Domestic Legal Systems Research Articles

المعاهدات الدولية واجراءات ادماجها في النظام القانوني الداخلي

المعاهدات الدولية واجراءات ادماجها في النظام القانوني الداخلي

The Singapore Convention: Towards a Universal Standard for the Recognition and Enforcement of International Settlement Agreements?

Abstract The Singapore Convention seeks to establish a universal standard for the recognition and enforcement of international settlement agreements resulting from mediation. Assuming it finds wide acceptance, the Convention could harmonize existing enforcement mechanisms, the effect of which typically does not extend to foreign jurisdictions. Ideally, this could leverage mediation in a similar way as the New York Convention helped establish arbitration as the prime means of dispute settlement on the international plane. After contextualizing the Singapore Convention in light of the increasing diversification of dispute resolution methods, this article concludes that this aspiration is unlikely to turn into reality anytime soon. To this end, it considers traditional approaches to the enforcement of settlement agreements as well as the genesis and cornerstones of the Singapore Convention and briefly examines its interplay with arbitral proceedings and domestic legal systems.

Closer to home: How national implementation affects State conduct in partnered operations

AbstractDomestic law, case law and policies play a decisive yet underestimated role in ensuring that partnered operations are carried out in compliance with international law. Research on the legal framework of partnered operations has so far focused on clarifying existing and emerging obligations at the international level. Less attention has been devoted to understanding whether and how domestic legal systems integrate international law into national decision-making which governs the planning, execution and assessment of partnered operations. This article tries to fill the gap by focusing on the practice of selected States (the United States, the United Kingdom, Denmark, Germany and Italy), chosen for their recent or current involvement in partnered operations. By using the International Committee of the Red Cross's “support relationships” framework and based on a comparative analysis of practice, the study seeks to evaluate the effectiveness of national laws, case law and policies according to their ability to prevent or mitigate the risk of humanitarian consequences posed by partnered warfare.

Domesticating Treaties in the Legal System of South Sudan – A Monist or Dualist Approach?

This article examines the approach for the domestication of treaties in South Sudan. Such examination is undergone in light of the theories for the domestication of international law norms into the domestic legal systems of state members of the international community. The article establishes that the approach in South Sudan is not clearly indicated, and seems to be inconsistent with regard to the practice of various institutions linked to the domestication of treaties process in South Sudan. However, the article expands on two foundations: the status quo and the ‘ought to be’ approach. The article argues that the approach as it exists seems to be a monist rather than a dualist approach. This is evident from the indicators of South Sudan's constitutional, legislative and judicial settings such as the text of the Transitional Constitution of South Sudan 2011, the treaty ratification process, the practices of the National Legislative Assembly in respect of international conventions and a judicial circular issued by the Supreme Court of South Sudan. Furthermore, the article advances that the ‘as ought to exist’ approach needs to be a clearly mixed approach, partly monist and partly dualist. Such approach combines the advantages associated with each approach in one place. The article recommends that there is a need to have a well informed, well established and clear status in respect of the domestication approach guided by the various arrangements and settings highlighted above. It may also take account of the various states’ attitudes towards international law and the legal school of thought which forms the basis of South Sudan legal system. Such recommendation could be materialised via an act of parliament, a regulation or a practice manual.

