General Principles Of Law Research Articles

A Study on Discrimination based on Gender in Parental Leave: The Relevance of the Proportionality Test to the ECtHR's Jurisprudence on Gender-Based Unequal Treatment and the Prohibition of Discrimination under Article 14 ECHR

The principle of the proportionality represents a general principle of law. Its main aim is to protect the citizen from arbitrary and improper state action and in this respect it acts as a standard of justification for interventions by the authorities. Even if this principle is not explicitly standardized in most national constitutions of the Member States of the EU or in the ECHR, it is derived from the principles of democracy and the rule of law and is generally recognized in the law of the ECHR. The levels of the proportionality are first divided according to the legitimate aim of the legally relevant measure, then to its suitability for achieving the aim, followed by its necessity and finally the proportionality test in the narrow sense, the appropriateness of the measure. The prerequisite for the scope of application of Art. 14 of the ECHR is that persons in comparable or legally similar situations have been treated differently. The list of possible grounds for discrimination in Art. 14 of the ECHR is by no means exhaustive, but merely exemplary. Art. 14 of the ECHR also applies when states have granted rights beyond their obligations under the Convention, which fall within the scope of an article of the Convention. According to the ECtHR, unequal treatment according to the criteria just listed constitutes discrimination in the sense of a violation of Art. 14of the ECHR if it lacks an objective and reasonable justification. The principle of gender equality and the related prohibition of discrimination under Article 14 of the ECHR is too important in a pluralistic and tolerant European society to justify its violation merely by referring to the margin of appreciation of the member states. In order to achieve results in line with interests in the future, the case law of the ECtHR can build on the argumentation structure in the case of Konstantin Markin v. Russia. The only aspect requiring improvement is the control density of appropriateness and necessity, which should be taken seriously.

Legal problems arising from the electronic administrative contract Legal consultant

Technical development has taken a large area of management’s work sectors, including administrative contracts, as they are one of its legal activities. Electronic administrative contracts in that their application in state institutions has become uncontroversial, as they are concluded with confidence and legitimacy and do not violate the general principles of law.

The Uses of the Outputs of the International Law Commission in International Adjudication: Subsidiary Means or Artefacts of Rules?

This paper examines the methods which international courts and tribunals (ICTs) employ when using ILC outputs for the purpose of determining rules of international law and their content. Specifically, it identifies common patterns in the ways in which ICTs, first, justify their reliance on ILC outputs and, second, deal with their ambiguities. The paper argues in favour of a consistent methodology for the treatment of ILC outputs in international adjudication. Such a framework is based on the distinction between the identification of the status of a normative proposition contained in these texts and the determination of its content or its interpretation. The identification of the status of a normative proposition requires a critical assessment and reconstruction of the evidence leading up to its development taking also into account that these instruments are not a monolith from the perspective of sources. However, the interpretation of a proposition whose status is uncontested follows a line of inquiry akin to treaty interpretation. This observation has broader implications for the process of interpretation in international law. Specifically, apart from the context of treaty interpretation, international courts or tribunals interpret the normative propositions contained in ILC outputs as a methodological shortcut for the interpretation of rules of customary international law or general principles of law. Conversely, the employment of methods akin to treaty interpretation in this context can constitute evidence of the emergence of common rules, principles, or good practices of interpretation that are also applicable to unwritten international law.

The Origins and Operation of the General Principles of Law as Gap fillers

Abstract The gap-filling function is a prominent feature of general principles of law (GPL). However, there are several questions surrounding the prominence and characterization of this function. In light of this, this article revisits the origins of the GPL and their gap-filling function to understand why it gained prominence, and what it means to international law. By tracing the debates of the Advisory Committee of Jurists on the sources of international law, this article identifies that the necessity of gap filling is tied to the prevalent idea of the completeness of the international legal system. The article further explains the origins of the gap-filling requirement and how the GPL satisfy it. By historicizing the gap-filling discourse, the article argues that the GPL have been used to strengthen the completeness of international law.

