Domestic Legal Order Research Articles

The ICRC's interpretive guidance on the notion of direct participation in hostilities: sociological and democratic legitimacy in domestic legal orders

ABSTRACTThe Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law issued by the International Committee of the Red Cross (ICRC) in 2008 recommended two interpretive standards for the use of force against individuals in armed conflicts. While one standard defines ‘direct participation in hostilities’ by reference to ‘functional membership’ such that anyone with a continuous combat function in an organised armed group will lose her/his civilian immunity and be subject to attack on a continuous basis, the other standard requires that the kind and degree of force used in the attack be graduated according to military necessity. This paper surveys the levels of adoption of these standards in selected domestic jurisdictions, identifies the possible legitimating factors that gave these standards the capacity to induce their adoption by domestic actors and examines whether and how governance by these transnational standards may be justified by their democratic legitimacy.

The foundations of international human rights law: A sociological inquiry

This article is intended to provide a foundation for broader sociological analysis of the rise of international human rights law. It uses a historical-sociological approach to argue that the increasing importance of international human rights norms is not, as usually claimed, the result of normative agreements between actors and organizations located outside national societies, placing checks on the power of existing sovereign states. On the contrary, the emergence of international human rights regimes can be linked to formative processes embedded in national societies, and it reveals deep continuities with inner-societal patterns of institution building and state construction. Most notably, international human rights law, especially where it penetrates into domestic legal orders, helps to elevate the robustness and the autonomy of domestic political institutions, and it contributes in important ways to the stabilization of national states, within their own societies, as distinctively sovereign organizations.

Constitutional Law Foundations of Governing and Law Enforcement Activities: Problems of Functioning and the Ways to Resolve Them

The paper deals with the problems of reforming administration and law enforcement systems in modern Russia. So far, the Russian Westernization project, which has been the object of great hope in previous decades, has not justified itself. At the same time, during this period, the Russian law-maker has been performing a large-scale reception of foreign public law rules into the domestic legal order. An introduction of numerous constitutional law principles that characterize the Western countries has often been carried out mechanically with no regard for both the peculiarities of the countries where they had been formed and the real possibility of integrating these novels into the domestic legal environment. This process has led to a number of negative results. In many respects, an administrative reform failure, slips in the implementation of the principles that form the basis for law enforcement activities, fundamental discrepancies between the theory of local self-government and the practice of its implementation prove the need for reviewing ineffective normative regulations and seeking new approaches to solving existing problems. The study in question attempts to assess the above mentioned process systematically, to acknowledge the errors made and to identify the ways to find appropriate alternatives.

Krivičnoprocesna regulacija posebnih dokaznih radnji u Republici Srbiji i njihova primena u savremenoj praksi

In the last several decades, the world has experienced an escalation of organized crime, such as firearms and drug trafficking. Terrorism and migrant trafficking in particular have reached alarming levels in recent years. United Nations Convention against Transnational Organized Crime (Palermo, 2000) is a main international instrument in the fight against transnational organized crime. By ratifying the Convention, States parties have a legal basis to adopt a series of crime-control measures and implement special investigation procedures in their domestic legal order, in order to successfully combat organized crime. While fighting the ever more complex forms of organized crime, the international community and individual countries find that the implementation of special investigation techniques (or special evidence-gathering procedures, as they are called in Serbia) is often the only effective solution. This paper will discuss the most important aspects of their implementation in the fight against organized crime.

Idea odpowiedzialności dzielonej za zapewnianie zgodności krajowego porządku prawnego z EKPC w orzekaniu sądowym

Idea odpowiedzialności dzielonej za zapewnianie zgodności krajowego porządku prawnego z EKPC w orzekaniu sądowym

The Puzzle of Collective Self-defence: Dangerous Fragmentation or a Window of Opportunity? An Analysis with Finland and the Åland Islands as a Case Study

The present article moves across international, European Union (EU) and domestic law while examining the legal puzzle of collective security. The right to collective exercise of self-defence remains one of the tools in the global system of collective security, as guided by the United Nations Charter. States have different possibilities when exercising their inherent right to self-defence, and relevant decisions are made at the national, European as well as at international level. The recent expansion of the interpretations of the right to self-defence poses new problems for small states often ‘squeezed’ between superpowers and alliances of all sorts. The reinterpretation of the collective security system also affects old-standing legal regimes such as the one pertaining to the Åland Islands. The international legal rules on the demilitarisation and neutralisation of the islands, with their origins in the outcomes of the 19th-century Crimean War, form a small part of the global collective security system, which aims at limiting the use of armed force in inter-state relations. The EU Common Security and Defence Policy as well as North Atlantic Treaty Organisation undertakings are interpreted and implemented in the domestic legal orders of their respective Member States. The diverging interpretations of the core concepts involved create ambiguities that are also visible in current domestic legal and political debates.

