Legal Community Research Articles

COMBATANT IMMUNITY AND THE RUSSIAN-UKRAINIAN WAR: REOPENING THE DEBATE ON A LONGSTANDING DOCTRINE

Background: Russia’s invasion of Ukraine has resulted in the largest conflict in Europe since the Second World War, with estimates suggesting that hundreds of thousands of Russian soldiers are implementing the will of the aggressor state. It has long been believed that combatants are immune from criminal prosecution for their actions during hostilities, including the killing of military personnel defending the victim state unless they violate the laws of war. However, this immunity has naturally generated criticism in the Ukrainian legal community. In this article, the authors analyse the critical arguments made by opponents of combatant immunity and seek to clarify the legal and ethical grounds of the controversial doctrine. Furthermore, the well-known debate on the significance of citizenship (nationality) for recognising combatant or prisoner of war status and the liability of defectors is revisited from a new perspective. Methods: The article is based on an analysis of IHL sources, commentaries, state practices, precedents and scientific views on combatant immunity. Additionally, the article examines the practices of law enforcement agencies in Ukraine and the perspectives of Ukrainian criminal law scholars. General scientific methods of cognition (induction, deduction, analysis, synthesis), as well as historical, empirical and systemic-structural methods, are used. The article is structured into three parts. The initial section provides a comprehensive overview of the status of a combatant and their associated privileges within the context of international humanitarian law (IHL), with a particular focus on the ongoing conflict between Russia and Ukraine. The second section delves into the debate surrounding Ukraine's obligation to respect the immunity of the combatant of the aggressor state and offers the authors' conclusions on this matter. The third section addresses the liability of defectors, focusing on the implications of citizenship (nationality) for combatants and prisoners of war (POW). Results and conclusions: Several Ukrainian scholars have expressed their unreserved disagreement with Ukraine's application of the doctrine of combatant immunity to Russian soldiers. In the absence of a direct reference to this exceptional privilege in international treaties to which Ukraine is a party and in light of the a priori unlawfulness of aggression, the critical arguments are not without merit. Nevertheless, we conclude that respect for the immunity of a combatant representing the aggressor state is part of Ukraine's international obligations and has a certain justification. Concurrently, the article acknowledges that the legal and ethical grounds for this are not entirely clear. The question of whether defectors should be recognised as combatants and/or prisoners of war is similarly unclear. Nevertheless, we are convinced that regardless of the answer to this question, the criminal prosecution of defectors for high treason cannot be considered a violation of the immunity of a combatant.

Striking the balance: anti-money laundering goals and legal privilege in Australia

ABSTRACT Criminals engage legal professionals for their skills and services to facilitate laundering of proceeds from crime. Despite this risk, Australia remains one of the few countries globally that is non-compliant with international anti-money laundering (‘AML’) standards set by the Financial Action Task Force (‘FATF’) which urge States to impose preventative measures on legal professionals to provide intelligence to assist law enforcement in detecting financial crime. Representatives of the legal community have vehemently opposed regulating legal professionals under Australia’s AML laws since the inception of Australia’s formal AML framework, fearing that it would cause irreconcilable tension with lawyers’ ethical duties to uphold legal professional privilege (‘LPP’). Although Australia is among the last countries to impose AML duties on legal professionals, its lawmakers can benefit from examining best practices in comparable, globally compliant jurisdictions. Through consideration of the regulatory frameworks in the United Kingdom and New Zealand, this article derives practical insights and offers actionable recommendations for Australian lawmakers and international stakeholders on how to preserve LPP to the greatest extent possible while advancing AML goals. While LPP is not a barrier to AML regulation, it is an important consideration for lawmakers.

Amphibolism of Legal Discourse, or the Art of Word Mastery in Professional Legal Activity