Typology of Interaction between the International Financial Law and the EU Law

INTRODUCTION. Interaction between different legal systems is a substantial challenge for the international law science. Such an interaction becomes even more specific in integration states’ associations which peculiarity is direct effect of the legal acts of such associations with regard to individuals. The article examines various approaches to the interaction between international financial law as a brunch of international law and the EU law. Author outlines different types of the interaction.MATERIALS AND METHODS. Author researched different types of the interaction on the basis of legal empirical materials in the sphere of finance including international agreements, court decisions, recommendations and working documents. Th methodological basis of the research contains general scientific and special methods including logical, historical, analytical comparative and prognostic methods.RESEARCH RESULTS. Interaction typology can be made on the basis of various criteria. International financial law and the EU law use a model of interaction between general and special regime of international law as well as a model of implementation of international law in a domestic legal system. The first model has been applied in two cases. When the European Economic Community was established and when mew Members entered in it (genesis interaction) as well as when Member state left the EU (terminal interaction). In the course of current functioning of the EU gives the priority to the second model. The latter contains two methods of interaction: incorporation and reference. Incorporation of soft law rules has specific features since it may be realized not only via legal instruments but also via recommendations of the EU institutes and bodies.DISCUSSION AND CONCLUSIONS. Basing on the analysis of rule-making and application of law in the EU finance sphere author argues the distinction between monism and dualism is performed using the criterion of the self-execution of international agreements. Interaction of international financial law and the EU law is pursuing on the level of principles and global ideas and values of contemporary world. These principle and values may be declared in the framework of international fora and organizations. Interaction is pursuing on the level ‘general international law and the EU law as a whole’ as well as on the level ‘international financial law and the EU financial law’.

Occupants, Beware of BITs: Applicability of Investment Treaties to Occupied Territories

This article argues that Occupying Powers are bound by Bilateral Investment Treaties (BITs) incorporated into the domestic legal system of the occupied State before the occupation. Indeed, Article 43 of the Hague Regulations of 1907 requires the Occupying Power to respect the laws in force in occupied territories. Part II of this Article shows that the phrase laws in force in Article 43 of the Hague Regulations includes pre-occupation BITs between the occupied State and third States. Therefore, the occupant's consent to be bound by those BITs, even if the occupant is not a party to them, is indirect or derivative. This form of consent not only includes the occupant's submission to the substantive guarantees of the applicable BIT, but also to its dispute resolution clauses. This means that foreign investors could assert their rights under pre-occupation BITs against the occupant through international arbitration. Part III explains that the occupant could not rely on its purported immunity from local law to avoid jurisdiction of an investment tribunal.Finally, Part IV discusses the impact of the concurrent application of the law of occupation and BITs in investor-State disputes.

SPECIFIC ISSUES OF LEGAL REGULATION OF INFORMATION RELATIONS

The purpose of this article is to identify the main problems and consequences of the formation of a «digital» information society for the world community through the relationship of concepts such as information society, information relations and information security. For this purpose, such methods were used as analysis of the legal framework in the field of information law, study of legal and methodological literature on the theory of information society formation to determine the signs and identify the main causes and consequences of the problem; study; systematization, comparison, generalization. Results: the domestic legal system is currently undergoing a complex process of bringing into line with international standards and adapting to rapid social change. Currently, social transformations are taking place mainly in line with the rapid informatization and digitalization of all spheres of public life. The legal sphere, which is a part of social development, is no exception. Informatization is in many respects the basis for the successful implementation of the paradigm of sustainable development in Ukraine. The main feature of modern civilization is the growing importance of information in social relations. The formation of a «digital» (information) society in the modern civilized world raises the problem of information security and protection of human rights and freedoms. Public relations arising from information, play an extremely important role in the life of modern state and society. Modern processes of globalization and informatization of society only strengthen the social significance of this category of social relations, bringing them to the forefront. The article considers the peculiarities of the process of formation of the information society in Ukraine and highlights the problematic issues of this legal phenomenon in the light of similar processes taking place in the global dimension. The significance of constitutional norms in the system of information law as a whole is actualized, the analysis of the normative-legal base of ensuring the information law of Ukraine as well as the legal mechanisms of regulation of information relations by the international institutional system is carried out. The main ways of legal influence on the improvement of information relations in order to ensure human rights and freedoms, their protection and information security are also identified. Discussion: the study allowed to draw conclusions about the existence of contradictions of regulations in the field of information relations of Ukraine and the provisions of international and European legal acts. The factors of Ukraine’s lag behind the world development of information relations are also considered; the main directions of improving the information legislation of Ukraine by expanding the types of information activities and their modernization, implementation of European and international information law in the information legislation of Ukraine, systematization of national information legislation by codification - development of the Information Code of Ukraine.

