Journal articles on the topic 'Law (except legal practice and international law)'
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1
Марку, Жерар, and Zherar Marku. "THE LAW AND LAW-MAKING IN FRANCE." Journal of Foreign Legislation and Comparative Law 1, no. 4 (October 29, 2015): 0. http://dx.doi.org/10.12737/14262.
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The article deals with the relation of the law and departmental law-making in France according on three types: the unity, “spreading”, the openness of the law-making process. The first view of the law-making in France is the unity in the framework of which the question of ensuring the unity of the European Union is developed. Particular attention is paid to the government’s management of the legislative process, the government authority to issue by-laws, the procedure of drafting legislation and decrees of general importance. The second type of realization of law-making in France — outside the Government activity law-making — “spreading”. The impact on the performance of law-making is revealed, new sources of law-making such as acts of European Union are marked, independent state bodies, local self-government. Particular attention is paid to such new phenomena as the legal normativity soft law (“soft law”, “droit souple”). Regarding the third kind of the law-making — the openness — it is noted that the process of law-making is not limited to the relationship between the Government and the Parliament, and all sectors of society and interest groups are involved in that process. It is noted that the amendment to the Constitution, adopted in 2008, resulted in a significant reform of the legislative production. When writing this article except for general scientific research methods (analysis and synthesis), the author has used the formal-logical, theoretical, systematic legal, historical and comparative law. Scientific novelty of the work lies in the comprehensive and systematic approach to the study of the relation of the law and guided-governmental lawmaking in France, which is conducted in three species. Analysis of the development of the main types of law-making in France and law inforcement practice at the present stage is of great scientific and practical importance. The research results can be taken into account in the development of proposals for the implementation in the Russian Federation of new approaches in law-making, adequate to modern socio — economic development of the country, relevant to the international-legal standards and the experience of foreign countries.
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Hofmann, Mahulena, and Martin Faix. "Der Einfluss und die Stellung des Völkerrechts in den Verfassungssystemen einiger ost- und Mitteleuropäerfassungssystemen Einiger Ost- und Mitteleuropäischer Transformationsstaaten." Potchefstroom Electronic Law Journal/Potchefstroomse Elektroniese Regsblad 11, no. 3 (June 26, 2017): 40. http://dx.doi.org/10.17159/1727-3781/2008/v11i3a2767.
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Some twenty years ago, the importance of international law, particularly for practical purposes, could be described as marginal in national legal orders in the socialist Central and Eastern European (CEE) Countries. The main reason for this was the dualist approach in regard to international law. Fundamental political and economic changes, such as the Velvet Revolution in Czechoslovakia, marked the end of the cold war and the beginning of a transition process. The changes in national legal orders have been accompanied by substantial modifications in the area of constitutional law, mostly resulting in the adoption of entirely new or radically modified constitutions. This is true also for the Czech Republic, Slovakia, Poland and the Russian Federation. One of the most remarkable common characteristics of the new constitutions of the CEE countries is the shift from a dualistic approach to a broad openness to international law. Despite this common feature the manifestation of this openness cannot be regarded as uniform – the methods used by states to deal with international law and to ensure the conformity of the domestic legal order with their international obligations vary. The common denominator of the constitutional orders under review is the fact that the rules of international law are considered to be a part of their national legal orders. General provisions concerning the relationship between national law and international law can be found in the Czech, Russian and Polish constitutions, but not in the Slovak constitution. The common feature of all four constitutional texts is that they take a clear position on the status of treaties, stipulating conditions (approval by parliament, promulgation, etc) under which a treaty or certain categories of treaties (eg as listed by Article 49 of the Czech Constitution) will be considered to be part of the national legal order, as well as the hierarchical status of treaties in the case of a conflict with national law. In all four countries under consideration, the rank of treaties lies between the level of the Constitution and that of ordinary parliamentary statutes. The situation is considerably different in regard to the role of customary international law: only the Russian Constitution includes not only treaties but also customary international law in the legal order. Nevertheless, Slovak, Czech and Polish constitutional provisions stipulate the commitment of the states to fulfil their obligations under international law, including customary international law. Even though legally binding, these provisions are not identical with general provisions incorporating certain categories of international law as stated above. The openness to international law is demonstrated also by the inclusion of provisions pursuant to which states can transfer certain powers to international organizations. (Such provisions were included in the constitutions of e.g. Slovakia, Poland and the Czech Republic in the context of their integration into the EU for the purpose of ensuring the direct application of Community law.) Thus, if considering the formal openness to international law, a high degree of willingness to open the domestic legal orders to international law can be discerned in the constitutional systems of the states under review. However, the extent of constitutional provisions on the relation of a particular state to international law does not necessarily strengthen its application in practice, as can be observed in the legal order of the Russian Federation. When determining the factual status of international law and its incorporation in the domestic legal orders of the CEE countries, the judicial practice of national courts is of great importance, in particular the judicial practice of constitutional courts. The question of the role of international law in the decisions of constitutional courts appears to be even more interesting because of the fact that implementation of constitutional jurisdiction belongs to one of the most important innovations of CEE transition countries after the end of the cold war. Their broad competencies in respect to international law can be seen as an additional indicator of the openness of their legal orders towards supranational legal rules. International law plays an important role not only as a subject of judicial review but also as a criterion of constitutionality applied in national procedures before the constitutional courts. The extensive jurisprudence of national constitutional courts based on international law is to a large extent characteristic of the CEE Countries. Their constitutional courts often rely on international law, especially human rights, when reviewing the constitutionality of domestic acts. This underlines the fact that general constitutional provisions on international law do not remain only a ‘dead letter.’ However, when demonstrating their openness towards international law, constitutional courts sometimes exceed the limits of their competences, as can be observed e.g. in the case of the Czech Constitutional Court. (Despite the fact that the changes introduced by the Constitution in 2001 caused it to lose the competence to use international law as a criterion for its decisions, the Court continued to base its decisions partly on international law.) Generally it can be argued that the acceptance of international law is remarkably high in the legal orders of the countries under review – in particular when taking into consideration the relatively short time which was needed not only to formally ensure the role of international law, but also to ensure its implementation in practice, most notably in the judicial practice of constitutional courts. This does not mean, however, that there are no difficulties which have to be solved in the future. The application of customary international law by national courts is an example of this. However, the opening of national legal systems of the formerly totalitarian states towards international law has undoubtedly had a positive influence on the process of their transformation towards the rule of law.
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Dimitrijevic, Dusko. "International legal treatment of boundary disputes in the territory of former Yugoslavia." Medjunarodni problemi 55, no. 3-4 (2003): 354–73. http://dx.doi.org/10.2298/medjp0304354d.
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The Yugoslav case is central to any study of the issue of State succession in modern international law. The international response to the Yugoslav crises was largely articulated through the Arbitration Commission of the European Community and its legal opinions in relation to dissolution of SFRY. Reinforcing the principle uti possidetis, Arbitration Commission admitted its general scope in international law. The application of the principle resulted in administrative boundaries being transformed into international frontiers. The territory passes to the new States on the basis of the pre-existing administrative boundaries, regardless of the procedure by which this boundaries were established. This conclusion follows from the principle of respect for the territorial status quo which is essential for stability of the successor States. The succession to existing administrative territorial limits probably cannot extend to the every uti possidetis line between new successor States and therefore no successor State can be deprived of its inherent rights what in Yugoslav case confirms transitional function and retrospective character of principle which is necessary for final international delimitation. This international law principle could be understand only in historical context. The principle has difficult task to produce new international recognized boundaries in order to protect the independence and stability of new States. In positive international law the essence of the principle lies in confirmation of territorial status quo, except where the States concerned agree otherwise. It means that principle not able to resolve all boundary problems. It should perform possible legal title if the formal basis of consent default. In the case of succession of SFRY, a boundary line not preclude the dissentient parties from citing the contents of any ?indicia of title? because the clear legal title hasn?t existed in the former composite State. Where the administrative boundary which is being transformed into international boundaries by virtue of the principle uti possidetis cannot be identified by any legal act or subsequent State practice with regard to a particular territory the new limitrophe States must allow for the application to the other international law rules. That corresponded the principle of ?effectivit?s? which play an essential role. When particular difficulties in the application of general principle arose, the principle of equity infra legem might be possible solution. But analysed international practice has not shown any mandatory legal rules apply in the present context. Although many methods of delimitation could be used in practice. At last the exact location of a boundary line would be amicably settled by the successor States and it therefore is important to unravel the confused boundary stands in order to see the problem in correct perspective.