Introduction: the paper discusses the problems and prospects of the study of legal discourse in procedural law. On the one hand, the lack of unity and unambiguity in the definition of legal discourse makes it possible to characterize the situation as amphibolic. On the other hand, there is an awareness that everything new is just well-forgotten old. The development of the problem of language and law began as early as ancient Greek philosophers and lawyers of Ancient Rome, who for the first time drew attention to the fact that the words of the law were not identical with its “power and authority” (vin ac potestatem). Therefore, it would be at least doubtful to talk about the relevance of the problem from a position of novelty today. The art of using the word in professional activity has always been of concern to the legal community. Therefore, the paper attempts to show continuity in the study of the issue and the possibility of enriching developments in this direction, taking into account modern achievements. In this regard, the purpose of the study is to generalize the positions available in various branches of knowledge regarding what is included in the content of legal discourse, as well as to identify the functions and properties of this multidimensional concept. Methods: in the course of the research, the dialectical and general scientific methods of cognition were used – observation, description, and theoretical understanding of the material, systematic interpretation. Among the specific scientific methods of studying the subject of scientific research were the formal legal and generalization methods. Results: it is advisable to abandon the complication of the definition of legal discourse by eliminating the accumulation of various components in its content, devoid of practical content. “Do not multiply entities unnecessarily” – this is how Occam’s principle sounds. The definition of legal discourse through words in law most clearly and fully characterizes the essence of this phenomenon. Conclusions: legal discourse is the art of using the word in the professional activity of a lawyer, human common sense.

FORMATION OF AN INCLUSIVE SOCIETY IN UZBEKISTAN: THE IMPORTANCE OF SOCIO-POLITICAL PROCESSES IN ENSURING THE INCLUSION OF PERSONS WITH DISABILITIES

This article explores the formation of an inclusive society in Uzbekistan, focusing on the socio-political processes that ensure the inclusion of persons with disabilities. It highlights the importance of legal frameworks, awareness-raising initiatives, employment opportunities, community engagement, and mechanisms for monitoring and evaluation. The article argues that a comprehensive approach is essential for promoting the rights of persons with disabilities and creating a more equitable society.

Termination of Prosecution Based on Restorative Justice in Indonesia it is Associated with the Renewal Criminal Law

Criminal acts arise from various aspects of human activity, including the political, social and economic spheres. The success of law enforcement is traditionally measured by the ability to bring criminals to justice and impose appropriate penalties. However, in certain minor cases, such as theft, embezzlement, and fraud with minimal losses, the public questions the need for prosecution, as they believe that prosecution does not match the seriousness of the offense. The purpose of this study is to analyze the implications and effectiveness of prosecution discontinuation based on restorative justice in the Indonesian legal framework. Using a qualitative research approach, this study examines the regulatory structure and practical application of restorative justice in Indonesia. Data was collected through document analysis and interviews with legal practitioners to explore alignment of regulations with legal principles and community expectations. The research findings show that, although restorative justice offers a viable avenue to achieve peace between offenders and victims, its implementation in Indonesia is still limited, as it is not yet embedded in the broader criminal law system. Currently, peace agreements between the parties are only considered as a mitigating factor in the sentencing process. This research suggests that stronger legal legitimacy for restorative justice, such as the inclusion of restorative justice into the Draft Criminal Procedure Code is essential to adapt to the evolving legal culture and public expectations. The implications of this research highlight the need for comprehensive criminal law reform to ensure justice that aligns with societal values and contemporary legal standards.

Civil Law in the Context of Inheritance: Drafting a Validand Functioning Will

This research aims to explore the aspects of civil law related to inheritance with a focus on the preparation of legal and functional wills in Indonesia. Wills are important documents in estate planning that can reduce potential disputes between heirs. However, public understanding of the importance of wills and the legal provisions that govern them is still low. Through a normative juridical approach, this study collects data from literature studies, analysis of laws and regulations, case studies, and interviews with legal practitioners and the public. The results of the study show that the involvement of notaries in the preparation of wills is very important to ensure the validity of documents and prevent disputes. Although there are various educational programs regarding wills, their effectiveness still needs to be improved. The recommendations resulting from this study include the need for increased cooperation between legal practitioners, educational institutions, and community organizations in educating the public on the importance of heritage planning. Thus, it is hoped that public awareness of the preparation of wills will increase, so that the practice of inheritance planning in Indonesia can be more effective and in accordance with the applicable legal provisions.

