qualifications in English as proof of the English language ability is that visa applicants from non-exempt countries, even those present and working in Australia and/or who have completed a course of study in Australia, have to sit for an English language test. The content of this test bears no connection whatsoever with the English language used in practice. The test has an expiry date thereby tying migrants’ English language ability to the test expiry date, suggesting that once the test expires, so does their competency in English. Failing one component of the test requires resitting all the four components. Whereas an Australian educational qualification in English is required for admission to the legal, medical and nursing professions, the English language competence of migrants from non-exempt countries who hold the qualification is extracted from this qualification. Therefore, migrants cannot rely on the qualification as prove of their competency in English, even though the practice boards accept this same qualification as meeting the standards for admission to practise. The evidence disallowed or required to prove the English language capability both for Australian visas and to enter into the professions thus belies the stated purposes of the English language requirements. English is a global language that is spoken by different nationali","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":"283 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82827797","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"CORSICAN SEPARATISM IN THE FACE OF SOCIO-LEGAL CHALLENGES. ANALYSIS OF THE PROBLEM ON THE BASIS OF FRENCH, INTERNATIONAL AND EUROPEAN LAW","authors":"Dominik Światkowski","doi":"10.31338/2544-3135.si.2023-96.17","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.17","url":null,"abstract":"The paper relates to the separatist tendencies in Corsica. Following the victory of separatists in the local elections in 2017 and 2021, this issue remains one of the most current problems regarding the territorial situation in France. Firstly, the historical background showing the distinctiveness of the indigenous inhabitants of the island is analysed. Subsequently, the main problem is presented in the legal context. The basis for the analysis is the national (French), international and regional (EU) law. The attention is also focused on how the regulations are implemented in practice, particularly regarding their recognition. Although the right to self-determination does not seem to involve the right to secession due to the lack of outright effect of international law, the greater autonomy is not only possible but also desirable. The aim of the paper is to present different aspects of Corsican separateness, to examine the legal framework, and to assess the chances of Corsicans for changing their future.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":"104 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75987070","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"PRESENT-DAY POLICIES CONCERNING INDIGENOUS LANGUAGES IN THE AMERICAS: A GEOGRAPHICAL APPROACH","authors":"Krzysztof Ząbecki","doi":"10.31338/2544-3135.si.2023-96.20","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.20","url":null,"abstract":"Global changes in policies regarding Indigenous people, observed in the last decades, have had a strong impact on language policies in the Americas. They are aimed at increasing protection of Indigenous languages, especially in countries with a higher number and percentage of Native people and Indigenous language speakers (ILS). However, it is argued in the paper that the scope of these policies is often not adapted to changes in spatial distribution of Autochthonous populations, while their effective implementation in many cases seems outright impossible. The first part of the paper sums up an analysis concerning the number and spatial distribution of Indigenous people and ILS in countries and dependent territories of the Americas. The second part shows the evolution of policies towards Indigenous languages in the Americas from the colonial era to our times. The last part studies spatial aspects of the situation of Indigenous languages in Mexico City, based primarily on qualitative data obtained from interviews and observations carried out during field research. The paper concludes: that a clear progress has been made in language policies in the last decades in the analysed region, especially in Latin America; that there is no obvious difference in the implementation of these policies between unitary and federal states; and that, based on the case of Mexico City, the implementation of a relevant language policy may be seriously hindered by such factors as insufficient financing, political disputes, and a deeply embedded discrimination against Indigenous languages.