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KIRKBY, COEL. "RWANDA'S GACACA COURTS: A PRELIMINARY CRITIQUE." Journal of African Law 50, no. 2 (October 2006): 94–117. http://dx.doi.org/10.1017/s0021855306000106.
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Just over a decade after the 1994 genocide, over 1,000 accused languish in Rwandan prisons. The International Criminal Tribunal for Rwanda and the nation's domestic courts have struggled to bring them to trial. In response, the Rwandan government has embarked on an experiment in mass justice: the gacaca courts. The new courts are inspired by traditional dispute resolution mechanisms. The judges are elected by popular vote in their cells to hear cases such as murder, assault and property offences. The system permits appeals (except for property crimes), though not to the domestic courts. The setting is less formal than criminal courts and promotes confessions from perpetrators and forgiveness from survivors. Coupled with this process are two related schemes for victim compensation and community service for those convicted. This article examines these courts from the perspectives of retributive and restorative justice, within the Rwandan context. In practice, the gacaca courts embody both principles, as well as their tension. The judges are lay persons, yet are engaged in complex legal adjudication. The accused have no right to legal representation, nor an appeal to the domestic courts. More importantly, survivors are marginalized by the process as the practical and political pressures on the Rwandan government have made them opt for expediency (more and faster trials) over reconciliation (survivor compensation and manifest regret by the perpetrators). The gacaca courts hold out much promise of reconciling a deeply divided society, but redressing the needs of victims must become a priority.
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von Bogdandy, Armin, and Ingo Venzke. "Beyond Dispute: International Judicial Institutions as Lawmakers." German Law Journal 12, no. 5 (May 1, 2011): 979–1003. http://dx.doi.org/10.1017/s2071832200017193.
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The increasing number of international judicial institutions, producing an ever-growing stream of decisions, has been one of the dominant features of the international legal order of the past two decades. The shift in quantity has gone hand in hand with a transformation in quality. Today, it is no longer convincing to only think of international courts in their role of settling disputes. While this function is as relevant as ever, many international judicial institutions have developed a further role in what is often called global governance. Their decisions have effects beyond individual disputes. They exceed the confines of concrete cases and bear on the general legal structures. The practice of international adjudication creates and shifts actors' normative expectations and as such develops legal normativity. Many actors use international judicial decisions in similar ways as they do formal sources of international law. To us, this role of international adjudication beyond the individual dispute is beyond dispute.
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Herbert, Eti Best, and Fasilat Abimbola Olalere. "What Is Economic Globalization Without Trans-boundary Migration?" Global Trade and Customs Journal 15, Issue 10 (September 1, 2020): 493–503. http://dx.doi.org/10.54648/gtcj2020088.
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The world is often regarded as a global village or borderless globe where various countries freely interconnect and interrelate towards achieving a global goal. Globalization has occasioned international cooperation amongst States through the formation of several treaties and international organizations with economic objectives. This article evaluates the law and attitude of States and International organizations towards economically motivated trans-boundary migration. Particular reference is made to World Trade Organization(WTO), European Union(EU), African Union (AU), Economic Community of West African States (ECOWAS) and North American Free Trade Association(NAFTA). Findings reveal that the legal and institutional frameworks in support of trans-boundary economic migration are very weak, thereby allowing States’ interest to prevail over the globalization objectives. State practices are geared towards placement of several obstacles, such as imposing criminal sanctions, which limits trans-boundary economic migration. This prejudice is more obvious when the trade in service is a South-North movement of labour. These challenges have led to the irresistible conclusion that economic globalization is but a political fiction yet to take root in reality. It is further contended that, the puzzle of economic globalization cannot be completely fixed, except States fully embrace, accepte and liberalize the missing piece of trans-boundary migration. Globalization, Trans-boundary migration, Economic migration, South-North movement, Trade liberalization.
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Zakrevskaya, V. "POLITICAL MYTHS USED TO DELEGITIMISE GAMBLING IN UKRAINE." ASJ 1, no. 57 (January 31, 2022): 28–36. http://dx.doi.org/10.31618/asj.2707-9864.2021.1.57.159.
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The process of gambling market legalization in Ukraine following more than eleven years of statutory ban on the organization of all types of gambling, except for lotteries, encounters opposition from both the shadow economy and politicians and officials, who, in addition to objective reasons for their interest in this political issue, may be involved in the rent-seeking behaviour due to the existing status quo. Now that the Law of Ukraine “On State Regulation of Activities in the Organization and Conduct of Gambling” adopted in July and effective from 13 August 2020 has defined the general framework of the regulatory model equating all gambling types and obliging operators to obtain relevant licenses, the leverage over the market ended up in the hands of the National Regulator (CRGL). Therefore, the state budget began to receive revenue from the gambling market, avoiding corruption flows. That is one of the reasons the emerging gambling market faced quite serious resistance at a number of levels, from the Parliament to local governments which, lacking access to hard cash, collect reputational bonuses from the exploitation of populist slogans to ban the organization and conduct of gambling in their jurisdictions despite the specialized Law. In order to deflate such opposition, joint efforts of both the legislative (at the level of the Verkhovna Rada of Ukraine) and executive power (represented by law enforcement agencies and the Cabinet of Ministers of Ukraine), as well as industry associations uniting legal operators are needed. In turn, public policy on gambling requires significant adaptation and reform in order to come as close as possible to the country’s present-day realities, as well as increase the level of compliance with international practice. For better understanding and planning of adaptation and reform, the examination of both the market and the changes taking place therein, including sociological studies enabling more adequate public and regional policies on gambling, is required.
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Othman, Arez Mohammed Sediq. "The Possibility of Nationalization by the Kurdistan Regional Government of Iraq under the Light of Signed Petroleum Contracts and Establishment of Kurdistan National Oil Company (KNOC)." Journal of University of Human Development 6, no. 1 (March 15, 2020): 35. http://dx.doi.org/10.21928/juhd.v6n1y2020.pp35-43.
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In the past 20 years, Kurdistan Regional Government (KRG) of Iraq has signed hundreds of Production Sharing Contracts with many international oil companies to expand investment and develop its oil sector. According to the applicable laws in the region, in particular Oil and Gas Law No.22 of 2007, government shall work to establish Kurdistan National Oil Company (KNOC) to take charge of petroleum operations. Meanwhile, according to the same law, the duration of petroleum production sharing contracts shall not exceed 20 years with the possibility of five years extension. Despite the fact that KRG is abided to many legal obligations to share the produced oil under production sharing contracts, there is always a question of whether KRG will be able to administer its oil industry and what will be the future of these oil contracts? This paper argues that KRG cannot nationalize (by appropriating the whole oil industry and assets of foreign oil companies) its petroleum sector even after the establishment of KNOC as there are many legal terms preventing it from nationalizing the oil industry besides the lack of technical ability to run the sector without the direct support from foreign oil companies. Moreover, the paper also discusses different possibilities after the end of oil contracts with foreign international companies; Does KRG continue with the current contractual form or it will shift to other forms of contract such as service contract to develop oil industry in the region? It suggests that the best practice for the government is to institutionalize its oil sector with receiving direct support from oil companies. The establishment of KNOC is considered to be an effective step towards institutionalization of oil sector in the Iraqi Kurdistan Region.
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MAVROIDIS, PETROS C., NIALL MEAGHER, THOMAS J. PRUSA, and TATIANA YANGUAS. "Ask for the Moon, Settle for the Stars: What is a Reasonable Period to Comply with WTO Awards?" World Trade Review 16, no. 2 (March 10, 2017): 395–425. http://dx.doi.org/10.1017/s1474745616000598.
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AbstractThe World Trade Organization (WTO) dispute settlement process allows a defending Member a ‘reasonable period of time’ (RPT) to implement any findings that its contested measures are inconsistent with WTO law. If agreement on this RPT cannot be reached, Article 21.3(c) of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) provides for the possibility of arbitration on the length of the RPT. The DSU provides limited guidelines on the RPT, stating only that it should not normally exceed 15 months. In practice, Arbitrators have developed the standard that the RPT should reflect the shortest possible period under the domestic legal system of the defending Member to make the changes necessary to comply with the WTO rulings. Our research confirms that in practice Arbitrators have determined this period by ‘splitting the difference’ approximately between the periods suggested by the complaining and defending Member. In addition, the process appears to reward defending Members that request an RPT that exceeds the 15-month guideline in Article 21.3(c).
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Emery, Maria R., and Alan R. Pierce. "Interrupting the Telos: Locating Subsistence in Contemporary US Forests." Environment and Planning A: Economy and Space 37, no. 6 (June 2005): 981–93. http://dx.doi.org/10.1068/a36263.