Case Analysis of Women Experienced Abuse: with Special Reference to Beneficiaries of Parihar, Bangalore

Abstract Case Analysis in this article presents a consolidated analysis of five case studies of women who have experienced abuse, exploring the varying types of abuse, challenges faced, and systemic responses. The cases have been chosen from the individuals i.e women who especially approach the institution “Parihar” Bangalore seeking help or emotional support. span different cultural and socioeconomic contexts, highlighting the pervasive nature of abuse across the globe. Through detailed comparison, the article examines the role of economic dependency, legal protections, and social stigma in perpetuating abuse, as well as the importance of community and psychological support in recovery. The analysis underscores the need for stronger legal frameworks, community education, and economic empowerment to help women break free from abusive environments. “Parihar” is a charitable institution registered under the Karnataka Societies Registration act 1960, exempted under 80(G) of Income Tax Act. It is an initiative of Bengaluru City Police, and is managed by a dedicated, committed and successful team of professional counsellors, and police staff with vast experience in counselling and social work. Parihar undertakes charitable, philanthropic and socio–economic programs for the welfare of Women, Children and Family as a whole. Parihar’s implementation structure consists of mainly four important people, its Ex-officio President being the Commissioner of Police, Bengaluru City, Vice President and Nodal officer, is the Jt. Commissioner of Police (Crime) & Secretary is the Deputy Commissioner of Police(Admin) and Treasurer is the Deputy Commissioner of Police (Crime) “Parihar” stands out for its ‘vision’ and ‘mission’ to work for the upliftment of women and children in today’s society with various challenges and positive attitude to redress the issues in a holistic manner.

O herói improvável e o elixir das concórdias

The reproduction of pleasant myths, the fabrication of heroic predecessors for present political movements and the upkeep of useful lies for the defence of noble causes should not constitute the aim of legal historians. On the contrary, it is their scientific duty to point out the inappropriateness of such conducts and the lack of plausibility of narratives produced this way. Showing how the legal community of São Paulo has reconstructed its memory, the article offers a new interpretation about the path of Goffredo Telles Junior as a political militant and State theorist. Re-examining forgotten remains of such path and reinterpreting the already known sources, we aim at demonstrating that his adhesion to Integralismo, far from having been an insignificant and episodical juvenile whim, was a decisive moment which affected his ideological views along four decades. From the thirties to the hardest times of the Military Dictatorship, his texts abounded with typical elements of the far-right antidemocratic thought: the obsession with corporatism as a supposed antidote against class struggle, the repugnance for liberal democracy, the disdain for the opinions of the average citizen, the strong attachment to hierarchy and to the “Principle of Authority”, the rejection of individualism and the belief that small élites, superior to the “mass”, should show the Nation its way. Obvious as well in the first integralist party as in its postwar successor, Goffredo’s longstanding loyalty to that far-right movement tends to be disregarded by his admirers, thus wiping out decades of the jurist’s political activity.

Ireland's abstract review and the Judicial Appointments Commission Bill case

The Irish Constitution contains a pre-enactment abstract review procedure under Article 26 whereby, before signing a Bill into law, the President can refer the Bill to the Supreme Court for a decision on its constitutionality. However, only 16 such references have ever been made. The reason Irish Presidents have been cautious about sending Bills to the Supreme Court for abstract review relates to the fact that if a Bill survives the Article 26 review process, it then acquires an immunity from further challenge under Article 34.3.3. This has sometimes been referred to as a ‘seal of constitutionality’ and the absolute nature of this blanket immunity has been criticised because it means that, in practice, the review process is rarely used. By its very nature, abstract review suffers from the defect that the provisions are being looked at in a vacuum, without the benefit of a concrete factual scenario and it may be that circumstances later arise which could result in an unconstitutionality that was not apparent when the Bill was initially examined. For this reason, Presidents will sometimes decide not to refer a Bill, even one which is considered controversial, for fear of closing off the Bill to potential future challenges; they may feel it is better for challenges to occur organically as situations arise rather than to prevent a situation where a future challenge is blocked by the immunity following the review process. As Hogan has put it, ‘[w]ithout a plaintiff, a court may fail to anticipate side-effects or unintended consequences of the law’. The paucity of occurrences means that when the procedure is invoked, there is a great interest (amongst members of the legal and academic communities at least) in the process and outcome.

