Search results for: ‘creatio ex nihilo’ doctrine

Authors: Alicia Ettlin

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Amid the rise of neoliberalism to the leading economic policy model in Western societies in the 1980s, people have started to internalise a neoliberal way of thinking, whereby the human body has become an entity that can and needs to be precisely managed through free yet rational decision-making processes. The neoliberal citizen has consequently become an entrepreneur of the self who is free, independent, rational, productive and responsible for themselves, their health and wellbeing as well as their appearance. The focus on individuals as entrepreneurs who manage their bodies through the rationally thinking mind has, however, become increasingly criticised for viewing the social actor as ‘disembodied’, as a detached, social actor whose powerful mind governs over the passive body. On the other hand, the discourse around embodiment seeks to connect rational decision-making processes to the dominant neoliberal discourse which creates an embodied understanding that the body, just as other areas of people’s lives, can and should be shaped, monitored and managed through cognitive and rational thinking. This perspective offers an understanding of the body regarding its connections with the social environment that reaches beyond the debates around mind-body binary thinking. Hence, following this argument, body management should not be thought of as either solely guided by embodied discourses nor as merely falling into a mind-body dualism, but rather, simultaneously and inseparably as both at once. The descriptive, qualitative analysis of semi-structured in-depth interviews conducted with young Australian amateur athletes between the age of 18 and 24 has shown that most participants are interested in measuring and managing their body to create self-knowledge and self-improvement. The participants thereby connected self-improvement to weight loss, muscle gain or simply staying fit and healthy. Self-knowledge refers to body measurements including weight, BMI or body fat percentage. Self-management and self-knowledge that are reliant on one another to take rational and well-thought-out decisions, are both characteristic values of the neoliberal doctrine. A neoliberal way of thinking and looking after the body has also by many been connected to rewarding themselves for their discipline, hard work or achievement of specific body management goals (e.g. eating chocolate for reaching the daily step count goal). A few participants, however, have shown resistance against these neoliberal values, and in particular, against the precise monitoring and management of the body with the help of self-tracking devices. Ultimately, however, it seems that most participants have internalised the dominant discourses around self-responsibility, and by association, a sense of duty to discipline their body in normative ways. Even those who have indicated their resistance against body work and body management practices that follow neoliberal thinking and measurement systems, are aware and have internalised the concept of the rational operating mind that needs or should decide how to look after the body in terms of health but also appearance ideals. The discussion around the collected data thereby shows that embodiment and the mind/body dualism constitute two connected, rather than two separate or opposing concepts.

Keywords: dualism, embodiment, mind, neoliberalism

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Authors: Mojtaba Eshraghi Arani

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Concluding the contract for carriage of cargo with the shipper (through bill of lading or charterparty), the carrier must transport the cargo from loading port to the port of discharge and deliver it to the consignee. Unless otherwise agreed in the contract, the carrier must avoid from any deviation, transfer of cargo to another vessel or unreasonable stoppage of carriage in-transit. However, the vessel might break down in-transit for any reason and becomes unable to continue its voyage to the port of discharge. This is a frequent incident in the carriage of goods by sea which leads to important dispute between the carrier/owner and the shipper/charterer (hereinafter called “cargo interests”). It is a generally accepted rule that in such event, the carrier/owner must repair the vessel after which it will continue its voyage to the destination port. The dispute will arise in the case that temporary repair of the vessel cannot be done in the short or reasonable term. There are two options for the contract parties in such a case: First, the carrier/owner is entitled to repair the vessel while having the cargo onboard or discharged in the port of refugee, and the cargo interests must wait till the breakdown is rectified at any time, whenever. Second, the carrier/owner will be responsible to charter another vessel and transfer the entirety of cargo to the substitute vessel. In fact, the main question revolves around the duty of carrier/owner to perform transfer of cargo to another vessel. Such operation which is called “trans-shipment” or “transhipment” (in terms of the oil industry it is usually called “ship-to-ship” or “STS”) needs to be done carefully and with due diligence. In fact, the transshipment operation for various cargoes might be different as each cargo requires its own suitable equipment for transfer to another vessel, so this operation is often costly. Moreover, there is a considerable risk of collision between two vessels in particular in bulk carriers. Bulk cargo is also exposed to the shortage and partial loss in the process of transshipment especially during bad weather. Concerning tankers which carry oil and petrochemical products, transshipment, is most probably followed by sea pollution. On the grounds of the above consequences, the owners are afraid of being held responsible for such operation and are reluctant to perform in the relevant disputes. The main argument raised by them is that no regulation has recognized such duty upon their shoulders so any such operation must be done under the auspices of the cargo interests and all costs must be reimbursed by themselves. Unfortunately, not only the international conventions including Hague rules, Hague-Visby Rules, Hamburg rules and Rotterdam rules but also most domestic laws are silent in this regard. The doctrine has yet to analyse the issue and no legal researches was found out in this regard. A qualitative method with the concept of interpretation of data collection has been used in this paper. The source of the data is the analysis of regulations and cases. It is argued in this article that the paramount rule in the maritime law is “the accomplishment of the voyage” by the carrier/owner in view of which, if the voyage can only be finished by transshipment, then the carrier/owner will be responsible to carry out this operation. The duty of carrier/owner to apply “due diligence” will strengthen this reasoning. Any and all costs and expenses will also be on the account pf the owner/carrier, unless the incident is attributable to any cause arising from the cargo interests’ negligence.