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People continue to hunt, fish, trap, and gather for subsistence purposes in the contemporary United States. This fact has implications for forest policy, as suggested by an international convention on temperate and boreal forests, commonly known as the Montréal Process. Three canons of law provide a legal basis for subsistence activities by designated social groups in Alaska and Hawaii and by American Indians with treaty rights in the coterminous forty-eight states. A literature review also presents evidence of such practices by people from a variety of ethnic backgrounds throughout the nation. Teleological notions of development espoused by both neoliberal and Marxist scholars suggest that subsistence activities should not persist in a First World setting except as failures of the officially sanctioned economic system. However, alternative economic perspectives from peasant studies and economic geography offer a conceptual framework for viewing at least some subsistence activities as having a logic and values outside of, if articulated with, market structures. Meeting the Montréal Process goal of providing for subsistence use of forests will require research focused on local practices and terms of access to resources as well as their relationship to state and capital processes. We outline the basics of a research agenda on subsistence for an emerging First World political ecology.
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Gubska, Olena. "Features of the implementation of discretionary powers by subjects of power and courts of the method of protection during administrative proceedings." Slovo of the National School of Judges of Ukraine, no. 4(33) (March 15, 2021): 58–75. http://dx.doi.org/10.37566/2707-6849-2020-4(33)-5.
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This article aims to the study of discretionary powers of subjects of power and the courtof the method of protection during administrative proceedings. The article presents the concept of discretion, framework, the history of the emergence of the concept of discretionary powers and the consolidation of this concept not only in domestic legislation but also in international instrument. The author claims that not all decision-making powers of the authorities are discretionary. Discretion is valid only when, within the framework of the law, a state body can independently (at its own discretion) choose one of several options for a specific legal decision. At the same time, the powers of state bodies are not discretionary, when there is only one lawful and legally justified variant of behavior of the subject of power. It was noted that discretionary powers should be limited by the current legislations. Their unjustified expansion will contribute to illegal decisions, increase various negative phenomena, including abuse of power. The article analyzes the numerical practice of the European Court of Human Rights, which enshrines the principle of prohibiting the intervention of the judiciary in the discretion of state authorities and substituting themselves for these bodies by making decisions on cases of legal entities or individuals. At the same time, it is emphasized that the Code of Administrative Judicial Procedure does not contain clear provisions that should guide the courts in determining the limits of judicial discretion. However, the court must be guided by the rules of substantive and procedural law, the principle of the rule of law. On one side, the court cannot exceed the limits of its intervention, but on the other side, its intervention must be effective and sufficient to ensure the implementation of the tasks of administrative proceeding and review of decision, action or inaction of the subject of power in accordance with the criteria of the Code of Administrative Judicial Procedure of Ukraine (section 2). Establishing the fact that the subject of power has the right to act in deciding at its discretion and compliance with the subject of the application of all the conditions prescribed by law to obtain a positive result affects the method chosen by court to protect individual rights. Keywords: discretion, discretionary powers, limits of application, judicial control, exceeding of authority.
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SAYADYAN, HOVIK Y., and RAFAEL MORENO-SANCHEZ. "Forest policies, management and conservation in Soviet (1920–1991) and post-Soviet (1991–2005) Armenia." Environmental Conservation 33, no. 1 (March 2006): 60–72. http://dx.doi.org/10.1017/s0376892906002852.
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The extent and condition of forest ecosystems in Armenia have decreased drastically since the disintegration of the Union of Soviet Socialist Republics (USSR). This decline is not only a consequence of the recent history of the area, but also the result of decades of forest policies, management and forest-use practices. To reverse the negative trends, it is important for stakeholders, scientists, resource managers and policy makers (in Armenia and abroad) to understand the influential factors in the decline, yet such information is scarce, highly fragmented, written in Armenian or Russian, and inaccessible to the international community. This paper aims to contribute to the knowledge base of the international community by presenting and contrasting the most important issues and processes that have affected forest cover in Armenia during the USSR (1920–1991) and independence periods (1991–to date). For each period, the legal framework, the forest inventory practices, forest use, management and conservation practices, the forestry education, and the perception of the forests by forest communities and society at large are presented and discussed. Except for the social perception of the forests, the most relevant aspects of these issues have scarcely changed from one period to the next. There is a need to address the most pressing problems and improve the current conditions of the forests and the forestry sector in Armenia.
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VALKOVA, NATALIIA. "MANAGEMENT REPORT: INFORMATION AND REGULATORY PROVISIONS BY THE SUBJECTS OF FORMATION." HERALD OF KHMELNYTSKYI NATIONAL UNIVERSITY 300, no. 6 (December 3, 2021): 184–89. http://dx.doi.org/10.31891/2307-5740-2021-300-6-29.
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In terms of harmonization of domestic legislation with the EU legal field, an important area of regulation is accounting, as an information base for the economic development of individual enterprises and economies, and the European region and the world economy as a whole, especially given the informatization and globalization of socio-economic processes. However, the lack of experience in generating non-financial reports, especially in medium-sized enterprises and financial institutions belonging to micro and small enterprises, and the non-regulated form of the report somewhat complicate the process, so the research of the structure and information content of the management report is relevant. The article examines the legal regulation of the report on management in Ukraine, the main areas of information coverage, depending on the scope of operation, size, and nature of capital formation. The list of basic information to be disclosed in the management report is determined for enterprises (except banks, budgetary institutions, micro-enterprises, and small enterprises), for joint-stock companies, for financial institutions with share capital, for banks and banks with share capital. The difference in the content of the management report of all these entities arises due to differences in the composition of users of information and their needs for it, to make management or other decisions. Enterprises that prepare financial statements by international reporting standards may prepare a management report by domestic law. Any form of management report permitted by IFRS Practice Statement 1 “Management Commentary” In general, the history of non-financial reporting has proven its financial effectiveness, but at the same time, there are some problems associated with its formation. First, due to the lack of a regulated form and high dynamism of the external environment, there is a problem of the content of the report, which would meet the needs of stakeholders and work on a positive image of the company. Secondly, there is the problem of verifying the management report and confirming its compliance with the financial statements of the enterprise, especially in the non-financial component. And, thirdly, another problem that arises from the second – is the tax consequences of publishing a management report, they can be both negative and positive. All these issues need further research and proposals to address them.
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Sofinska, Iryna. "Legal Vision of Naming in Nordic States: Challenges for Ukraine." Law Review of Kyiv University of Law, no. 1 (April 15, 2020): 345–51. http://dx.doi.org/10.36695/2219-5521.1.2020.69.
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In this article, I research on few fundamental issues regarding naming. All Nordic states (Denmark, Iceland, Norway, Finland, and Sweden) apply the traditional name repertoire. Also, they create a catalog of names which is recommended for usage by the competent public authorities during the state registration of the person's birth. Both issues are supposed not to be an obstacle for citizens of the Nordic states to realize/enjoy the right to a name, prescribed in the UN Convention on the Rights of the Child (1989). It is declared in article 7(1) that "the child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality...". It is the first step to recognize every newborn as an individual, a human being with rights, duties, and privileges. Without them, children remain invisible both on the national and international levels, and they can not identify with society and the state.
On the contrary, these issues are fixed at the legislative level, demonstrate a part of the national identity of citizens, while taking into account current trends in the transformation of value perception of the name. Everybody must know himself/herself and how he/she fits into the world, state, community. Everybody must know who he/she is and to whom, what and why they belong, or what they are a part of. For these essential reasons, having a name and nationality are fundamental human rights acquired by everybody after birth. When both rights are honored, children can know themselves and identify with their state of birth/origin.
Parents, communities, and the state via government and other relevant public bodies should work for and support human rights for every child, provide ethnic and national knowledge and roots for them. Parents name their children and help them to acquire a pure sense of belonging to the family, nation, state, and world. Through this kind of belonging, children become members of the community, society, and country via identification.
Every citizen born in-country or extra-territory is responsible for the correct application of all-important rules determined by every state. Also, everyone who was born in one country and acquired name and nationality due to its rules and conditions should respect those of a host country while migrating. It is up to every country to formulate on the national level, its own indicators of identity regarding values, traditions, history, and culture. They draft a name catalog to preserve national identity from the erosion; they form it by names which are traditional for the particular nation-state. They adopt such a list of names (allowed or prohibited) by the legislature as an annex to the law/code. They implement rules, conditions, and the exact procedure to register the desired name or to reject it.
All Nordic countries have some shared vision on name's application: a name should be written following the ordinary rules of state (official) language orthography, it must not be foreign to the naming tradition of a particular country; it must indicate gender (not unisex or used by another sex bearer); it cannot be a surname except a patronymic as last given name; it shall not be approved if it can cause offense or can be supposed to cause discomfort for the one using it, etc. The same naming practice should be adopted and used in Ukraine.