The New Recipe for a General Principle of Law: Premise Theory to “Fill in the Gaps”

AbstractThis article proposes a new theory, “premise theory”, to account for recent international criminal courts’ practice on finding general principles of law. After analysing the traditional theory of transposition from national to international legal settings, and the modification/choice model, this article demonstrates that the focus should be shifted from arbitrariness to the determinants of results of recognizing general principles of law. Premise theory explains a mechanism that judges modify a common legal principle or choose the most appropriate national legal principle to apply to the issue at hand to reflect the premises of the legal field, the court, and, sometimes, even the individual case. This article concludes with a proposal for utilizing premise theory as an explanatory tool and as a guide for legal reasoning to increase judicial transparency and predictability. Lastly, it advocates for the application of premise theory to other areas of international law.

"ФОРМИРОВАНИЕ ПРИНЦИПА РАВЕНСТВА КАК ОБЩЕГО ПРИНЦИПА ПРАВА"

The article is devoted to the formation and development of the principle of equality as a general principle of law, the concept and essence of the principle of equality in law, philosophical and legal interpretations of this principle, the meaning of the principle of equality in lawmaking, law enforcement and legal responsibility, sentencing, legal culture, public relations and its essence in international law. The relevance of the research topic is explained primarily by the fact that in conditions of deepening legal reforms carried out in society, raising the legal awareness of the population, ensuring human rights and freedom, general principles of law are important. The influence of general principles of law such as justice, equality, humanism, legality and democracy on the development of branches of law is indisputable. The listed principles are reflected in the Constitution of the Republic of Uzbekistan as well as the basic codes of the Republic of Uzbekistan. The purpose of the work is to investigate the process of formation of the principle of equality, clarification of the essence and content of this principle, various interpretations of the concept of the principle of equality, the influence of the principle of equality on the development of international law. In the course of the study, the methods of system-structural, comparative-legal and statistical analysis, formal-logical, general scientific and specific scientific methods of scientific knowledge have been used. As a result of the work carried out, on the basis of a review of various approaches of domestic and foreign scientists, such issues as the principles of law, the concept and content of the principle of equality, the connection of this principle with the principles of justice and legality, the influence of the principle of the right on the administration of justice, the imposition of punishment have been analysed. The research results can be used in scientific activities related to research on the general principles of law and in the classes in higher educational institutions.

ILC WORK ON THE CODIFICATION OF GENERAL LEGAL PRINCIPLES

The codification of sources of international law is a monolith and lengthy project. After many decades of codifying international treaty law and international customary law, the International Law Commission has finally decided to tackle the topic of General principles of law as late as 2018. The codification of general legal principles is challenging for many reasons: the unclear or ambiguous practice of states and international justice, lack of unity of opinion in the doctrine, and terminological inconsistency. However, in the current debate within the International Law Commission, the most controversial issue is the idea of the “two-category” approach which entails their dual origin. Namely, they can be derived not only from national legal systems but also from the international legal order itself. The paper provides an overview of the work of the International Law Commission accomplished so far, with the aim to shed light on certain aspects of the proposed course of action.

Civil-law characteristics of the terms of wrap license agreements

The article is devoted to the study of the most significant features of the terms of wrap license agreements. In the domestic civil law science, the outlined topics are not properly developed. At the same time, the process of Ukrainian Civil Law recoding, attempts to reform both the Contract Law general principles and the provisions on disposal of intellectual property rights agreements, as well as globalization and European integration processes strengthening require intensification of scientific efforts. The author considers the features of wrap license agreements that directly affect their content. The contract theory and practice of the USA, Canada and the United Kingdom in the relevant field are analyzed and generalized. On this basis, the subject of wrap license agreements is formulated as the permission to use the objects of copyright and (or) related rights. It is proposed at the Civil Code of Ukraine level to consolidate the possibility of granting only non-exclusive licenses under the studied agreements. It is emphasized that under these agreements only the right to use the object of intellectual property rights could be provided. It is proved that the use of the object of copyright and (or) related rights for functional purposes coexists with its proper legal use. It is pointed to the need to ensure the possibility of temporary use of such an object outside Ukraine, if there is no term concerning the territory in the agreement. It is noted that when the licensor establishes the auto-prolongation of wrap license agreements, the licensee must be duly warned about this and provided with a transparent possibility to refuse the prolongation. The importance of establishing the non-paid presumption of wrap license agreements is substantiated. The most common in the software and databases mass markets payment models for the use of copyright and (or) related rights are named. Finally, it is concluded that it is necessary to conduct further research of the wrap license agreements and to enshrine them into the civil legislation of Ukraine.