Keywords: cargo, STS, transshipment, vessel, voyage

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Authors: S. Fantin

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This study is the result of the legal research on cybersecurity and data protection within the EUNITY (Cybersecurity and Privacy Dialogue between Europe and Japan) project, aimed at fostering the dialogue between the European Union and Japan. Based on the research undertaken therein, the author offers an outline of the main asymmetries in the laws governing such fields in the two regions. The research is a comparative analysis of the two legal frameworks, taking into account specific provisions, ratio legis and policy initiatives. Recent doctrine was taken into account, too, as well as empirical interviews with EU and Japanese stakeholders and project partners. With respect to the protection of personal data, the European Union has recently reformed its legal framework with a package which includes a regulation (General Data Protection Regulation), and a directive (Directive 680 on personal data processing in the law enforcement domain). In turn, the Japanese law under scrutiny for this study has been the Act on Protection of Personal Information. Based on a comparative analysis, some asymmetries arise. The main ones refer to the definition of personal information and the scope of the two frameworks. Furthermore, the rights of the data subjects are differently articulated in the two regions, while the nature of sanctions take two opposite approaches. Regarding the cybersecurity framework, the situation looks similarly misaligned. Japan’s main text of reference is the Basic Cybersecurity Act, while the European Union has a more fragmented legal structure (to name a few, Network and Information Security Directive, Critical Infrastructure Directive and Directive on the Attacks at Information Systems). On an relevant note, unlike a more industry-oriented European approach, the concept of cyber hygiene seems to be neatly embedded in the Japanese legal framework, with a number of provisions that alleviate operators’ liability by turning such a burden into a set of recommendations to be primarily observed by citizens. With respect to the reasons to fill such normative gaps, these are mostly grounded on three basis. Firstly, the cross-border nature of cybercrime brings to consider both magnitude of the issue and its regulatory stance globally. Secondly, empirical findings from the EUNITY project showed how recent data breaches and cyber-attacks had shared implications between Europe and Japan. Thirdly, the geopolitical context is currently going through the direction of bringing the two regions to significant agreements from a trade standpoint, but also from a data protection perspective (with an imminent signature by both parts of a so-called ‘Adequacy Decision’). The research conducted in this study reveals two asymmetric legal frameworks on cyber security and data protection. With a view to the future challenges presented by the strengthening of the collaboration between the two regions and the trans-national fashion of cybercrime, it is urged that solutions are found to fill in such gaps, in order to allow European Union and Japan to wisely increment their partnership.

Keywords: cybersecurity, data protection, European Union, Japan

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Authors: Sumeyra Yakar, Emine Enise Yakar

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Iran presents itself as Islamic, first and foremost, and thus, it can be said that sharī’a is the political and social centre of the states. However, actual practice reveals distinct interpretations and understandings of the sharī’a. The research can be categorised inside the framework of logic in Islamic law and theology. The first task of this paper will be to identify how the sharī’a is understood in Iran by mapping out how the judges apply the law in their respective jurisdictions. The attention will then move from a simple description of the diversity of sharī’a understandings to the question of how that diversity relates to social concepts and cultures. This, of course, necessitates a brief exploration of Iran’s historical background which will also allow for an understanding of sectarian influences and the significance of certain events. The main purpose is to reach an understanding of the process of applying sources to formulate solutions which are in accordance with sharī’a and how religious education is pursued in order to become official judges. Ultimately, this essay will explore the attempts to gain an understanding by linking the practices to the secondary sources of Islamic law. It is important to emphasise that these cultural components of Islamic law must be compatible with the aims of Islamic law and their fundamental sources. The sharī’a consists of more than just legal doctrines (fiqh) and interpretive activities (ijtihād). Its contextual and theoretical framework reveals a close relationship with cultural and historical elements of society. This has meant that its traditional reproduction over time has relied on being embedded into a highly particular form of life. Thus, as acknowledged by pre-modern jurists, the sharī’a encompasses a comprehensive approach to the requirements of justice in legal, historical and political contexts. In theological and legal areas that have the specific authority of tradition, Iran adheres to Shīa’ doctrine, and this explains why the Shīa’ religious establishment maintains a dominant position in matters relating to law and the interpretation of sharī’a. The statements and interpretations of the tradition are distinctly different from sunnī interpretations, and so the use of different sources could be understood as the main reason for the discrepancies in the application of sharī’a between Iran and other Muslim countries. The sharī’a has often accommodated prevailing customs; moreover, it has developed legal mechanisms to all for its adaptation to particular needs and circumstances in society. While jurists may operate within the realm of governance and politics, the moral authority of the sharī’a ensures that these actors legitimate their actions with reference to God’s commands. The Iranian regime enshrines the principle of vilāyāt-i faqīh (guardianship of the jurist) which enables jurists to solve the conflict between law as an ideal system, in theory, and law in practice. The paper aims to show how the religious, educational system works in harmony with the governmental authorities with the concept of vilāyāt-i faqīh in Iran and contributes to the creation of religious custom in the society.