The Implementation of International Agreements in the Polish Legal System. The Selected Aspects of Practice in Recent Two Decades

The issue of the implementation of international agreements in the domestic legal system is of substantial significance. It guarantees the efficiency of international law in the domestic space. The article presents the selected aspects of this process in reference to the practice of the Republic of Poland, within the last two decades with the particular consideration of the position of the Council of Ministers in this respect. The subject of analysis is the legal character (and its sources) of the obligation of the implementation of treaties, both at the level of international and domestic law. Subsequently, the conditions of the implementation have been considered, including the costs and the issue of application of international agreements. The consequences of non-implementation of a treaty for enforceability of its provisions within the Polish legal system constitute the subject of the analysis in the last section of the paper.

MEDIATION AND PUNISHMENT: THE PAST AND THE PRESENT

The purpose of this scientific publication is a comprehensive doctrinal study of the institute of mediation and its legal dimension. The historical analysis of the formation of mediation procedures in the process of historical formation of the social state is carried out. The problems of implementation of the mediation institute in the modern legal system in relation to punishment are revealed. The connection between the process of expanding the subject of legal regulation and mediation procedures in the legal system is shown. The article uses the methods necessary for doctrinal analysis of mediation as a legal institution, namely: formal-legal, comparative-legal and specifi cally historical. The result of the study was an analysis in the historical aspect of legal institute of mediation. Theoretical significance of the study lies in the development of a unified concept of mediation in the context of punishment. The necessity of understanding mediation as a complex inter-sectoral institution in the domestic legal system is substantiated. The practical value lies in the assessment of mediation as a complex legal institution for the domestic legal system in general and for the judicial system in particular.

Formation of the legal system theory in Legal science (Part 2)

The article is devoted to the study of the formation of the theory of the legal system in legal science. The third stage in the development of the theory of law is characterized system, which begins at the beginning of the second decade of the XXI century. and continues to this day. t this stage, the interpenetration of ideas, provisions, conclusions about the development of the legal system within the legal sciences and areas that study the legal systems: the theory of state and law, comparative law, international law, philosophy of law is increasingly being traced. This stage is characterized by the search for answers to the question of approximation of the domestic legal system to European law; the mechanism of interaction between the national legal system and the EU legal system; features of systematization and unification of legislation at the stage of legal integration; directions of transformation and modernization of the legal system of Ukraine in the context of European integration and globalization, etc. The interpenetration of ideas and provisions largely reflects the objective process of strengthening and deepening the interaction of national and international legal systems, the inability to answer the vast majority of questions that arise in this regard, limited only to national or international law
 In recent years, the legal system of Ukraine, along with the traditional ones, has faced fundamentally new problems caused by external factors, including such as the establishment and consolidation of European foreign policy priorities, the search for effective legal means to counter threats to independence, national sovereignty, territorial integrity, territorial integrity, territorial integrity, energy threats, protection of citizens' rights violated as a result of annexation of Crimea, occupation in eastern Ukraine. Solving these and other problems is possible only through a comprehensive, systematic understanding, based on the achievements of the general theory of law, comparative law, international law, philosophy of law with the use of new approaches and methods, that is, within the framework of the general (universal) theory of law. The peculiarities of the development of legal science at this stage at the present day raise the question of the need to form a universal (general) theory of law as a conceptual basis of the theories of national and international law.