A critique of Kenya's human rights framework that protects children living with HIV's right to access 'comprehensive treatment'

The course of HIV and AIDS is particularly aggressive in children. All children have the right to enjoy the highest attainable standard of mental and physical health as enshrined in various international human rights instruments. All these treaties have been ratified by Kenya and form part of the domestic legal order as the state is monist. This study explores the concept of access to ‘comprehensive treatment’ for Children Living with HIV (CLHIV) in Kenya. The study specifically seeks to analyse Kenya’s international human rights obligations in ensuring that CLHIV access ‘comprehensive treatment.’ It is argued that the implementation of these protections remains problematic. This study demonstrates that the Kenyan government’s HIV policies, institutions and legal framework manifest gaps and hurdles that hinder access to ‘comprehensive treatment.’

A critique of Kenya's human rights framework that protects children living with HIV's right to access 'comprehensive treatment'

The course of HIV and AIDS is particularly aggressive in children. All children have the right to enjoy the highest attainable standard of mental and physical health as enshrined in various international human rights instruments. All these treaties have been ratified by Kenya and form part of the domestic legal order as the state is monist. This study explores the concept of access to 'comprehensive treatment' for Children Living with HIV (CLHIV) in Kenya. The study specifically seeks to analyse Kenya's international human rights obligations in ensuring that CLHIV access 'comprehensive treatment'. It is argued that the implementation of these protections remains problematic. This study demonstrates that the Kenyan government's HIV policies, institutions and legal framework manifest gaps and hurdles that hinder access to 'comprehensive treatment'.

EU Law as an Agent of National Constitutional Change: Miller v Secretary of State for Exiting the European Union

This article analyses the recent decision of the UK Supreme Court determining the UK’s ‘constitutional requirements’ for triggering Article 50 TEU. It demonstrates that the underlying disagreement in the case concerned the proper conceptualisation of EU law as it operates in the UK legal order. The Government and its academic supporters denied that EU law rights could be equated to domestic law rights; this allowed them to argue that their loss through withdrawal from the EU would not breach the long-standing prohibition on Executive prerogative action removing domestic law rights or altering domestic law. The article argues that the Supreme Court was right to reject this argument. In doing so, the Court emphasised that EU law had not only deeply infused the domestic legal order but had significantly changed it. Hence use of Executive powers to withdraw from the EU would amount to the Executive changing the constitution. The article considers how this ‘constitutional change’ argument – already strongly criticised – should be understood, and seeks to shed light on it via the notion that constitutional amendment is usually recognised as an exercise of especial normative significance. While acknowledging that the UK’s constitution lacks the formal process for such change required by other European states, it argues that the invocation of this principle in Miller may be related to recent developments in constitutional doctrine recognising the special status of fundamental constitutional rights and principles. In doing so, it argues for a significant change to our understanding of ‘constitutional statutes’.

Fragments of fragments. The domain name system regulation: global law or informalization of the international legal order?

The paper studies some international law aspects underpinning the project of the new Domain Name System (DNS) governance, in order to try and bridge the worlds of IT law and international law. It also deals with the issue of the fragmentation of both international and domestic legal orders with an international lawyer's perspective, and faces the approach adopted on the same issue by the global/transnational law doctrine. It uses the DNS governance in the perspective of the international legal order as a case study, framing it in the context of various informal cross-border cooperation between public authorities. It also examines the ICANN, trying to understand if it could be read as an international organization, and the gradual overcoming of the ‘political question doctrine’ in the US.

Recognition of a Trust as a Specific Problem in Private International Law

Recognition of a trust as a legal institution established under foreign legal order is quite remarkable per se because the objective law governs the recognition with exception of the application of the law governing the personal issues. The recognition of a legal institution is a reaction to the ancient theory under which a legal institution may have foreseen legal consequences only in the territory of a country under who’s law it was established. The aim of the recognition of a trust is to allow it to develop its functions under its governing law in the legal context of a country of recognition. This requires to recognize it in terms of transposition of all possible effects enumerated for instance in Article 11 (2) and 3 of The Hague Convention on the law applicable to trusts and on their recognition into the other legal system. This aim should be achieved by transformation into similar legal institution of the country of recognition. The process of recognition faces with two major problems: Depeçage and conflict with the mandatory laws including the legal rule of so called ordre public of the country of recognition. These problems have to be overcome by mainly two instruments, namely qualification (classification) and adaptation which often go hand in hand and are understood and applied in substantive legal sense. The results based on comparative analysis focused on one international treaty and five national laws lead to optimistic results. There is an evident trend towards an amicable understanding of trust the prevalent consensus on the possibility to have a trust governed by foreign law even in the complete absence of the trust regulations in the domestic legal order is of a great relevance. A connection to a trust governed by the foreign law should be single. A single law applicable to the trust should notably govern the trustees’ duties, rights of beneficiaries, trustees’ liability and legal relationships between the trustee and trust creditors. The content and objective as well as the nature of the respective trust shall be undoubtedly decisive. The issues of capacity and of the form of the trust are to be connected differently.