Maritime dispute resolution: understanding adequacy of UNCLOS: a systematic review

ABSTRACT The United Nations Convention on the Law of the Sea (UNCLOS) plays a pivotal role in international maritime law, providing a comprehensive framework for the settlement of disputes related to sea and ocean spaces. This systematic review explores Part XV of UNCLOS, dedicated to the ‘Settlement of Disputes,' and delves into the mechanisms outlined in Articles 279 to 299 for resolving maritime conflicts. The study relies on a thorough review of published materials from 1994 to 2023, encompassing monographs, reviews, research papers, case studies, and conference papers available in the Scopus database. The review scrutinises the dispute resolution mechanisms available in UNCLOS. It explores the perspectives of the international legal community, especially in the Indo-Pacific region, highlighting how major powers leverage UNCLOS to critique maritime claims. Practical challenges faced by states litigating against major powers and the need for cautious interpretation are discussed. The study underscores the ongoing discourse about UNCLOS’ role in navigating ocean governance complexities and highlights the importance of continuous exploration and refinement of dispute resolution mechanisms, call for supplementary legal mechanisms, particularly the role of Global Power countries and regional context of maritime regions pose demand for further initiatives for achieving sustainable ocean governance.

Criminal liability for the destruction or damage of flora

The article analyses the issues of criminal liability in Ukraine for destruction or damage to flora. According to the current Criminal Code of Ukraine, liability for this criminal offence is established by Article 245 of the Criminal Code of Ukraine. The article emphasises that Russia’s full­scale invasion of Ukraine has led to massive and systematic destruction of, and damage to, flora and fauna, and has become a serious problem that has caused and continues to cause significant environmental damage. The environmental damage caused during armed conflicts will continue to affect the state of ecosystems and natural resources long after they end. The author notes that no country in the world has ever investigated war crimes against the environment on the scale of our state. Based on the results of the analysis, the author of the article concludes that legislative and law enforcement shortcomings pose the risk of significant deterioration of the environment both in the territory controlled by Ukraine and in the uncontrolled territories. At the same time, the draft Criminal Code in its current version does not in any way address the problem of the lack of differentiation of liability for intentional and negligent destruction of flora, which indicates an urgent need to improve the relevant draft provisions of the new Criminal Code of Ukraine.In addition, the interaction of state authorities with environmental and human rights organisations in assessing environmental damage, monitoring the state of the environment, etc. is still unsatisfactory. Civil society, citizens, and the legal community do not yet pay due attention to environmental criminal offences, mostly perceiving them as secondary. At the same time, we believe that timely and correct consideration by the courts of criminal offences under Article 245 of the Criminal Code of Ukraine is an important means of protecting the right of citizens to a safe environment guaranteed by the Constitution.

LA INCONCEBIBILIDAD DE LA POBREZA EN LA SOCIEDAD LIBRE. EL ARGUMENTO JURÍDICO.

Poverty, an open wound on humanity, is also a pending issue for libertarian political theory, the current of thought that advocates minimization of coercion, and thereby maximization of freedom, as an ideal of social organization. While libertarians have prolifically argued that a free society would be much more prosperous in all its strata, they have never sought to demonstrate so ambitious a proposition that such a society would become incompatible with the very phenomenon of poverty. This essay provides demonstration thereof by means of a legal-philosophical argument built upon the legal treatment that so-called famine theft would presumably receive in the non-statist legal community. Based on the primacy of human life and dignity over any other legal value, famine theft would constitute an exception to the inviolability of private property. Echoing the historical development of maintenance obligations arising from a family relationship, the evolutionary nature of decentralized law would gradually widen the range of material needs suitable to qualify as determinants of poverty, the presence of which would legitimize the resort to this exception. Likewise, it would spontaneously result in the voluntary articulation of social assistance networks, the contribution to which would be judicially recognized as a counter-exception to the admissibility of famine theft and similar behaviors—thus affording full legal protection of property.

Legal evaluation of the deportation of Azerbaijanis from the Armenian SSR in 1988-1991 from the perspective of the Declaration on Independence of Armenia and the constitution of Armenia: interpretation of the constitutional acts of the Republic of Armenia

The subject of the article is the return of Azerbaijanis to their native territories, a topic that has gained enough attention recently in the legal community and in both Azerbaijani and Armenian society, particularly after the 2020 clashes between the two states. The article's study direction, in contrast to many other scientific and journalistic works already in existence, addresses this return to the national level rather than the international ground. As a result, the constitutional acts of the Armenian Soviet Socialist Republic and the Republic of Armenia are interpreted. To support this interpretation, the relevant legislation from the USSR at that time, as well as the Azerbaijan SSR's analogical citizenship acts are also evaluated. The article's goal is to assess the 1988–1991 deportation from the perspective of Armenian legislation. It was determined that the 1988–1991 deportation described in the article violated Armenia's constitutional acts in addition to other theoretical aspects and public legal relations. Keywords: citizenship, deportation, constitutional law, declaration of state independence, fall of the USSR, Azerbaijan-Armenia relations, Karabakh conflict.