Judicial Review at the Asian Development Bank Administrative Tribunal

AbstractInternational organizations create independent administrative tribunals to decide employment disputes that jurisdictional immunities place beyond the reach of national courts. The Asian Development Bank Administrative Tribunal's express mandate is to enforce the terms of employment of staff members but, in discharging that function, it has not hesitated to review the validity of those terms and strike down those that contravene the Bank's basic legal documents and “general principles of law”. This paper reviews how this power of judicial review emerged in the case law of the Tribunal, and what it has meant for both the institutional autonomy of international organizations and the fair treatment of staff members.

Reflections on international dispute settlement mechanisms for the Fukushima contaminated water discharge

The Japanese government's attempt to discharge the water contaminated by the Fukushima nuclear reactor into the sea raises some international legal issues. International law prescribes settlement mechanisms for disputes relating to transboundary environmental damage; however, legal challenges have appeared in the disposal of the Fukushima contaminated water discharge. This paper argues that despite the uncertainty of the potential pollution damage of the discharge plan, Japan's decision has already violated multiple obligations arising from international conventions, customary international laws, and the general principles of law. This paper, after a wide examination of the possible international dispute settlement mechanisms, proposes that certain actions will be beneficial for potentially affected states: applying for an advisory procedure or requesting provisional measures under a contentious procedure. Furthermore, the Fukushima incident presents the international community with an opportunity to consider legal questions related to the consequences of nuclear accidents in the future, including the disposal standards and procedures of nuclear-contaminated materials particularly. Furthermore, to concretize the procedural and substantive requirements according to the international laws, a new international cooperative mechanism is needed.

O dyskontynuacji prac parlamentu raz jeszcze

Once again about the discontinuation of the work of the parliament The author analyses the historical foundations of the concept of discontinuity in the work of the parliament. It presents the development of this principle in the European legal culture and activities in the initial period of forming the parliament in Poland. He indicates various ways of justifying the existence of the present-day principle of discontinuation in a democratic state ruled by law. In particular, it refers to the concept of general principles of law. It also analyses the jurisprudence of the Polish Constitutional Tribunal. Recognizes the principle of discontinuation of the work of the parliament as a permanent element of the state system. However, he points to the problems of integrating it into the system of norms of the Constitution of 1997.

El secreto comercial made in Paraguay: los alcances y límites en el derecho laboral y en el derecho penal

In Paraguayan Law there is not a single norm which regulates the confidential information that should be kept “in secret”. Instead, there are several regulations on the “confidential information” that should be kept “in secret”. Moreover, these different regulations come from different areas of the legal arena, as the Civil Law, Labor Law, Criminal Law and Public Law. Furthermore, in Paraguayan Law there are known several “levels” of secrecy, namely, “professional secrecy”, “industrial secrecy”, “business secret”, “trade secrets”, “classified matters”, etc. Even though these names suggest a unique o at least a similar protection. But in fact, these “levels” of secrecy differ in its legal protection, namely in its scope as in its quality.In this work the “legal secrecy obligation” will be analyzed from both the Labor Law and Criminal Law points of view, taking in consideration the ‘General Principles of Law’ and the rules of other legal areas like Civil Law or Public Law, aiming the proper reach of the labor and criminal regulations on the “legal secrecy obligation (considering the fact that “trade secrets” sometimes are not the same as “professional secrecy” and so on).

Legal doctrine of F. A. Hayek: light and shadows

This article discusses the legal doctrine of the famous Austrian economist Friedrich August Hayek. Its author’s assessment is given, in which special attention is paid to the position of the scientist in relation to the interaction of law and economics. The article emphasizes that Hayek assigned a significant place in his research to the general principles of law. It is concluded that Hayek paid the main attention to freedom, which to a certain extent was absolutized. Next, in importance, the scientist singled out legality, then equality, a very original interpretation of justice, and the principles of humanism and democracy were clearly underestimated.