The Establishment of Metropolitan Cities in Italy: An Advance or a Setback for Italian Regionalism?

Abstract This paper aims to provide a brief assessment of the legal framework of the newly established metropolitan cities in the Italian domestic legal order. After an historical overview of previous attempts to set up metropolitan cities in Italy (1), it summarizes the main statutory provisions of the Delrio Law (No. 56/2014) through which metropolitan cities finally came into operation (2) and it provides an analysis of its implementation, thereby attempting to make clear whether increased institutional pluralism and differentiation in the local government system will strengthen or weaken Italian regionalism (3). The conclusion will argue that, while the enactment of local government reforms combined with the entering into force of a significant constitutional amendment will increasingly diminish the role of the Regions, metropolitan cities, due to their ambivalent nature, still lack any propulsive thrust and face the risk of being marginalized until a consistent legal framework for their proper funding is laid down (4).

Recognizing Ancillary Harm at Sentencing: A Proportionate and Balanced Response

Victim participation in sentencing has become an important theme in the victims’ rights literature and continues to be the subject of much debate among academics, practitioners, courts, and the wider public. The debate about the role and effects of victim impact statements (VIS) and family impact statements continues in most common law jurisdictions. The responses to our initial article in this journal illustrate the importance and diversity of this debate across the world, within domestic and international legal orders. This article responds to the commentaries upon our original article. We continue to argue that the primary aim of ancillary harm should be to inform the courts on the seriousness of the crime in order to facilitate the determination of a more proportionate sentence. We do not support a victim-centred approach where sentencing decisions rest on victims’ suggestions and opinions. Further, we do not claim that compensation and therapy for victims should be the primary role of sentencing. Instead, our position rests on retributive grounds and proposes a balanced approach to sentencing where all relevant factors are considered, including ancillary harm as an aggravating factor. We acknowledge the importance of limits, namely on the content of VIS, the effect of ancillary harm, and the importance of its reasonable foreseeability as a criteria for considering the aggravating effect of ancillary harm.

Human Rights Reform and the Uk's International Human Rights Obligations

Human rights reform in the UK cannot be seen in isolation from its international legal context. Should reform efforts result in a substantive reduction of human rights protection within the UK’s domestic legal order, which falls short of the many international obligations undertaken by the UK, this would place the UK in breach of international law.This paper provides an overview of the UK's international human rights obligations and how they are reflected in domestic law. This in turn informs the discussion first on how these obligations might be affected by future domestic reform efforts; and second on how domestic human rights reform might affect the international system for human rights protection.

The dual vulnerability of transnational, science-based standards in the national legal order

ABSTRACTThis paper highlights the scientific and political vulnerability of transnational science-based standards. This paper focuses on radiation standards formulated by the decentralised web of expert committees and inter-governmental forums. Transnational science-based standards are beset with scientific fragility, precisely because they provide certain regulatory stability in the scientifically uncertain areas. This scientific fragility is accompanied by political vulnerability. Transnational science-based standards are often formulated without the involvement of those private entities and individuals on whom the standards have visible consequences. This paper exposes the domestic neglect of dual vulnerability by analysing the Japanese stories after Hiroshima–Nagasaki (1945) and Fukushima (2011). While this paper discusses a specific scenario, the issue of dual vulnerability would likely arise in many other science-based standards which are formulated transnationally and absorbed into the domestic legal order on the basis that they are scientifically authoritative with little need for political input.

The Authority of Investment Treaty Tribunals to Issue Orders Restraining Domestic Court Proceedings

This article considers the authority of investment treaty tribunals to issue provisional measures affecting domestic courts or, as they are more commonly known, ‘anti-suit injunctions’. In particular, the article examines provisional measures of the kind ordered in the Chevron v Ecuador dispute, essentially to prevent the aggravation of an alleged denial of justice. It is contended that there is something distinctive about injunctive relief restraining another court or tribunal which is not necessarily captured by applying the standard provisional measures formula. It is further contended that measures restraining the continuation or enforcement of domestic court proceedings on the basis of the non-aggravation principle raise special considerations of comity and a concomitant need for care. The same considerations do not arise, at least not to the same degree, with respect to measures which seek to restrain domestic court proceedings in order to preserve the exclusivity or procedural integrity of investment treaty arbitration proceedings. The article concludes that there is an important difference between jurisdiction and authority. Investment treaty arbitration is one legal system amongst many, and cannot afford to appear insensitive to the concerns of domestic legal orders. That is so even where a serious breach of international law appears to be taking place. Investment treaty arbitration tribunals should be wary of applying a generic provisional measures test without first explaining and justifying a tailored anti-suit injunction analysis, which sets a principled and appropriately high bar for intervention. ‘John Marshall has made his decision; now let him enforce it!’ E Miles ‘After John Marshall's Decision: Worcester v Georgia and the Nullification Crisis’ (1973) 39 J South Hist 519, 519.