К вопросу об определении места градостроительного права в системе права России

A relevant and controversial aspect in the modern theory of law in the development of the modern doctrine of the legal system is the question of the intersectoral division of the Russian legal system, the criteria for its construction, as well as the isolation and systematization of legal norms that are complex in nature. The purpose of the article is to establish intersectoral connections, criteria for systematization and the place in the system of Russian law of urban planning norms as a legal community that combines elements of private law and public law influence in the mechanism of legal regulation. A systematic approach and such logical research methods as analysis and synthesis made it possible to determine the place of urban planning norms in the system of Russian law as an independent branch of law with a special mixed type of legal regulation. Scope of application of the results: the main results and conclusions of the study can be used as the basis for the formation of new approaches to building a legal system and criteria for differentiating legal norms. In addition, the recognition of urban planning law as an independent branch of law will significantly facilitate the processes of law enforcement and law-making activities in the urban planning industry. Conclusions: the totality of the subject, method, principles, goals and functions of urban planning norms, forming a special mechanism of legal regulation, indicates the qualitative originality of the regulated sphere of social relations and the isolation of urban planning law as part of the Russian legal system as a branch of law. At the same time, the complex nature of urban planning law by type of legal regulation is due to the interpenetration of private law and public law interests.

The Influence of “Body Language” on the Assessment of Witness Credibility in Australian Written Court Judgments

ABSTRACT This article examines how “body language” has been used in Australian court judgments when assessing witness credibility, and how it can influence legal proceedings. We first address the use (and misuse) of nonverbal communication. Then, we address the guidelines of the High Court of Australia regarding nonverbal behavior, also known as demeanor within the legal community. The methodology of the doctrinal analysis we conducted and the results are presented. Their implications considering research on nonverbal communication are discussed, and we conclude with a call for legal scholars and practitioners to further address the influence of “body language” in legal proceedings.

The Effectiveness of Recognizing the Existence of Traditional Institutions in Indonesia Based on The Constitution

Plurality is a social fact that cannot be avoided in Indonesia. The diversity of Indonesian people's tribes, religions, races, languages ??and religions shows their diversity. The founders of the Republic of Indonesia used the basic philosophy of "unity in diversity" to show the diverse social reality of the Indonesian nation, and the basic philosophy of "tunggal ika" to show the desire to unite the entire Indonesian nation into one. With the combination of the two, the philosophical motto of the Indonesian nation is "Unity in Diversity", which means unity in diversity. Apart from various different societal systems and structures, this community has unique norms that are considered customs and are adhered to by its community members. Customary law communities are genealogical or territorial communities that are prosperous and have citizens who are different from members of other legal communities and can act as independent and independent legal subjects. One of the problems in administering customary law communities is the existence of customary institutions. The problem currently occurring is that there is no clear and integrated mechanism for recognition and protection procedures. Regulations regarding procedural mechanisms for recognizing the rights of customary law communities through sectoral legislation are often not adhered to by various parties, in fact the nature of the regulations which do not focus on specifically regulating customary law community institutions has an impact on ineffective implementation even though customary institutions have relevance to the Indonesian constitution. The existing mechanism only concerns the process of identification, verification and determining its existence, which makes it increasingly pressured by development activities that do not pay attention to traditional rights and threaten local wisdom.