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":"110 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79301190","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"FREEDOM OF RELIGION IN THE EUROPEAN PUBLIC SPACE. REMARKS BASED ON THE LATEST CASE LAW OF SELECTED INTERNATIONAL AND NATIONAL COURTS CONCERNING RELIGIOUS SYMBOLS","authors":"Jakub Sewerynik","doi":"10.31338/2544-3135.si.2023-96.16","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.16","url":null,"abstract":"The author attempts to analyse selected rulings of the European courts concerning religious symbols in order to answer the question whether freedom of religion is still respected in Europe. The analysis is based on the reflection on the context of contemporary European cultural landscape: diversity of constitutional models of particular states, the concept of neutrality in the matter of religion, and the ability of contemporary political elites and judges to understand the sphere of the sacred (sacrum). The selection criteria for the rulings have been cases concerning objects related to practising religion: (i) the hijab – an Islamic headscarf, (ii) the burqa – a garment covering practically the entire body, and (iii) the crucifix hung on a classroom wall. The review brings up important questions about lack of tolerance, pluralism and acceptance of religious diversity in contemporary Europe, and ‘reasonable accommodation’ as a possible solution.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":"19 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84458627","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"THE INDIGENOUS SUBJECT IN LAW: AT THE INTERSECTION OF THE CARTESIAN SUBJECTIVITY AND THE RULE","authors":"Jakub Babuśka","doi":"10.31338/2544-3135.si.2023-96.1","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.1","url":null,"abstract":"This paper addresses a key question raised by the tension between the subject of normative law and indigenous, collective systems. Within the framework of the Lacanian psychoanalysis, the author explores Cartesian specificity of a legal subject. He argues that structural nature of that legal construct not only affects an individual ontologically but also reorients the dialectics inherent in legal dogmatism. Following Baudrillardian thought, it is assumed in the paper that the total opposition to normative law is not the absence of law but rather the Rule. The Rule is a concept engaging the individual into dialectics of a game and at the same time ruling out any sense of inherently legal transgression. However, the context of indigenous systems based on the Rule, besides amplifying an alienating effect of the individualization of responsibility, also explains the incongruity of normative law in some cultural contexts. The failure to integrate indigenous, traditional and local legal systems into the post-colonial normative discourse is just one of many illustrations of this. As an exemplary case, the author evokes injustice (in the Lyotardian sense) resulting from litigation simultaneously based both on Brahmanical marriage rules and the Hindu Code Bill. In its final part, the text summarises the impasses of the legal dialogue with indigenous rules and the ways of emancipation for an individual imbedded in the Cartesian subjectivity, which are inspired by transcultural encounters.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":"38 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89325352","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"LEGACY OF THE CONFLICT BETWEEN EUROPEAN AND INDIGENOUS AFRICAN LEGAL CONSTRUCTS OF LAND TENURE IN CONTEMPORARY ZIMBABWE","authors":"J. Kunicki","doi":"10.31338/2544-3135.si.2023-96.9","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.9","url":null,"abstract":"The study focuses on the undeniable significance of the European legal traditions, brought to former Southern Rhodesia/Rhodesia by European settlers, for the legal status of land tenure in the country, the legacy of which traditions still deeply impacts the situation in present-day Zimbabwe. There are two main aspects of this influence: the aftermath of imposed land division and the prevalence of Western legal traditions in contemporary law. Numerous laws enacted unilaterally by white Rhodesians, most notably the 1930 Land Apportionment Act and the 1951 Native Land Husbandry Act, impacted the land tenure in the region. The indigenous African population was undoubtedly discriminated against by these legal actions: numerous acres of the land were taken by European conquerors and those left were of much lesser value in terms of farming and pasture. After the end of minority rule in Rhodesia in 1980, when Robert Mugabe rose to power, new land policies were imposed and numerous land allocations were awarded to the supporters of his regime in the name of removing racial injustices. The consequence was disastrous: the policy led to the demise of once world-famous agriculture and Zimbabwe became ceaselessly endangered by famine. Furthermore, laws concerning the land tenure and husbandry were (and still are) based on European legal constructs, alien to the native population of Zimbabwe. Indigenous traditions were subsequently ousted by the European law and are significantly absent in Zimbabwe today. Nowadays, after the fall of Mugabe in 2017, the country finds itself in the defining point of its history. The question persists: Can Zimbabweans derive useful values from their past in order to shape a new land policy in their homeland that would be just for all its citizenry?","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":"22 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"74672383","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"INDIGENOUS CLASS PROCEEDINGS IN CANADA. AN EXAMINATION OF THE CONVERGENCE OF INDIGENOUS RIGHTS AND CLASS