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Bahri, Amrita, and Toufiq Ali. "Using dispute settlement partnerships for capacity building." Journal of International Trade Law and Policy 18, no. 1 (March 18, 2019): 19–38. http://dx.doi.org/10.1108/jitlp-07-2018-0028.
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Purpose World Trade Organisation grants rights to its members, and WTO Dispute Settlement Understanding (DSU) provides a rule-oriented consultative and judicial mechanism to protect these rights in cases of WTO-incompatible trade infringements. However, the DSU participation benefits come at a cost. These costs are acutely formidable for least developing countries (LDCs) which have small market size and trading stakes. No LDC has ever filed a WTO compliant, with the only exception of India-Battery dispute filed by Bangladesh against India. This paper aims to look at the experience of how Bangladesh – so far the only LDC member that has filed a formal WTO complaint – persuaded India to withdraw anti-dumping duties India had imposed on the import of acid battery from Bangladesh. Design/methodology/approach The investigation is grounded on practically informed findings gathered through authors’ work experience and several semi-structured interviews and discussions which the authors have conducted with government representatives from Bangladesh, government and industry representatives from other developing countries, trade lawyers and officials based in Geneva and Brussels, and civil society organisations. Findings The discussion provides a sound indication of the participation impediments that LDCs can face at WTO DSU and the ways in which such challenges can be overcome with the help of resources available at the domestic level. It also exemplifies how domestic laws and practices can respond to international legal instruments and impact the performance of an LDC at an international adjudicatory forum. Originality/value Except one book chapter and a working paper, there is no literature available on this matter. This investigation is grounded on practically informed findings gathered with the help of original empirical research conducted by the authors.
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Hennis, Edgar. "Case Practice in International Administrative Law." Leiden Journal of International Law 10, no. 2 (June 1997): 295–303. http://dx.doi.org/10.1017/s0922156597000241.
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International administrative law deals with legal recourse within public international organizations in respect of conflicts between employees (international civil servants) and the organization itself. Literature in this field of public international law is relatively scarce and jurisprudence is not easily accessible. Following a short survey of the main particulars in international administrative law this article will present a recent case in which the Appeals Board of the European Space Agency (ESA) rendered a decision. It deals with some typical legal issues which play a role in international administrative procedures. For practitioners, in particular, this case is an interesting example, of how international tribunals solve legal questions in respect of jurisdiction and substance.
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Kierzkowska, Danuta. "National language of law versus international unification of law." Across Languages and Cultures 1, no. 1 (September 24, 2000): 19–27. http://dx.doi.org/10.1556/acr.1.2000.1.2.
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This paper aims to distinguish between the process of unification of law and the unification of national languages of the law and to show that both processes are partial and governed by similar rules. Translators are not expected either to make their national legal terminology or phraseology similar to those applied in the international sources of law, except for new terms coined for legal concepts previously unknown in a given legal system. Attention of the reader is also turned to the ignorance sometimes demonstrated by subject specialists in the field of the term formation principles and, at the same time, the unquestionable importance of their part played in the process of legal translation, as well as the phenomenon of “local translation usage” that, irrespective of its irrational nature, should be taken into account. This is why there is a need to develop the awareness of the specific register and phraseology of the national language of the law as well as to train inexperienced translators in their native legal languages in order to avoid uncontrolled foreign influence and undesired linguistic interference.
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Simanjuntak, Efendi Lod. "Incoming Extradition in Indonesia and Its Implication to Human Rights." Walisongo Law Review (Walrev) 1, no. 2 (October 30, 2020): 113. http://dx.doi.org/10.21580/walrev.2019.1.2.5213.
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<p class="WalrevAbstrak"><span lang="NL">Law enforcement to transnational fugitives especially those perpetrators of money laundering with international dimension in Indonesia, in particular related to incoming extradition is needed to reconstruct. This is because hitherto, the decision to extradite is the decision of the executive branch as stipulated in Act No.1 of 1979 on Extradition. Hence, the consideration for the government to extradite is more on political concern rather than judicial. This practice is deemed neglecting the protection of human rights and creating legal uncertainty, especially in relation to detention period that could exceed beyond admissible time as stipulated in KUHAP because of the grace period on the issuance of the Presidential Decision. This research is doctrinal and field study. Based on findings in the field, incoming extradition request must be based on the court’s decision, or judicial order in the future to ensure protection of human rights and legal certainty of the person who is subject of the extradition and to the requested country.</span></p><p class="WalrevAbstrak"> </p><p class="IABSSS">Penegakan hukum terhadap buronan transnasional, terutama para pelaku pencucian uang di Indonesia, perlu sebuah rekontruksi khususnya terkait dengan ekstradisi. Ini karena sampai sekarang, keputusan untuk mengekstradisi adalah keputusan cabang eksekutif sebagaimana diatur dalam Undang-Undang No.1 tahun 1979 tentang Ekstradisi. Oleh karena itu, pertimbangan bagi pemerintah untuk mengekstradisi lebih pada masalah politik daripada peradilan. Praktik ini dianggap mengabaikan perlindungan hak asasi manusia dan menciptakan ketidakpastian hukum, terutama dalam kaitannya dengan masa penahanan yang dapat melebihi melampaui waktu yang dapat diterima sebagaimana diatur dalam KUHAP karena masa tenggang pada penerbitan Keputusan Presiden. Penelitian ini bersifat doktrinal dan studi lapangan. Berdasarkan temuan di lapangan, permintaan ekstradisi yang masuk harus didasarkan pada keputusan pengadilan, atau perintah pengadilan di masa depan untuk memastikan perlindungan hak asasi manusia dan kepastian hukum dari orang yang menjadi sasaran ekstradisi dan ke negara yang diminta.</p>
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Simanjuntak, Efendi Lod. "Incoming Extradition in Indonesia and Its Implication to Human Rights." Walisongo Law Review (Walrev) 1, no. 2 (April 9, 2020): 113. http://dx.doi.org/10.21580/walrev.2019.2.2.5213.
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<p class="WalrevAbstrak"><span lang="NL">Law enforcement to transnational fugitives especially those perpetrators of money laundering with international dimension in Indonesia, in particular related to incoming extradition is needed to reconstruct. This is because hitherto, the decision to extradite is the decision of the executive branch as stipulated in Act No.1 of 1979 on Extradition. Hence, the consideration for the government to extradite is more on political concern rather than judicial. This practice is deemed neglecting the protection of human rights and creating legal uncertainty, especially in relation to detention period that could exceed beyond admissible time as stipulated in KUHAP because of the grace period on the issuance of the Presidential Decision. This research is doctrinal and field study. Based on findings in the field, incoming extradition request must be based on the court’s decision, or judicial order in the future to ensure protection of human rights and legal certainty of the person who is subject of the extradition and to the requested country.</span></p><p class="WalrevAbstrak"> </p><p class="IABSSS">Penegakan hukum terhadap buronan transnasional, terutama para pelaku pencucian uang di Indonesia, perlu sebuah rekontruksi khususnya terkait dengan ekstradisi. Ini karena sampai sekarang, keputusan untuk mengekstradisi adalah keputusan cabang eksekutif sebagaimana diatur dalam Undang-Undang No.1 tahun 1979 tentang Ekstradisi. Oleh karena itu, pertimbangan bagi pemerintah untuk mengekstradisi lebih pada masalah politik daripada peradilan. Praktik ini dianggap mengabaikan perlindungan hak asasi manusia dan menciptakan ketidakpastian hukum, terutama dalam kaitannya dengan masa penahanan yang dapat melebihi melampaui waktu yang dapat diterima sebagaimana diatur dalam KUHAP karena masa tenggang pada penerbitan Keputusan Presiden. Penelitian ini bersifat doktrinal dan studi lapangan. Berdasarkan temuan di lapangan, permintaan ekstradisi yang masuk harus didasarkan pada keputusan pengadilan, atau perintah pengadilan di masa depan untuk memastikan perlindungan hak asasi manusia dan kepastian hukum dari orang yang menjadi sasaran ekstradisi dan ke negara yang diminta.</p>
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Herrera, Luz E. "Community Law Practice." Daedalus 148, no. 1 (January 2019): 106–12. http://dx.doi.org/10.1162/daed_a_00542.