Keywords: guardianship of the jurist (vilāyāt-i faqīh), imitation (taqlīd), seminaries (hawza), Shi’i jurisprudence

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Authors: Debasish Nandy

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India’s foreign policy towards all of her neighbor countries is determinate on the basis of multi-dimensional factors. India’s relations with its South Asian neighbor can be classified into three categories. In the first category, there are four countries -Sri Lanka, Bangladesh, Nepal, and Afghanistan- whose bilateral relationships have encompassed cooperation, irritants, problems and crisis at different points in time. With Pakistan, the relationship has been perpetually adversarial. The third category includes Bhutan and Maldives whose relations are marked by friendship and cooperation, free of any bilateral problems. It is needless to say that Jawaharlal Nehru emphasized on friendly relations with the neighboring countries. The subsequent Prime Ministers of India especially I.K. Gujral had advocated in making of peaceful and friendly relations with the subcontinental countries. He had given a unique idea to foster bilateral relations with the neighbors. His idea is known as ‘Gujral Doctrine’. A dramatical change has been witnessed in Indian foreign policy since 1991.In the post-Cold War period, India’s national security has been vehemently threatened by terrorism, which originated from Pakistan-Afghanistan and partly Bangladesh. India has required a cooperative security, which can be made by mutual understanding among the South Asian countries. Additionally, the countries of South Asia need to evolve the concept of ‘Cooperative Security’ to explain the underlying logic of regional cooperation. According to C. Rajamohan, ‘cooperative security could be understood, as policies of governments, which see themselves as former adversaries or potential adversaries to shift from or avoid confrontationist policies.’ A cooperative security essentially reflects a policy of dealing peacefully with conflicts, not merely by abstention from violence or threats but by active engagement in negotiation, a search for practical solutions and with a commitment to preventive measures. Cooperative assumes the existence of a condition in which the two sides possess the military capabilities to harm each other. Establishing cooperative security runs into a complex process building confidence. South Asian nations often engaged with hostility to each other. Extra-regional powers have been influencing their powers in this region since a long time. South Asian nations are busy to purchase military equipment. In spite of weakened economic systems, these states are spending a huge amount of money for their security. India is the big power in this region in every aspect. The big states- small states syndrome is a negative factor in this respect. However, India will have to an initiative to extended ‘track II diplomacy’ or soft diplomacy for its security as well as the security of this region.Confidence building measures could help rejuvenate not only SAARC but also build trust and mutual confidence between India and its neighbors in South Asia. In this paper, I will focus on different aspects of India’s policy towards it, South-Asian neighbors. It will also be searched that how India is dealing with these countries by using a mixed type of diplomacy – both idealistic and realistic points of view. Security and cooperation are two major determinants of India’s foreign policy towards its South Asian neighbors.

Keywords: bilateral, diplomacy, infiltration, terrorism

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Authors: Muhammad Alhada Fuadilah Habib, Ayla Karina Budita, Cut Rizka Al Usrah, Mukhammad Fatkhullah, Kanita Khoirun Nisa, Siti Muslihatul Mukaromah