Force Majeure and Investment Arbitration

Abstract This article addresses force majeure in international investment arbitration as it interacts with relevant domestic, commercial and international laws. As a classic excuse for non-performance of obligations in most domestic legal systems and a ‘general principle of law’, force majeure is also widely accepted in public international law as a ground for precluding wrongfulness of the acts of State under the Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). In investment arbitration practice, force majeure has been invoked to justify non-performance of contractual obligations or treaty obligations. For the former, the contractual force majeure clause is crucial, while for the latter, investment treaty tribunals tended to refer to ARSIWA Article 23 on force majeure. The case law has demonstrated that the conditions for the invocation of force majeure as a circumstance precluding wrongfulness under the ARSIWA are much narrower and stricter than the conditions set for invoking force majeure in the context of contract or commercial law. The article argues that the different standards applied by treaty and contract arbitration tribunals are rooted in the distinct systems of applicable law, which traditionally did not cause many problems or attract much attention. With the increasingly blurred boundaries between domestic and international, private and public laws, the legitimacy and sustainability of such conventional distinction might demand reconsideration. It suggests to explore a more consistent interpretation and application of force majeure claims under the two legal systems, and one way forward is to allow more flexibility in the interpretation and application of ARSIWA so that the international rules on force majeure could be better aligned with force majeure under commercial law.

The law of international treaties in the scientific works of Hersch Lauterpacht

The article examines the doctrinal contribution of Professor Hersch Lauterpacht to the development of International Treaty Law. Based on the analysis of Hersch Lauterpacht's scientific work in the field of international treaty law, his contribution to the development of concepts of codification and progressive development of international law, principles of interpretation, and the relationship between the principle of effective interpretation and intentions of the parties to treaty.
 It is emphasized that, according to Lauterpacht, the codification of international law is necessary for the international community as a whole, so it should be carried out within the UN and aimed at its general acceptance by states. Therefore, all states should be given equal opportunities to participate in and join the work on codification.
 It is pointed up that among the principles of interpretation of international treaties, the main of them, H. Lauterpacht singles out the principle of good faith. The scholar considers this norm as one of the general principles of law recognized by civilized states in the matter of interpretation.
 Particular attention is paid to the doctrinal views of H. Lauterpacht on the relationship between the principle of effective interpretation and the intentions of the parties to the agreement. The researcher has noted that the intention of the parties should be a primary factor in the interpretation of agreements. According to H. Lauterpacht, in the interpretation of treaties, any considerations - effectiveness or inefficiency - which tend to turn certain intentions of the parties into a factor of secondary importance, are incompatible with the true purpose of interpretation. In fact, applying the principle of efficiency, the court does not replace the intentions of the parties and does not replace it with a third factor. Professor H. Lauterpacht, exploring the relationship between the principle of efficiency and the common intention of the treaty parties raises one of the most controversial and elusive issues of jurisprudence - the nature and limits of the judicial function. In his view, this function is largely to interpret the rule of law, regardless of the source in which it is set out. In the international sphere, the problem is complicated by the existence of a number of factors, such as the lack of common intention of the parties directly related to the subject matter of the dispute; international treaties or individual provisions are often a political substitute rather than a legal expression of the agreement of the parties.

Reassessment of the ‘General Principles of Law’ Referred to in Article 38(1)(c) of the ICJ Statute

Currently, there exist several academic and legal questions on which common perception is not established among states. One of them concerns the interpretation of ‘general principles of law’ mentioned in Article 38(1)(c) of the Statute of the International Court of Justice. Variance in the interpretation of ‘general principles of law’ manifests itself mainly in controversies over whether they are principles of domestic law or international law and over the implication of ‘civilized nations’ that qualifies ‘general principles of law’. The article aims at analysing such divergent views surrounding ‘general principles of law’ and voicing the authors’ view on the matter. By examining the principles in comparison with international conventions and custom, and in terms of wordings employed in the relevant provisions, the article attempts to demonstrate that they must be viewed as principles shared by national law systems of certain states. It also argues that in view of the essential characteristics of international law, and in terms of the meaning of the term ‘civilized nations’, ‘general principles of law’ cannot be deemed a universal source of international law, and in particular, that since the phrase ‘civilized nations’ was not intended to include all states in the world, it is necessary to amend the relevant wording.