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Community-embedded law practices are small businesses that are crucial in addressing the legal needs that arise in neighborhoods. Lawyers in these practices attend to recurring legal needs, contribute to building a diverse profession, and spur community development of modest-income communities through legal education and services. Solo practitioners and small firm lawyers represent the largest segment of the lawyer population in the United States, yet their contributions to addressing the legal needs of modest-income clients are rarely recognized or studied. This essay sheds light on the characteristics, motivations, and challenges these law practices face in providing access to justice to modest-means communities.
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Szira, Zoltán, Hani Alghamdi, Erika Varga, and Kinga Bárdos. "Legal Tools in International Environmental Law." EU agrarian Law 10, no. 2 (December 1, 2021): 13–20. http://dx.doi.org/10.2478/eual-2021-0008.
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Abstract Environmental law concepts are expressed in conventions, international binding laws, state practice and soft law commitments. They may be applicable to all foreign community members. These are widely recognized and even approved in the practice of the state. A special feature of international environmental law is that many environmental issues are governed by non–binding soft–law instruments that allow faster responses to international environmental issues. Governments tend to resist legally binding treaty regulation for different reasons but are much more likely to adopt a written action plan or resolution, at least voicing a political will to address an issue. The numerous constitutional standards of several countries must be followed when negotiating international agreements: for example, the way the national parliament must approve and enforce a treaty. The paper investigates the regulation system of international environmental law.
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Yang, Tseming. "The Emerging Practice of Global Environmental Law." Transnational Environmental Law 1, no. 1 (March 16, 2012): 53–65. http://dx.doi.org/10.1017/s2047102511000069.
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AbstractSince the 1972 Stockholm Conference on the Human Environment, ecological pressures on our planet have grown more acute. Yet, modern environmental law has also continued to evolve and spread within international as well as among national legal systems. With the paths of international and national environmental law becoming increasingly intertwined over the years, international environmental legal norms and principles are now penetrating deeper into national legal systems, and environmental treaties are increasingly incorporating or referencing national legal norms and practices. The shifting legal landscape is also changing contemporary environmental law practice, creating greater needs for domestic environmental lawyers to be informed by international law and vice versa. This essay describes how domestic environmental law practice is increasingly informed by international legal norms, while the effective practice of international environmental law more and more requires enhanced awareness, and even understanding, of national environmental regulatory and governance systems. It illustrates these trends with the historical role and work of the United States Environmental Protection Agency’s Office of General Counsel.
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Kalicka-Mikołajczyk, Adriana. "Współpraca Unii Europejskiej z wybranymi państwami niedemokratycznymi Afryki Subsaharyjskiej w obszarze poszanowania praw człowieka." Studia nad Autorytaryzmem i Totalitaryzmem 43, no. 4 (December 31, 2021): 593–616. http://dx.doi.org/10.19195/2300-7249.43.4.45.
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In Art. 3, para. 5, the Treaty on European Union (TEU) lays down the objectives of the Union in relations with the wider world, which are further explained in detail in Art. 21. In the first place, para. 5 refers to the promotion of the Union’s values. The list of values can be found in Art. 2 TEU (“The Union is founded on…”), which lists the principle of democracy, the rule of law and respect for human rights, human dignity, freedom and equality. They are to be upheld and promoted by the Union in the wider world. Thus, they are directly linked to external policy. Next, the list of values in Art. 2 is repeated in Art. 3, para. 5 as objectives of the Union’s external policy and in Art. 21, para. 1 as principles. For this reason, international agreements concluded between the EU and third countries all contain a “human rights clause” as an essential element of the agreement, the violation of which might result in the suspension of the agreement. This article focuses on the human rights clause in relations between the EU and selected non-democratic Sub-Saharan African countries. The main legal basis governing bilateral relations between the EU and those countries is the Cotonou Agreement. The “human rights clause” is to be found in Art. 9 thereof. This clause is especially interesting since it is the only one that has been implemented in practice. Moreover, it is often presented as the most elaborate one, and as a consequence is very often shown as a “model” that should be followed in other international agreements, especially in association agreements. So, the “human rights clause” contained in the Cotonou Agreement has its own characteristic features. Firstly, as it was mentioned above, it is the only one that has been activated in practice. Secondly, the “non-execution clause” is much more detailed, and finally, much more emphasis is laid on political dialogue and on the consultation procedure. This paper provides a propaedeutic analysis of legal cooperation between the EU and selected non-democratic Sub-Saharan countries in the area of human rights protection. Its main objective is to answer the following questions: to what extent the EU cooperates with such countries? What are the issues the clause covers? Is it effective? To what extent could it be enhanced? For analysis, the following countries have been chosen: Chad, Ethiopia, Rwanda, Uganda, and Zimbabwe. According to the Freedom House’s annual Freedom in the World report, the Global Freedom Scores for all these countries do not exceed 35 points, which equates to lack of democracy. Moreover, another feature which all of them have in common is a very low score on the Human Development Index (HDI), which means that all of them belong to the poorest and least developed countries in the world.
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Kingsbury, Benedict, and Lorenzo Casini. "Global Administrative Law Dimensions of International Organizations Law." International Organizations Law Review 6, no. 2 (2009): 319–58. http://dx.doi.org/10.1163/157237409x12670188734311.
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AbstractSeveral important legal features of the contemporary practice of international organizations (IOs) are not easily accommodated in standard approaches to international organizations law. This article argues that Global Administrative Law (GAL) approaches may strengthen analysis of operational issues such as emergency actions by IOs and the human rights implications of IO activities, structural issues such as the involvement of IOs in field missions and in public-private partnerships, and normative issues concerning the production and effects of non-treaty regulatory instruments by IOs (guidelines, best practices, national policy assessments, and other documents rather amorphously analyzed under the 'soft law' rubric). In examining these activities as forms of administration (broadly understood), subject to precepts of good administration and legal standards concerning transparency, participation, reason-giving, review, and accountability, a GAL perspective provides a basis both for critique of problematic practices, and for increasing the effectiveness and legitimacy of some beneficial IO activities which are contentious or currently not undertaken. GAL also responds to the proliferation and differentiation of IOs and other entities in global governance through applying legal standards to their interactions, bringing a principled 'inter-public' approach to the legal relations among global public entities. GAL provides a valuable, and thus far overly neglected, addition to the field of international institutional law.
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정경수. "A Feminist Theory and Practice in International Law." KOOKMIN LAW REVIEW 25, no. 3 (February 2013): 237–70. http://dx.doi.org/10.17251/legal.2013.25.3.237.
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Shelton, Dinah. "Normative Hierarchy in International Law." American Journal of International Law 100, no. 2 (April 2006): 291–323. http://dx.doi.org/10.1017/s0002930000016675.
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Systems of law usually establish a hierarchy of norms based on the particular source from which the norms derive. In national legal systems, it is commonplace for the fundamental values of society to be given constitutional status and afforded precedence in the event of a conflict with norms enacted by legislation or adopted by administrative regulation; administrative rules themselves must conform to legislative mandates, while written law usually takes precedence over unwritten law and legal norms prevail over nonlegal (political or moral) rules. Norms of equal status must be balanced and reconciled to the extent possible. The mode of legal reasoning applied in practice is thus naturally hierarchical, establishing relationships and order between normative statements and levels of authority.
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Giladi, Rotem M. "The Practice and Case Law of Israel in Matters Related to International Law." Israel Law Review 32, no. 2 (1998): 355–92. http://dx.doi.org/10.1017/s0021223700015685.
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For the last two years, a five-party mechanism consisting of delegations of Israel, the United States, France, Syria and Lebanon, charged with implementing an Israeli-Lebanese understanding concerning South Lebanon has been in operation. Away from the public eye, this forum has thus far held around fifty sessions, each of which concluded with the producing of an agreed Report. Despite its limited powers and narrowly defined mandate, the significance of this forum cannot be ignored; its existence and the mode of its operations also gives rise to several important legal questions.This review will start by describing the historical and legal circumstances leading up to the April 1996 Understanding and the establishment of the Israel-Lebanon Monitoring Group. Thereafter, the operation of the Monitoring Group, its composition, functions, procedure and decision-making process will be presented. Then I will discuss the major legal questions arising from the existence and operation of the Monitoring Group. The documents relative to the work of the Monitoring Group are annexed to this review.
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Mason-Case, Sarah. "Professional Practice in International Climate Change Law." Proceedings of the ASIL Annual Meeting 112 (2018): 157–60. http://dx.doi.org/10.1017/amp.2019.11.
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Over the last few years, two international organizations launched global networks to connect legal professionals specializing in law as it pertains to climate change. The first textbook on international climate change law was published during this time and a second is was released in 2018. Such developments no doubt reflect the growing prominence of the subject in public discourse and regulatory efforts. More subtly, they point to an emergent community of lawyers working with and generating international climate law as a matter of professional practice.