ACTIONS IN THE CANADIAN COMMON LAW SYSTEM","authors":"Steven L. Cooper","doi":"10.31338/2544-3135.si.2023-96.5","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.5","url":null,"abstract":"The foundations of contemporary Indigenous relations in Canada have been laid by class action lawyers who foresaw the potential for correcting, acknowledging and addressing historical wrongs. Decades of persistence by Indigenous leaders and collateral work by lawyers compelled the Canadian government, the Canadian public and its major religious and charitable institutions to face their pasts. Class and mass action lawsuits are indispensable to lawyers seeking to advance claims that recognize the systemic oppression of Indigenous people beyond individual harms. Respected class action lawyer Steven L. Cooper, KC, outlines more than 250 years of this legal history that has defined the unique status of Indigenous Canadians, from recognizing royal proclamations as they relate to land claims to settlements that have seen hundreds of thousands of Indigenous people compensated for harms inflicted in residential schools and hospitals.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":"18 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"77698306","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"INDIGENOUS RIGHTS AS A FIELD OF SOCIOLOGICAL RESEARCH","authors":"C. Thornhill","doi":"10.31338/2544-3135.si.2023-96.18","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.18","url":null,"abstract":"This paper sets out a new reconstruction of indigenous rights as a field of sociological research. Questioning the dominant pluralist paradigm in such inquiry, it claims that indigenous rights are primarily the results, not of socially embedded customs, but of interactions between international law and national law. It then proceeds to explain that, to capture such rights, a focus on social integration and national citizenship is required. It uses this framework to explain indigenous rights as elements of a global legal order that facilitates the construction of citizenship, especially in societies in which citizenship has been subject to deep strain.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":"100 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"83918323","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"DRUG POSSESSION, CHILEAN INDIGENOUS PEOPLES, AND CULTURAL DEFENSES","authors":"Rodrigo Cespedes","doi":"10.31338/2544-3135.si.2023-96.3","DOIUrl":"https://doi.org/10.31338/2544-3135.si.2023-96.3","url":null,"abstract":"This paper examines two decisions in which the legal dispute was focused on whether it was lawful to possess coca leaves by indigenous peoples to practice rituals according to their traditional customs. Both ILO Convention 169 (ILO C169) and the International Covenant on Civil and Political Rights (ICCPR) were paramount in justifying a cultural defence.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":"112 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-07-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"86020173","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Crucial Role of Timely Forensic Examinations in Investigating Crimes against the Sexual Integrity of Minors: A Case Study of Kazakhstan’s Forensic Analysis System","authors":"A. R. Zavotpayev, Vitaliy V. Khan, D. V. Eremeev","doi":"10.17951/sil.2023.32.2.133-148","DOIUrl":"https://doi.org/10.17951/sil.2023.32.2.133-148","url":null,"abstract":"Timely appointment of forensic examinations in the prosecution of crimes against the sexual integrity of minors is the key not only to their rapid and complete investigation, but also the most important means of proving the guilt of suspects. In most cases, apart from the victim’s testimony and the results of identification, the guilt of the criminal is confirmed only with the help of forensic expert opinions, and a delay in the implementation of forensic analysis can lead to the irreparable loss of traces of a criminal offense. The role of forensic expertise in the fight against crimes against the sexual integrity of minors in modern realities is massively increasing, as it directs investigations and provides evidence to combat the changing face of crime. In recent years, the Republic of Kazakhstan has experienced a qualitative development of the forensic analysis system, which is reflected in numerous adopted legislative initiatives. Proper organisation of criminal investigation and high-quality interaction of intelligence and investigative services in collecting and recording evidence, as well as strict compliance with the requirements of the Criminal Procedural Code of the Republic of Kazakhstan during forensic analysis, allow identifying crimes against the sexual integrity of minors and bringing the perpetrators to criminal responsibility. Strict adherence to protocols and procedures that ensure the integrity of medical records, documentation and all collected clinical and forensic evidence can only increase the value of a medical assessment of child sexual abuse during a forensic analysis.","PeriodicalId":36157,"journal":{"name":"Studia Iuridica Lublinensia","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2023-06-27","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42575345","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}