Da emergência do regime internacional de refugiados à sua internalização no âmbito doméstico: um estudo de caso sobre o Brasil

O presente artigo objetiva analisar o Regime Internacional dos Refugiados, abordando sua emergência nas relações internacionais e sua internalização no Estado brasileiro, por meio de um estudo de caso qualitativo. Assim, a partir do modelo analítico construtivista do Ciclo de Vida das Normas, proposto por Finnemore e Sikkink, o trabalho explora o processo de emergência, propagação e internalização das normas relativas à proteção dos refugiados no mundo e, sobretudo, no Brasil. Tal regime começou a ser construído no século XX, se consolidando a partir da Convenção de 1951, relativa ao Estatuto dos Refugiados, e foi disseminado e ampliado pela comunidade internacional, tendo suas normas adotadas por diversos Estados, influenciando mudanças em suas legislações domésticas. Ainda que o Brasil tenha sido um dos primeiros países a aderir ao regime, passou por um longo e gradual processo de internalização. Mudanças significativas em sua postura somente ocorreram após o término do período ditatorial, sobretudo com a positivação dos compromissos assumidos internacionalmente pelo país na forma de uma lei interna voltada ao refúgio. A pergunta que orienta o artigo é: como se dá a internalização do Regime Internacional de Refugiados pelo Brasil? Conclui-se que, atualmente, apesar de possuir um ordenamento jurídico sobre o tema considerado pioneiro – por adotar uma definição ampliada de refugiado e conceder importantes direitos à essa população – o país opta por adereçar um dos maiores contingentes de deslocamentos forçados de sua história por outros meios, díspares ao instituto do refúgio, se distanciando, assim, deste regime internacional.
 
 
 
 Abstract: This paper analyses the International Refugee Regime, covering its emergence in the international relations and its internalization in Brazil, through a case study. Therefore, applying the Norm Life Cycle analytical model developed by Finnemore and Sikkink the article explores the emergency, diffusion, and internalization processes of norms related to refugee protection around the world and, more specifically, in Brazil. The refugee regime began in the early twentieth century and its tipping point occurred with 1951 Convention Relating to the Status of Refugees; throughout the years, the regime was spread and broadened by the international community and its norms were adopted by many states, influencing changes in their domestic legal systems. Even though Brazil was one of the first states to adhere to the regime, it went through a long and gradual internalization process. Significative changes in its posture only occurred after the end of the country’s military dictatorship, notably when its international commitments were transformed into a domestic law regarding refugees. The main question this article seeks to answer is: how do Brazil internalize the International Refugee Regime? The paper concludes that despite having a domestic law perceived as pioneer on this matter – due to the adoption of a broader refugee definition and the safeguard of important rights to that population – the country chooses to address one of the largest contingents of forced migrants of its history through other mechanisms other than refuge; hence, distancing itself from that regime.
 Key-words: International Regime; Refugees; Norm Life Cycle; Brazil; Constructivism.
 
 
 Recebido em: maio/2019
 Aprovado em: março/2020

Influence of the Law of the Council of Europe on Substantive Administrative Law in Poland. Selected Issues

<p>Legislative powers of the Council of Europe have a crucial impact on the domestic legal systems of the EU Member States including substantive administrative law, i.e. such an area of administrative law which defines rights and responsibilities of the public administration bodies and citizens. The legislation created by the Council of Europe’s bodies has a great impact on the areas of law which were earlier regarded as the exclusive responsibility of a given country. The Council of Europe has always been a major source of standard setting. This paper analyses selected areas of substantive administrative law taking into account hard law and soft law documents developed under the auspices of the Council of Europe.</p>

The Kosovo Specialist Chambers’ Rules of Procedure and Evidence: More of the Same Hybridity with Added Prosecutorial Transparency

The Rules of Procedure and Evidence of the Kosovo Specialist Chambers incorporates procedural rules from Kosovo’s domestic legal system, innovative and useful modalities, procedural rules, practice directives, and lessons learned from the other international(ised) criminal tribunals. Based on a presentation given on 22 June 2018 at Leiden University’s Grotius Centre Supranational Criminal Law Lecture Series — The Kosovo Specialist Chambers: Comparative Legal Perspectives — this article provides a defence perspective on some of the modalities found in the Rules of Procedure and Evidence. In the author’s opinion, some of the provisions on disclosure provide greater protections of fair trial rights for suspects and accused during the confirmation and pre-trial stages than the rules of other international(ised) criminal tribunals, while also maintaining the schizophrenic features found in these international(ised) jurisdictions — placing the burden of proof on the prosecution while granting the trial judges discretionary authority to engage in truth-seeking activities.