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Dierks, Christian. "Legal Aspects of Telepathology." Analytical Cellular Pathology 21, no. 3-4 (2000): 97–99. http://dx.doi.org/10.1155/2000/563904.
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In some legal surroundings telepathology is considered a breach of registrational barriers. The recommendation of the G 8 states in Europe for required legislation in telemedicine suggests to recognise that the localization of the remote health care professional defines the site not only of licensure but also of liability. This approach must be considered helpful, since it can solve many problems brought about by the doubtful results of private international law and conventions like the European Union (EU) and Lugano Convention. Under today's conditions in private international law it must be considered essential to agree upon a choice of law and stipulate a court of jurisdiction when doing telepathology. However, the opposing aims of insuring the patients claims and avoiding jurisdictions that exceed the local expectations of the medical professional must be reconciled. Data protection and data security are other crucial topics that require attention. Generally speaking, the principles of minimum data exchange, anonymity, pseudonymity and cryptography must be established as a basis for all telepathology procedures. Only when personal data is needed, its use can be legitimated. Written consent of the patient is advised. To guarantee a cross‐border security level the regulations of the EU‐Data Protection Directive need to be transformed into national law. In practise, cross‐border dataflow shall only take place where the security level can be maintained even within the other country. Finally, reimbursement questions must be answered to establish a sound economical basis for telepathology. The spatial distance between the participants may yield the question, whether the service has been rendered to an extent necessary and sufficient for reimbursement. If reimbursement takes place on a cross‐border or cross‐regional level, severe disturbances of the health systems can occur. Regulation schemes or treaties need therefore to be developed to avoid such disturbances and encompass mutual standards of care as well as methods to balance reimbursement.
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Giladi, Rotem M. "The Practice and Case Law of Israel in Matters Related to International Law." Israel Law Review 29, no. 4 (1995): 720–46. http://dx.doi.org/10.1017/s0021223700014849.
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In 1995, the Association Agreement between Israel and the European Community was signed in Brussels. This instrument is the product of years of negotiations. Europe's traditional policy on a linkage between the nature of its economic and political ties with Israel and progress in the Middle East peace process have led to static relations between the two, despite the importance attached by the Community to the region as part of its Mediterranean policy. The achievements of the Israeli-Palestinian (and Israeli-Arab) peace process, which was renewed with the October 1991 Madrid Conference, have at last enabled Israel and the Community to establish the Association status sought by Israel. A true comprehensive understanding of the Association Agreement necessitates therefore an examination of several other subjects such as the previous relations between the sides and the legal arrangements institutionalising these relations; Israel's trade position with Europe; the European Community's Mediterranean Agricultural and Commercial policies, and many other. This, however, cannot be done within the limits of this paper. Instead, this section merely seeks to briefly survey the legal regime embodied in the Association Agreement, that is, its general structure, main features and important legal, economic and political provisions. It should be emphasised that no detailed analysis of the provisions of the Association Agreement is intended, for the Association Agreement encompasses many fields and areas.
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Vlasova, Galina B., Vasily I. Vlasov, and Svetlana V. Denisenko. "THE EMERGENCE OF INTERNATIONAL LAW." CBU International Conference Proceedings 6 (September 25, 2018): 848–52. http://dx.doi.org/10.12955/cbup.v6.1259.
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The emergence of international law and periodization of its development remain relevant today. In general, most scientists consider that there were limited manifestations of international law in the era of Antiquity and the European Middle Ages. However, the manifestations that did emerge are significant. In particular, the practice of settling interstate agreements in the Ancient East evidences such importance. In the context of ancient civilization, this practice reached a new level. It led to the emergence of sufficiently broad alliances of states and at the same time, customary international law, as was observed in the international legal practices in the times of Hellenistic era and the era of the Roman Empire.
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Möllers, Christoph. "It's about legal practice, stupid." German Law Journal 7, no. 12 (December 1, 2006): 1011–14. http://dx.doi.org/10.1017/s2071832200005265.
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With his book “The Gentle Civilizer of Nations”, the Finnish expert on international law Martti Koskenniemi, became the most widely read author in his field overnight. In the “Gentle Civilizer”, Koskenniemi presented a new history of international law between 1870 and 1960. The tremendous success of this book rested less on an amazing number of revealing observations, but rather on its new take on the history of this discipline. In Koskenniemi's interpretation, the scientific project of international law did not start off as an endeavour that was centred on the sovereignty of nation-states. Instead, the international lawyers of that era saw their subject in the light of the idealist political project of internationalism. When they were forced to give up their high hopes in the course of the 20th century — this is where the twist of the book lies — they not only abandoned their dreams, but also their craft as lawyers. They became mere engineers of international relations, pragmatists, and apologists of governmental power. In order to retrieve the craft of international law, Koskenniemi concludes, the discipline needs to handle legal forms in a politically reflective manner. Koskenniemi has labelled this squaring of the circle, in a much-cited expression, as the “Culture of Formalism.”
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Tur, Olga T., Marta B. Kravchyk, Iryna Yu Nastasiak, Myroslava M. Sirant, and Nataliya V. Stetsyuk. "Practice of applying international principles in private law relations." Journal of the National Academy of Legal Sciences of Ukraine 28, no. 4 (December 23, 2021): 223–31. http://dx.doi.org/10.37635/jnalsu.28(4).2021.223-231.
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National and international courts are increasingly turning to generally recognised international legal principles to regulate private law relations. This is necessitated, in particular, by the fact that the issues and disputes that modern participants in private law relations address to the courts are becoming more widespread. Thus, the practice of international justice and justice in Ukraine demonstrates that such international principles as the principle of justice, equality, non-discrimination, evolutionary interpretation, proportionality, legal certainty, and the rule of law are increasingly used in dispute resolution. This study investigated the application of international principles in private law relations. Based on the general legal research methods, the nature of international legal principles was analysed, the study considered their application in the above-mentioned Ukrainian court cases to the European Court of Human Rights, as well as the Constitutional and Anti-Corruption Courts of Ukraine. The study investigated the judicial practice of the European Court of Human Rights, whose decisions raise the issue of violation of rights and fundamental freedoms stipulated in the Convention for the Protection of Human Rights and Fundamental Freedoms and non-compliance with basic international legal principles, as well as highlighted the main trends of these disputes. Based on the results of the analysis, the study identified an insufficient level of the content specification regarding the principle of the rule of law and its features in the current legislation of Ukraine, which must be properly observed by both state authorities and citizens of Ukraine. Based on the conducted research, the authors formulated their scientific positions and conclusions aimed at improving the system of principles of private law relations
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Kadzharov, R. "Inheritance Relations in Private International Law." Bulletin of Science and Practice 6, no. 1 (January 15, 2020): 283–86. http://dx.doi.org/10.33619/2414-2948/50/34.
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The article discusses the legal problems of inheritance relations in the Russian Federation and foreign countries. The relevance of the topic under study is due to the need to form a legal environment emerging in the process of inheritance of tort obligations and the form of the will in Russian and foreign laws. A legal analysis of Russian legislation and international treaties, foreign legislation and judicial practice in the field of inheritance regulation in the Russian Federation and foreign countries is carried out. Particular attention is paid to the unification of international norms in the field of testament form. The author concludes that international law on inheritance has its drawbacks and requires further adjustments.
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Karshieva, Elvina. "Priority of International or National Law." Legal Concept, no. 1 (May 2022): 47–51. http://dx.doi.org/10.15688/lc.jvolsu.2022.1.6.
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Introduction: the priority role in the legal system of most countries all over the world is assigned to the basic law as a priority source of law. In practice, disputes often arise regarding the priority of applying the provisions of national or international law which prompts the author to define the goal, to understand which type of law is more significant. Methods: the methodological framework for the study is a set of methods of scientific cognition, among which the main ones are the methods of analysis and comparative law. Results: in the modern world, there is a wellestablished opinion that international legal provisions have exceptional priority over the national ones. At the same time, the legal systems of countries face contradictions in this regard and use arbitrary interpretations of such a trend. Conclusions: in the scientific community, the three most stable opinions have been formed on the interpretation of the importance of national law over international law. The first theory says that national law is always more important than international law, the second is based on the fact that these categories should be applied in practice equally, the third theory emphasizes that the norms of international law should adapt to the national legislation.
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van der Wilt, Harmen. "State Practice as Element of Customary International Law: A White Knight in International Criminal Law?" International Criminal Law Review 20, no. 5 (September 3, 2019): 784–804. http://dx.doi.org/10.1163/15718123-02001003.