Are Dictates of Public Conscience a Norm of jus cogens in International Humanitarian Law?

This essay deal with one of the components of the general principles of law that has a normative character in international humanitarian law: the dictates of public conscience. Through a critical approach to international law, this essay intends to contribute to the academic discussion in the sense that the dictates of public conscience have acquired the status of jus cogens in international law. To this end, Part I of this essay reviews the evolution of dictates of public conscience. Part II of this essay shows that the complexity of the dictates of public conscience is given by the difficulty of establishing a specific content as a normative device. In this regard, the intended contribution is to point out that the dictates of public conscience are an open norm that nevertheless has an identifiable purpose. Part III reinforces the previous statement by pointing out that the content of the dictates of public conscience is dynamic and therefore situational, which allows for a progressive interpretation. It concludes with the assertion that the dictates of public conscience have attained the character of jus cogens.

Judicial Reasoning and Non-State Participation before Inter-State Courts and Tribunals

Abstract The present article explores the premise that the participation of non-State actors may in some instances be necessary to the conduct of contentious or advisory proceedings before inter-State courts and tribunals. It first considers whether such necessity may be directly asserted as a legal requirement, in the absence of lex specialis treaty mechanisms or party consent. The article thus considers the potential to apply general principles of law, customary international law, and doctrinal concepts to this question. Unsatisfied with reliance on the stated legal considerations of international courts and tribunals, however, it turns to assess the root causes of such necessity, beneath pronouncements of legal sources and doctrine. The authors identify these as practicality – which speaks to what a court or tribunal must do to fulfil its mandate today – and legitimacy, which speaks to what it should do to ensure that its mandate is respected tomorrow.

General principles of law and taxation

Although the general principles of law at first sight do not bring about numerous associations with the sphere of taxation where the processes of compliance with legal rules or applying them must end with a precise numerical result, both the relevance and the significance of these principles in the sphere of tax law are more and more noticeable. The principle of proportionality has been invoked in probably every second VAT judgment of the Court of Justice for years. The principle of legal certainty has made its way to the case law of the said court as well as the Constitutional Tribunal in Poland. The importance of other principles is definitely on the rise.

Prosecuting Human Violations Committed in the Anglophone Cameroon Crisis: A Disquisition on the Legal Framework

The prosecution of perpetrators of mass violations of human rights remains one of the unfinished tasks of Africa's ʺdemocraciesʺ which, in itself, is eloquent evidence of the need for systemic arrangements to protect human rights, build a culture of the rule of law and ultimately defeat impunity. Emboldened by the absence of the foregoing, accountability for human rights violations of individuals and the fulfilment of the corresponding duty to prosecute violators have been contentious issues in Africa's politically volatile communities. As states are caught betwixt and between protecting human rights and holding individuals accountable, the questions about the State's fulfilment of its international obligations arises. Sourced primarily from international treaties, customary international law, and general principles of law, the duty to prosecute violations of human rights is revisited with a focus on the theoretical and legal framework. Situated in the context of the ongoing Anglophone Cameroon crisis in which political factions of the English-speaking regions are pitted against the French-speaking dominated Government of Cameroon, and bringing to the fore the violations, which have become an odious scourge, this paper argues that there is a sacrosanct duty on the Government of Cameroon to investigate, prosecute and punish such violations. The paper interrogates the relevant international law instruments and engages in a dialogue with relevant and respectable literature penned by prominent scholars and jurists on the issue of accountability. It provides an analytical disquisition on the duty to prosecute which, as argued herein, must be fulfilled by Cameroon given the violations that have been committed during the ongoing Anglophone Cameroon crisis.