Морально-етичні норми в юриспруденції

It was found that the moral and ethical norms in jurisprudence were reflected in the relevant Codes, Instructions, Rules of Conduct, etc., which are aimed at ensuring the principle of peoplecenteredness and contribute to the formation and development of a morally mature specialist with high value orientations in the field of professional duties and interpersonal communication Compliance with moral and ethical standards in jurisprudence is a guarantee of maintaining stable professional relationships in the legal team and contributes to maintaining a positive image of the legal profession. It was emphasized that professional activity implemented in the “person-to-person” format requires not only proper expertise, but also perfect standards of moral and ethical interaction to prevent violation of human rights and freedoms and personal values. Jurisprudence is one of the areas where the official-business interaction between representatives of this profession and citizens is tangential to a person’s private life and personal boundaries. That is why it is important to regulate the ethical aspect of such interaction for full cooperation and the most positive resolution of problematic issues. It is noted that ethical codes define a system of value orientations of representatives of a certain professional direction, in particular, persons who perform specific job duties and are empowered to cooperate with their colleagues or subordinates, as well as all physical and legal entities with whom they cooperate. Attention is focused on the fact that the proper level of moral and ethical culture of a lawyer contributes to the prevention and avoidance of his professional deformation, because a high level of professionalism, unfortunately, is not an obstacle to the development of professional deformation. A developed moral and ethical culture and the desire for personal development do not allow signs of antivalue behavior of a person to manifest. When forming and implementing moral and ethical norms in Ukrainian jurisprudence, the experience and practice of the world legal community is taken into account. Recognition and observance of international standards enables the active cooperation of relevant competent authorities with international organizations to ensure law and order and prevent violations of human rights.

Legal frameworks for sustainable tourism: balancing environmental conservation and economic development

ABSTRACT Tourism is a vital part of the global economy but often imposes significant environmental pressure, necessitating robust legal frameworks for sustainability. This study explores the role of environmental law in promoting sustainable tourism, motivated by the need to assess the effectiveness of existing regulations. It hypothesises that while numerous international and national laws exist to mitigate tourism's environmental impacts, their effectiveness is often hindered by enforcement challenges and socio-economic factors. Using a mixed-methods approach, including a literature review and case studies, the research highlights the dual nature of tourism’s impact, showing economic benefits alongside environmental costs. Case studies from Egypt, UAE, and KSA illustrate successful sustainable practices when strong legal frameworks and community involvement are present. The study concludes that a combination of regulatory measures, economic incentives, and public-private partnerships is crucial for sustainable tourism, recommending enhanced enforcement and global cooperation.

Brain Death Between Jurisprudence and Medical Innovation

This study aims to explore the multiple concepts of brain death through jurisprudence and medical innovation. The study focuses on understanding the interaction between these concepts and analyzing the challenges and problems they face. To analyze the multiple concepts of brain death and provide a comprehensive and balanced understanding of this issue from different perspectives. And also to know the ethical and legal challenges associated with determining brain death. The study included the jurisprudential, medical, ethical and legal community interested in the topic of brain death. The study followed a multidimensional approach and is guided by the methodology of literature review, comparative analysis, and applied analysis of medical trials. Previous studies and research were reviewed, including jurisprudential, medical, ethical and legal studies. The results showed a significant discrepancy in understanding and application between the jurisprudential concept of death and recent medical developments to address the ethical and legal challenges associated with determining brain death. The recommendations and directions for health and legal policies were to achieve harmony between the jurisprudential, medical and ethical dimensions of the issue of brain death. The research indicates the need for further research and analysis to better understand the interaction between the multiple concepts of brain death and to apply comprehensive and balanced solutions.

Diskursus Regulasi dan Kebijakan Pendidikan Islam di Indonesia

An Islamic educational institution is a place where education within the scope of Islam carries out its duties in order to achieve the ideals of Muslims. Family, mosque, majelis taklim, diniyah, madrasa, and Islamic boarding schools are Islamic educational institutions that are absolutely necessary in Indonesia in general or in a city and village area in particular. Comprehensive religious education is needed to instill appropriate moral values for the legal community in order to understand the implementation of religious rules correctly and precisely. The method used is descriptive qualitative through literature review. The results of the study show that; 1. There is a clear history and red thread of regulation regarding Islamic education in Indonesia, the development of Islamic education, and the implications of Islamic education policy for the existence of Islamic boarding schools and religious education in Indonesia. 2. Islamic education policy in Indonesia has undergone changes since the Old Order to the New Order, with an increase in the status of religious education in public schools and universities. 3. Islamic education in Indonesia has experienced significant changes and developments since the 2000s. Islamic boarding schools have adopted the formal education system, and some boarding schools have opened universities. However, the increase in the number of Islamic boarding schools has not been accompanied by an increase in quality. Law No. 18/2019 on Pesantren is expected to recognize and facilitate the development of pesantren and religious education.