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Inter-state practice is relatively scarce in the area of human rights and international criminal law. This article ventures to inquire how this has affected the process of identification of customary international law by international criminal tribunals and courts. The main conclusion is that the two components of customary international law – opinio juris and state practice – have become blurred. In search of customary international law, international tribunals have resorted to national legislation and case law of domestic courts. These legal artefacts can be qualified as both evidence of state practice and opinio juris. The author attempts to explain the reasons for this development and holds that, if properly applied, the methodology, while seemingly messy, comports with the nature of international criminal law.
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Linos, Katerina. "How to Select and Develop International Law Case Studies: Lessons from Comparative Law and Comparative Politics." American Journal of International Law 109, no. 3 (July 2015): 475–85. http://dx.doi.org/10.5305/amerjintelaw.109.3.0475.
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To develop international law claims, it is often critical to compare different countries’ laws. This essay explores how methods drawn from comparative law and comparative politics research can help international lawyers make comparative inquiries more simply and straightforwardly.International lawyers recognize three main sources of legal authority: treaties, custom, and general principles. Cross-national comparisons are deeply embedded in the very definitions of two of these three sources. To establish international custom, an international lawyer must show that a broad range of states consistently engage in a certain practice out of a sense of legal obligation. To establish a general principle, an international lawyer must show that it is “recognized by civilized nations”; in practice this requires that the principle be found in diverse legal families. Treaty interpretation does not necessitate cross-country comparison as a matter of definition: in theory, the text of the treaty itself could provide the requisite answers. However, in practice, international and domestic courts are typically faced with ambiguous treaty terms. To interpret them, they often turn to the jurisprudence of diverse states and to subsequent state practice, thus implicitly beginning a comparative inquiry. in sum, comparative international law is useful for identifying and applying international law, as this volume’s introduction explains.
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Bongiovanni, Giorgio, Giovanni Sartor, and Chiara Valentini. "Philosophy of Law and International Criminal Law: Between Peace and Morality." International Criminal Law Review 14, no. 4-5 (July 31, 2014): 738–67. http://dx.doi.org/10.1163/15718123-01405002.
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The legal philosophy of the 20th century has contributed to the development of international criminal law by rethinking fundamental legal concepts and theories concerning the nature of international law, its relation with national laws, the connection between the law and the State, and the very idea of responsibility. This was achieved, in the first place, through the reflection of Hans Kelsen, who put forward the idea of a system of enforceable criminal norms at the international level, directed at individuals and having a positive legal foundation. In the years immediately following the Second World War, a number of legal theorists and, in particular, Gustav Radbruch, argued in favour of a necessary connection between law and morality, on whose basis it could be claimed that the worst atrocities were punishable even when allowed by state norms, and even in the absence of positive international norms. In the last decade, the practice of international criminal law, through ad hoc tribunals and the International Criminal Court, has stimulated theoretical reflections on a variety of further fundamental issues, like impartiality, judicial truth, justification of punishment, side-effects of prosecution and transitional justice.
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Tan, Celine. "Beyond the ‘Moments’ of Law and Development: Critical Reflections on Law and Development Scholarship in a Globalized Economy." Law and Development Review 12, no. 2 (May 27, 2019): 285–321. http://dx.doi.org/10.1515/ldr-2019-0014.
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Abstract This paper aims to review and assess the contributions and limitations of law and development (L&D) as a field of legal scholarship in relation to the constitution of the international economy and global economic governance. It seeks to reflect on the theoretical and methodological contributions of L&D theory and practice on the development of international legal scholarship, particularly in the rapidly evolving field of international economic law. The intersections of economic theory, jurisprudence and legal theory and the institutional practice of development agencies and international economic organizations which are the focus of L&D scholarship provide a useful interdisciplinary prism through which developments in the regulatory framework of the global economy can be studied. Mapping the ways in which what Trubek and Santos call the three overlapping spheres of L&D – economic theory, legal theory and institutional practices – enables us to chart, understand and, where necessary, contest, the shifts in development theory and policy and institutional practice that influence and shape legal reform and scholarship.
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Byrne, Rosemary, and Thomas Gammeltoft-Hansen. "International Refugee Law between Scholarship and Practice." International Journal of Refugee Law 32, no. 2 (June 2020): 181–99. http://dx.doi.org/10.1093/ijrl/eeaa011.
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Abstract Current challenges to the traditionally privileged position of law in both refugee policy and refugee studies invite scholars to consider carefully the approach we take to our craft. This article argues that refugee law scholarship is surrounded by thin walls, as researchers broker the ‘dual imperative’ to simultaneously advance knowledge and protection in a field heavily influenced by policy interests and networks of practitioners that actively take part in, and promote, scholarly production. These close links between the field and the policy world continue to shape research agendas, methodologies, and scholarly positions. This article draws from Bourdieusian field theory and legal sociology to offer a prism through which to look at the forces that influence refugee law research and to consider their implications for scholarship. It is argued that greater sensitivity to the underlying dynamics of our profession is essential, not only to ensure more inclusivity in the community of scholars and expand the current canon of refugee law, but ultimately to sustain claims to policy relevance.
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Franck, Thomas M. "Proportionality in International Law." Law & Ethics of Human Rights 4, no. 2 (September 30, 2010): 231–42. http://dx.doi.org/10.2202/1938-2545.1049.
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Across a broad range of subjects, there is now wide agreement that the principle of proportionality governs the extent to which a provocation may lawfully be countered by what might otherwise be an unlawful response. That is the central role assigned to proportionality in international law and it is deeply rooted in the cultural history of societies. However, if the core institutions of a legal system are too weak to be relied upon to take remedial action against wrongdoers, then they must at least be authorized to license appropriate action by the wronged party and to insure that its response remains within prescribed parameters.The practice described in this essay demonstrates that a high degree of accord is emerging across a broad range of issues to the appropriate standards by which the proportionality of countermeasures can be assessed. The practice of various institutions authorized to render second opinions as to the compliance with those standards is gradually narrowing the range of indeterminacy inherent in the term proportionality. Some of this case law has been disappointingly episodic. The well-crafted second opinion, through its precision, its invocation of precedent, and its careful weighing of the probity of the facts presented to it, deepens and narrows the jurisprudential stream while strengthening its embankments.If applied in practice through second opinions rendered by legitimate institutions, proportionality is an example of an indeterminate principle becoming gradually empowered to provide persuasive answers to difficult questions and, thereby, case by case, building the objective determinacy of the principle.
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Mazel, Odette. "Queer Jurisprudence: Reparative Practice in International Law." AJIL Unbound 116 (2022): 10–15. http://dx.doi.org/10.1017/aju.2021.69.
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Queer theory's commitments are radical and disruptive. They have operated to interrogate the definition and reinforcement of sexuality and gender categories, and to expose and problematize normalized relations of power and privilege in the institutional structures and systems in which we live and operate. Queer's deconstructive and anti-normative (or non-conformist) tendencies, however, can be antithetical to international LGBTQIA+ law reform projects. In much of queer scholarship, human rights activism is framed as reinforcing heteronormative structures of knowledge and power and promoting fixed ideas of monogamy, social reproductivity, and gender identity. In this essay, I work with the tension between queer theory and the law to frame the continued pursuit of human rights by LGBTQIA+ people as queer jurisprudence. I do so by drawing on the methodological tools provided by Eve Sedgwick's technique of reparative reading and Michel Foucault's ethics of care of the self to focus on the lived experience of LGBTQIA+ people. What emerges through the stories of LGBTQIA+ commitments to human rights and legal activism are not themes of naivety, compliance, or assimilation, as often charged, but ongoing efforts toward disruption, creativity, and hope.
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Michael, Bryane, and Abdelaziz Nouaydi. "When EU Law Meets Arabic Law: Assessment of Anti-Corruption Law in Morocco and Some Proposed Amendments." Arab Law Quarterly 23, no. 4 (2009): 353–88. http://dx.doi.org/10.1163/157302509x467362.
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AbstractThis article reviews the present state of the adoption of anti-corruption legal provisions usually adopted in EU (or candidate) countries in Morocco. Morocco lags behind many countries in its adoption of anti-corruption legislation, and the recently established Central Agency of the Prevention of Corruption is unlikely to succeed in speeding up the adoption of these measures. English language translations of a number of Moroccan anticorruption legal instruments are presented and amendments to these legal instruments are recommended (based on international best practice) in order to increase the likely effectiveness of Moroccan law enforcement institutions in fighting corruption.
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Junyu, Ma. "Notary According To Civil Law And Common Law That Related Strongly With International Civil Transactions." Jurnal Akta 7, no. 3 (September 8, 2020): 285. http://dx.doi.org/10.30659/akta.v7i3.11279.