Back to the Legal Middle Ages?

ABSTRACT Russia initiated the creation of the Eurasian Economic Union and the shaping the all-encompassing Greater Eurasian Partnership. For these geopolitical projects to successfully move forward, Russia must place its bets on using the toolkit of international law, while encouraging the development of regional and transregional integrational law and the systemwide modernization of its own domestic legal system. Accordingly, it is in Russia’s interests to preserve a vitally important quality of its legal system—openness to international and supranational law—as well as to strengthen and defend international law and refute all accusations that international law is ineffective or has even already collapsed. All theoretical constructs and statements about how international law is at the brink of a profound crisis contradict objective truth and common sense. They were only needed in order to untie various actors’ hands in international affairs. In actuality, adherence to international law is as necessary as ever. Without it, decent international cooperation cannot be restored, peaceful coexistence and solutions to global problems cannot be provided, and development for all cannot be achieved. It is vital to understand that it is in fact international law and supranational law that are the genuine law, while national law, on the contrary, often merely legitimizes lawlessness and barbarity. Prominent Russian legal scholars were writing about this at length and with authority in the early 20th century. Furthermore, today international law is only one part of the global regulatory system.

CURRENT PROBLEMS OF CIVIL LAW OF UKRAINE IN OTHER JURISDICTIONS

This article is an attempt at a comprehensive legal analysis of current problems of civil law in the fields of contemporary law of Ukraine. With regard to cross-industry links, legal doctrine is defined as relations of interdependence, conditionality and commonality between different legal sectors, including their individual parts. In particular, the problems of correlation of civil law of Ukraine with other branches of law, such as labor law, business law, administrative law, criminal law, information law, financial law, are considered. Considering the problems of civil law in the context of modern law, the connection between private and public in civil law of Ukraine was highlighted. It has been concluded that scientists have for many years regarded civil law as a basic component of private law, and in some cases even identified it. At the same time, both the branches of private law and the branches of public law are recognized as components of the unified system of law of Ukraine, and, accordingly, they cannot exist completely autonomously from each other. All areas of law interact and interact. It was possible to distinguish the civil law of Ukraine from other basic branches of the system of Ukrainian law, and to draw some conclusions about the recognition of the civil law of Ukraine as a complex branch of law. Civil law terms and concepts used in other areas of law, relevant industry codes or other regulatory issues were also considered. The cross-sectoral links of civil law, which are not only limited to the legislative sphere, but also the cross-sectoral links at the level of enforcement are highlighted. This article stated that in order to achieve a stable and efficient functioning of the legal system, as a component of the domestic legal system, it is possible, subject to fruitful cooperation of the legislator, theorists and practitioners, their main task – to justify and develop a single organic complex of balanced branches of law. That is why special attention should be paid to the interaction of civil law with other branches of Ukrainian law, in particular, to determine the points of their contact, permissible situations and limits of mutual influence. The tendency to expand the sphere of civil law is reflected in the domestic law enforcement practice, which is reflected in the actual extension of civil law structures to public rights, the judicial protection of which affects the rights and obligations of a private nature (in particular, it concerns a tax lien, financial credit, etc.). It is concluded that the system of civil (private) law should be characterized as clear criteria for boundaries of action and separation from related fields (industries). Public law, defined by the codes of the relevant sphere (branch) of law, and take into account the tendencies of development of relevant spheres of public relations by means of norms capable to create inter-sectoral links with public-law norms in the framework of complex legislative acts.