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In this contemporary era, the term of development often emphasised merely on the economic growth aspect. Development of a program often considered as superior by the government, in fact, it often raises various problems. The problems occur because the development policies determined by the government tend to favor private entrepreneurs and impose on the oppression toward the community. The development promised to prosper the community's life, turn out in fact of harming the community, threatening the survival of the community and damaging the ecosystem of nature where the community hangs their life to it. Nowadays many natural resources should be used for the community’s life prosperity. However, the prosperity is conquered by the private entrepreneurs that are regulated through the free market mechanism and wrapped in democratization. This condition actually is a form of neoliberalism that builds new administration order system which is far from the meaning of the word democracy. The government should play more role in protecting community's life and prosperity, but in fact, the government sides with the private entrepreneurs for the sake of the economic benefits regardless of other aspects of the community’s life. This unjustified condition presents a wide range of social movements from the community in response to the neoliberalis policy that actually eliminates the doctrine of community sovereignty. Social movements performed by Yogyakarta south coastal area community, as the focus of the discussion in this paper, is one of the community’s response toward the government policies related to the construction of the ferruginous sand quarry which is tend to favor on private entrepreneurs and highly prejudicing or even threatening the survival of Yogyakarta south coastal area community. The data collection in this study uses qualitative research methods with in-depth interview data collection techniques and purposive informant determination techniques. This method was chosen in order to obtain the insightful data and detailed information to uncover the injustice policies committed by the government-private entrepreneurs toward Yogyakarta south coastal area community. The brief results of this study show that the conflicts between the community and government-private entrepreneurs occurred because of the differences of interests and paradigm of natural resource management. The resistance movements done by the community to fight back the government-private entrepreneurs was conducted by forming an organization called Paguyupan Petani Lahan Pantai Kulon Progo (PPLP-KP). This organization do the resistances through two ways; firstly, quiet action done through various actions such as; refusing against the socialization, performing discussion to deliberate their argument with the government-private entrepreneurs, complaining the problems to the central government, creating banners or billboards which contain the writing of rejection, performing pray rituals to invoke the justice from the God, as well as instill the resistance ideology to their young generation. Secondly, the rough action also is done through various actions such as; doing roadblocks, conducting rallies, as well as doing clash with the government apparatus. In case the resistances done by the community are seen from the pattern. Actually, the resistances are reaction toward the aggression carried out by the government-private entrepreneurs.

Keywords: community resistance, conflict, ferruginous sand quarry construction, social movement

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Authors: Sara Dragisic

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Using the theoretical analysis of the birth of biopolitics that Foucault performed through the history of liberalism and neoliberalism, in this paper we will try to show how, precisely through problematizing the role of international institutions, the model of governance differs from previous ways of objectifying body and life. Are the state and its mechanisms still a Leviathan to fight against, or can it be even the driver of resistance against the proponents of modern governance and the biopolitical power? Do paradigmatic examples of biopolitics still appear through sovereignty and (international) law, or is it precisely this sphere that shows a significant dose of incompetence and powerlessness in relation to, not only the economic sphere (Foucault’s critique of neoliberalism) but also the new politics of freedom? Have the struggle for freedom and human rights, as well as the war on terrorism, opened a new spectrum of biopolitical processes, which are manifested precisely through new international institutions and humanitarian discourse? We will try to answer these questions, in the following way. On the one hand, we will show that the views of authors such as Agamben and Hardt and Negri, in whom the state and sovereignty are seen as enemies to be defeated or overcome, fail to see how such attempts could translate into the politicization of life like it is done in many examples through the doctrine of liberal interventionism and humanitarianism. On the other hand, we will point out that it is precisely the humanitarian discourse and the defense of the right to intervention that can be the incentive and basis for the politicization of the category of life and lead to the selective application of human rights. Zizek example of the killing of United Nations workers and doctors in a village during the Vietnam War, who were targeted even before police or soldiers, because they were precisely seen as a powerful instrument of American imperialism (as they were sincerely trying to help the population), will be focus of this part of the analysis. We’ll ask the question whether such interpretation is a kind of liquidation of the extreme left of the political (Laclau) or on this basis can be explained at least in part the need to review the functioning of international organizations, ranging from those dealing with humanitarian aid (and humanitarian military interventions) to those dealing with protection and the security of the population, primarily from growing terrorism. Based on the above examples, we will also explain how the discourse of terrorism itself plays a dual role: it can appear as a tool of liberal biopolitics, although, more superficially, it mostly appears as an enemy that wants to destroy the liberal system and its values. This brings us to the basic problem that this paper will tackle: do the mechanisms of institutional struggle for human rights and freedoms, which is often seen as opposed to the security mechanisms of the state, serve the governance of citizens in such a way that the latter themselves participate in producing biopolitical governmental practices? Is the freedom today "nothing but the correlative development of apparatuses of security" (Foucault)? Or, we can continue this line of Foucault’s argumentation and enhance the interpretation with the important question of what precisely today reflects the change in the rationality of governance in which society is transformed from a passive object into a subject of its own production. Finally, in order to understand the skills of biopolitical governance in modern civil society, it is necessary to pay attention to the status of international organizations, which seem to have become a significant place for the implementation of global governance. In this sense, the power of sovereignty can turn out to be an insufficiently strong power of security policy, which can go hand in hand with freedom policies, through neoliberal governmental techniques.

Keywords: neoliberalism, Foucault, sovereignty, biopolitics, international organizations, NGOs, Agamben, Hardt&Negri, Zizek, security, state power

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