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The world is increasingly without borders which has an impact on legal services such as the world of civilization, especially notary. However, in reality there are still many intersections of legal systems that are increasingly widespread in the notary world that are included in civil law, for example, the practice of international trade has made the boundaries between legal systems increasingly thin. Including differences in the use of legal systems such as Civil Law and Common Law in each country also affects the development and type of civil law system. For example, the bookkeeping and business taxation system will be built based on certain legal systems across jurisdictional boundaries including land lease agreements for industries with foreign investors.
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Chigara, Benedict Abrahamson. "The Administration of International Law in National Courts and the Legitimacy of International Law." International Criminal Law Review 17, no. 5 (October 15, 2017): 909–34. http://dx.doi.org/10.1163/15718123-01705004.
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Increasingly, national courts find themselves called upon to determine matters where un lex specialis; regional supranational law; customary international law and domestic law all appear relevant. Lower court judges may be challenged significantly because such matters often lie beyond their day-to-day practice of interpreting and applying national law to local legal issues. This article recommends that to ensure both justice and legitimacy of international law, national courts − especially lower courts, should a priori consider whether the matters before them would be best served by appointing an expert academician ‘friend of the court’ to illuminate the contested applicable international law.
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Prakasa, Satria Unggul Wicaksana. "ECOCIDE CRIMES & OMNIBUS LAW: REVIEW OF INTERNATIONAL LAW AND ITS IMPLICATIONS ON INDONESIA LAW." Jurnal Dinamika HAM (Journal of Human Rights) 12, no. 2 (January 29, 2021): 14. http://dx.doi.org/10.24123/jdh.v12i2.2898.
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Abstract: Omnibus Law which seeks to simplify 79 laws and 1288 articles. The Omnibus Law, a number of articles has the potential to remove the protection of rights, obsess over the human rights of citizens, particularly in relation to civil and political, economic, social and cultural rights, and with regard to law enforcement for environmental destroyers who are weak. The research used socio-legal research methods. The results of the study are the limitations in prosecuting perpetrators of ecoside crimes only in war crimes, making it difficult to hold responsibility for crimes committed, both against individuals and multinational/transnational corporations. Omnibus Law has enormous potential to perpetuate the practice of ecocide crime systematically both in the political, legal, and socio-economic, cultural aspects. Thus, there is no reason to strengthen that the Omnibus Law is in fact favoring environmental destruction, and perpetuating the practice of impunity for perpetrators of environmental damage crimes.
Keywords: Ecoside Crimes, Law Enforcement, Omnibus Law
Abstrak: RUU Omnibus Law Cipta Kerja yang berupaya menyederhanakan 79 UU dan 1.288 Pasal. RUU Omnibus Law Cipta Kerja, sejumlah pasal berpotensi menghapus perlindungan hak, merepsesi HAM warga negara, khususnya terkait dengan hak-hak sipil dan politik dan ekonomi, sosial dan budaya. Serta berkenaan dengan penegakkan hukum bagi perusak lingkungan yang lemah. Metode penelitian yang digunakan adalah menggunakan metode penelitian sosio-legal. Hasil penelitian adalah Keterbatasan dalam penuntutan pelaku kejahatan ekosida hanya pada kejahatan perang membuat sulitnya meminta pertanggungjawaban atas kejahatan yang dilakukan, baik terhadap individu maupun korporasi multinasional/transnasional. RUU Omnibus Law Cipta Kerja menjadi potensi yang sangat besar untuk melanggengkan praktik kejahatan ekosida yang secara sistematis baik dalam aspek politik hukum, maupun sosial ekonomi, kebudayaan. Sehingga, tidak ada alasan yang menguatkan bahwa RUU Omnibus Law Cipta Kerja ini justru memihak pada pengrusakan lingkungan, serta melanggengkan praktik impunitas bagi pelaku kejahatan kerusakan lingkungan.
Kata kunci: Kejahatan Ekosida, Penegakkan Hukum, RUU Omnibus Law
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Rachman, Ferry Eka. "The Protection of Foreigners in International Law." Journal La Sociale 2, no. 1 (January 14, 2021): 18–24. http://dx.doi.org/10.37899/journal-la-sociale.v2i1.264.
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This research aims to find out legal protection against foreigners and citizens who lives outside their nationality country. In discussing the issue of international legal protection against foreigners, a doctrinal approach and international court practice is used. From the opinion of international legal experts, it will be found legal principles and theories regarding the position of individuals as subjects of international law. The principles of citizenship are the main basis for the application of the principle of jurisdiction and country responsibility towards its citizens and foreigners.The results are, In principle, every country will be responsible for providing legal protection to every citizen of the country wherever he/she is and foreigners will receive legal protection, under certain limitations, both from the country where he/she is temporarily located and from the country of origin. Thus, a person's citizenship status is closely related to the protection of international law that will be given to him/her, against him/her, his/her property and family. The application of the principle of state responsibility against citizens abroad or foreigners is based more on the principle of state sovereignty. A sovereign state will apply its national laws to its citizens within its territorial boundaries. Apart from that what applies is legal provisions of other countries or provisions of international law.
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Carty, Anthony. "What Use Is Customary International Law?" Korean Journal of International and Comparative Law 9, no. 1 (May 28, 2021): 119–31. http://dx.doi.org/10.1163/22134484-12340149.
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Abstract Customary international law as a source of general law is given a primary place in Article 38 of the ICJ Statute. However, it is historically a concept created by legal doctrine. The very idea of custom supposes legal persons are natural persons living in a dynamic, evolving community. This was the assumption of the historical school of law in the 19th century when the concept of custom was developed. Now the dominant notion of legal personality is the State as an impersonal corporation and international legal theory (Brierly and D’Amato) can see well that the death of the historical school of law has to mean the death of the concept of custom. What should replace it? Two steps need to be taken in sequence. Firstly, following the Swedish realist philosopher Haegerstrom, we have to ascertain the precise constellations of the conflictual attitudes the populations of States have to the patterns of normativity which they project onto international society. Secondly, we should follow the virtue ethics jurisprudence of Paul Ricoeur and others, who develop a theory of critical legal doctrinal judgement, along the classical lines of Aristotle and Confucius, to challenge and sort out the prejudices of peoples into some reasonable shape, whereby these can be encouraged to understand and respect one another. Then one will not have to endure so many silly interpretations of international law such as the one declaring that there are only rocks in the South China Sea and not islands. Such interpretations have nothing to do with the supposedly ordinary legal language analysis of a convention and the State practice surrounding it. They have to do entirely with a continued lack of respect by Western jurists for non-Western societies and nations.
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Chasapis Tassinis, Orfeas. "Customary International Law: Interpretation from Beginning to End." European Journal of International Law 31, no. 1 (February 2020): 235–67. http://dx.doi.org/10.1093/ejil/chaa026.
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Abstract Does interpretation have a role to play with respect to customary international law? Common wisdom suggests that, because customary legal norms are unwritten, they need not be interpreted prior to their application. Instead, it is assumed that once one has identified such a norm, one also knows its content. This approach glosses over a series of critical questions: what interpretative choices are made when describing the practice leading to the formation of legal norm in a certain way as opposed to another? What choices are made when interpreting a given practice so as to infer norms of a general import? And what leeway is then left for interpreting norms already identified so as to clarify their meaning? Tackling these questions, this article argues that interpretation in fact can play a role at every stage in the life of custom. As such, interpretation calls us to rethink our operating assumptions about this fundamental source of international law by putting front and centre two neglected theoretical problems: custom’s inherent plasticity and the difficulty of clearly individuating its legal rules.
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Adinolfi, Giovanna. "Soft Law in International Investment Law and Arbitration." Italian Review of International and Comparative Law 1, no. 1 (October 15, 2021): 86–112. http://dx.doi.org/10.1163/27725650-01010005.
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Abstract In the more recent decades, international investment law (“iil”) and arbitration have been going through a process of recalibration prompted by both the intensification of cross-border capital flows and the States’ growing concerns over the potential restraints iil may impose upon the pursuit of public interests. The present contribution will pay attention to a specific feature that can be observed within these developments, i.e. the role played by soft law in investment arbitration and, more generally, under iil, also with a view to assessing the impact on the formation of binding international law of instruments formally devoid of normative force within the international legal order. After an introduction (Section 1), the contribution is articulated into four sections. Section 2 will first define the field of investigation. The case law of investment tribunals and the treaty practice under the more recent iia s will be then explored as to the reliance on soft law instruments for the purposes of settling procedural (Section 3) and substantive issues (Section 4). Some final remarks will close (Section 5).