Sporting events as dramatic works in the UK copyright system

The Court of Justice of the European Union, in the Football Association Premier League and Murphy rulings, categorically concluded that sporting events themselves, and in particular football matches, could under no circumstances be classified as works for the purposes of copyright at the EU level, as they are not a given ‘author’s own intellectual creations’, within the meaning of the Information Society Directive2001/29/EC. Besides dismissing copyright in a sporting event per se, the CJEU leaves open to domestic legal orders its inclusion into subject matter that is worthy of protection, comparable to that granted to works.The proposal advocated in this article is to entitle certain sporting events – the so called ‘choreographed’ sports – to copyright protection in the UK, rather than to other IPRs or specific agreements concluded between a ‘holder’ of IPRs and a broadcaster. Owing to the absence of UK case law on the issue, determining the extent to which a sporting event warrants copyright protection calls for an enquiry into existing and stipulated forms of expression and other requirements for copyright subsistence, specified in the Copyright, Designs and Patents Act 1988 (‘CDPA’). It is submitted in this paper that the most plausible route is to ascertain whether an analogy can be drawn between a sporting event and a ‘dramatic work’, pursuant to section 3(1) of the CDPA, which is inclusive of a work of dance. The other conceivable option, in light of Norowzian v Arks Ltd (No 2), would be to qualify the content of films or broadcasts, reproducing sports competitions, as dramatic works.

The Pro Homine Principle's Role in Regulating the Relationship between Conventionality Control and Constitutionality Control

This paper conducts a comparative analysis of the American and European Conventions on Human Rights to review the relationship between conventionality control and constitutionality control assumed by domestic courts. First, the analysis negates the monist pyramid model by pointing out the limits of the supremacy of international law and constitution. Given the integration of conventionality control into constitutionality control in practice, this study instead presents the normative framework of the trapezium model, crowning the common values recognized by both national constitutions and international law. This research also contributes to clarifying the pro homine principle, a fitting concept to the trapezium schema, focusing on the most favorable treatment for individuals. Specifically, it proves the principle’s double function to offensively pierce or defensively safeguard the boundary between international and domestic legal orders. Finally, it argues that in cases of conflicting rights between different individuals, the pro homine principle relativizes an absolute protection of certain rights to strike a balance between them. In essence, conventionality control and constitutionality control should be coordinated by the open-minded, substance-oriented, pro homine principle within the pluralist trapezium, in lieu of the principle of the closed, formal supremacy of international law or constitution within the monist pyramid.

The ICRC Interpretive Guidance on DPH in the Domestic Legal Orders Sociological and Democratic Legitimacy

The Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law (the ‘Interpretive Guidance’) issued by the ICRC in 2008 recommended two interpretive standards on the use of force against individuals in armed conflicts. While one standard defines ‘direct participation in hostilities’ by reference to ‘functional membership’ such that anyone with a continuous combat functions in an organised armed group will lose her/his civilian immunity and be subject to attack on a continuous basis, the other standard requires that the kind and degree of force used in the attack be graduated according to military necessity. This article surveys the court decisions, military manuals and legal or policy documents in different domestic jurisdictions since the publication of the Interpretive Guidance to illustrate the different levels of the adoption of these standards in domestic legal orders. It then uses Franck’s theory of legitimacy to identify the possible legitimating factors that gave these standards the capacity to induce their adoption by domestic actors. Lastly it uses Habermas’ theory of deliberative democracy to examine whether and how the governance by these transnational standards of the people subjected to them may be justified by their democratic legitimacy.

Comparing the intensity of scrutiny for ‘domestic’ and implementing bills: does transposition of EU law reduce political contestation in national parliaments?

ABSTRACTResearch on the role of national parliaments in European Union (EU) matters dominantly concentrates on ex ante scrutiny and mostly neglects that many parliaments are constitutionally obliged to play an important part in the implementation of EU law into domestic legal orders. The low interest is tied to an argument that even if national parliaments are involved in transposition, they only serve as constrained agents of the EU. This article tests this assumption and inquires whether there are differences between parliaments’ scrutiny of bills (laws) transposing EU impulses and ‘purely domestic’ bills. Analysis is based on quantitative data from the Czech Chamber of Deputies and the Slovak National Council. While the project remains essentially exploratory, results suggest that while the implementing bills are debated considerably less than the domestic bills, for the remaining included indicators the intensity of scrutiny for the former group of bills on average does not differ from the latter group. The findings might therefore challenge the thesis that that the implementation process is mere formality that consequently reduces political contestation in the legislatures.