The Transposition of International Criminal Law Concepts Into National Jurisdictions: The Case of Genocide

AbstractThis article discusses preliminary findings of a study on the transposition of the legal concept of genocide into 131 national jurisdictions. The specificities of this transposition into national criminal systems, as well as those related to the international legal definition of genocide, are described in the first part. The communicative situations in which the concept of genocide has been transposed are then examined in order to show their scope and breadth, and to which extent they contribute to the transformation of the concept of genocide. Trends related to the object of transformation in the definition and their effect on meaning are subsequently outlined. The findings point to a situation where, despite having been the object of multiple consensus at the international level, the concept of genocide has been transformed by the vast array of domestic legal languages and legal systems into which it has been transposed and thereby reinforce the relation between the configuration of the language and law, and the difficulty of translation.

Functions principle of the closest connection in the context of civil legislation of the Republic of Belarus

The object of the research is the current trends in flexible regulation in international private law. The subject of research is the individual aspects of the criterion of the closest connection. The main purpose of the article is to analyze the possibility of using a flexible methodology for determining applicable law on the basis of the current legislation of the Republic of Belarus. The article can be used as a scientific reference point (bridgehead) for a more detailed study of the problems of applying the principle of the closest connection. The author’s study, based on the techniques of formal logic, examines the main aspects of the functioning and application of the principle of the closest connection. The idea is substantiated that for the full application of the principle of the closest connection in the domestic legal system, certain changes are required, as well as a tendentious response of the legislator to the processes occurring in the most advanced legislative systems. Particular attention is paid to the justification of the need to update conflict of laws regulation at the present stage of development of private international law. Examples of presumptions of the closest connection and auxiliary reservations involved in the mechanism for determining the closest connection are given. The study proposed a number of author’s definitions, taking into account the characteristics of the studied legal mechanisms.

Islam-based legal language and state governance: democracy, strength of the judiciary and human rights

States embracing Islam-based laws are frequently seen as struggling with establishing democratic institutions, jeopardizing human rights and encouraging executive encroachment on the judiciary. This paper explores whether the presence of Islam-based legal language in a domestic legal system is associated with lower levels of electoral democracy, fewer protections for private liberties, women’s rights, and a weak judiciary. Relying on original data covering laws in 29 Islamic law states (2001–2012), we focus on Islam-based legal language in these states’ constitutional and subconstitutional domestic legal systems. By itself, Islam-based legal language is not associated with a weak judiciary or the absence of political liberties. However, subconstitutional—particularly legislative—commitments to Islam-based legal language are frequently associated with lower levels of democracy and fewer protections for private liberties and women’s rights.

ОТЛИЧИТЕЛЬНЫЕ ЧЕРТЫ И ОСОБЕННОСТИ ПРАВОВОГО РЕГУЛИРОВАНИЯ ГЕНЕТИЧЕСКОГО СКРИНИНГА ПРИ ОСУЩЕСТВЛЕНИИ ПРЕНАТАЛЬНОЙ ДИАГНОСТИКИ (ПНД) В ЗАРУБЕЖНЫХ СТРАНАХ

The reproductive function of man, at all times in any state, has been a determining indicator of the social and biological health of society. In this regard, the birth of a healthy and full-fledged offspring, as well as the preservation of the reproductive health of the population, acquires special urgency. For society and the state, it is primarily important not only the number of children born over a certain period of time, but also how many of them will be born healthy. The study is devoted to identifying the distinctive features of the legal regulation of genetic screening for prenatal diagnosis (PND) in foreign countries for the possible reception of the most successful solutions in the domestic legal system

A critical analysis of the principal purpose test rule´s core features and its pratical applicability

This study examines the OECD initiative to combat base erosion and profit shifting (BEPS Project), embodied in the Multilateral Instrument (MLI). In this line, the paper deals with the phenomenon of treaty shopping and the general anti-avoidance rule materialised as the principal purpose test rule – or PPT rule –, conceptualising it, presenting its problems and analysing its practical application. Moreover, the paper addresses its compatibility with the domestic legal systems, and other anti-avoidance clauses set out in the Multilateral Instrument, in particular the Limitation-on-Benefits clause – or LOB clause. Finally, the study culminates in its assertions, noting that specific issues on the PPT rule are inescapable to it, and may affect the very effectiveness of this GAAR.