Imperative Norms Research Articles

Bangladesh’s Claim for Reparation from Myanmar due to Rohingya Influx: Options and Challenges

The article summarizes the arguments and counterarguments within the scientific debate on the application of the principles and practices of international law to assess the compensation of a State’s damage as a result of the illegal acts and/or inaction of another State. The main purpose of the study is to analyze the causes of the crisis against the Rohingya ethnic group and to assess its likely devastating effects on Bangladesh. The systematization of literary sources and approaches to the settlement of international disputes of this kind indicate that in practice there are two approaches that can be used to file and pursue a claim for redress for Myanmar. The urgency of solving this scientific problem is that, as a neighboring country, Bangladesh has faced the need to resolve the issue of refugees from the region and accordingly takes an active part in resolving this protracted conflict caused by Myanmar’s actions against the Rohingya ethnic group, the persecuted ethnic minority in the world. According to the Office of the United Nations High Commissioner for Refugees, the unlawful and brutal actions of the Myanmar army have forced more than a million Rohingya refugees to flee their homes and migrate to Bangladesh, causing enormous negative effects on its economy, the environment and the rule of law. The study confirms that, under international law, Bangladesh has the right to sue Myanmar for unfair and cruel oppression of Rohingya rights. During the course of the study, the author has used such sources as periodicals, UN reports, and documents from Rohingya human rights organizations. The principles of international law on state liability are used as a methodological tool for assessing Myanmar’s liability. The results of the study may be useful for policymakers exploring the strategy of addressing the challenges of Myanmar’s compensation claims, as well as for international organizations that are addressing the Rohingya crisis. Keywords: cruelty, international wrongdoing, imperative norm, compensation, state responsibility, Myanmar, Bangladesh, Rohingya national migration, refugee rights, ethnic minorities, damages lawsuit.

Party will autonomy in public-private partnership: Procedural aspects

The article examines the problems of the realization of the autonomy of parties in the process of selecting ways to resolve disputes from public-private partnerships. A public-private partnership is considered as a type of contractual relationship based on the autonomy of will of the parties (the autonomy of the parties). The autonomy of the parties is one of the principles of private relations and is implemented in the material and procedural aspects. The opinion is expressed that the autonomy of the parties was formed as a principle in not only private, but also civil procedural and transnational procedural law. In procedural relations, it is expressed in the freedom to choose the method of resolving a dispute. The procedural autonomy of the parties is limited by imperative norms of national legislation. A comparison is made of methods for resolving disputes from public-private partnerships recommended by international intergovernmental universal and regional organizations and enshrined in domestic and foreign legislation. The protection mechanisms offered by international organizations are based on freedom of choice when selecting a method for dispute resolution by the parties, however, the state may limit the autonomy of the parties in the freedom of choice of procedures. An assessment is made of the prospects for the use of alternative procedures as an effective means of resolving disputes between the state and business structures. There is considerable potential for the extrajudicial procedures in the settlement of public-private partnership disputes. It is noted that in the legislation of the states that allow a foreign natural or legal person as a public partner, international commercial arbitration is usually introduced into the dispute resolution system. One of the trends in the development of the dispute resolution mechanism was the creation of specialized arbitrations for the settlement of disputes in the field of public-private partnerships.

Concept and Position of Peremptory Norms (Jus Cogens) in International Law: A Preliminary Study

Peremptory norms or jus cogens hold a unique position in international law. Unlike customary international law and treaty law, they abide no derivation and bind all states regardless of their willingness to be bound. Some scholars had elaborated fundamental theories to answer the theoretical background of jus cogens. However, they have never reached a satisfactory result. This study aims to elaborate the theoretical background of jus cogens and to observe the relationship between jus cogens, obligation erga omnes, and customary international law. The positivists recognize that jus cogens is an imperative norm within state practice and opinio juris. The positivist theory is not in line with the concept that jus cogens bound to states without their consent since every state has their sovereignty and cannot be bound by any kind of provision without consent. The proponents of the natural law theory stated that peremptory norms are inherited from the tradition of natural law so that it is the highest norm in international law that directly binds countries. On the other hand, the public order theory states that international law recognizes important (imperative) norms, which are hierarchically higher than ordinary norms and customary international law to advance the interests of the international community and to preserve the main values of international law. The three theories are considered insufficient to answer the philosophical basis of jus cogens. In its development, therefore, some new theories have been developed to challenge the basis of jus cogens.

Da transnacionalidade ao helvetismo: dadaísmo, ordem pública e regimes transnacionais privados

Promoting a dialogue between art, law, sports and war, this paper sheds light to the growing relevance of the Swiss concept of public order in private international law with regard to transnational private regimes, bringing the examples of private international law of sports and the self-regulatory scheme of international security companies. Starting with literature review and the discussion of normative documents such as FIFA Regulations, ICoCA Articles of Association and Swiss law, this paper, under inductive method, intends to identify if the purportedly transnational content of private regimes needs to observe any public order. The subject is relevant due to the multiplication of transnational private regimes, such as ICANN for the Internet and “lex mercatoria” for commercial transactions; moreover, the paper aims at identifying possible contradictions in the idea that such orders are autonomous, making an analogy with the Dadaist artistic movement. This contribution, finally, points out that in the two studied examples, there is a clear overvaluation of Swiss law in spite of imperative foreign norms and suggests that such conclusion might be extended to other types of private ordering.

The Architecture Behind the Malpractice Concept Guidelines

The right to life is a goal written in many written and unwritten norms, and alongside it, we can align the responsibility and, at the same time, the liability of those who have the duty to perform the medical act with holiness and dedication. Starting from common law, imperative norms and devices and going beyond the universal right, like for example, the one built up by the European Convention on Human Rights, we can unequivocally affirm that the right to life, health and the integrity of the individual is the most important human right, which not only the state has to protect, but every one of us. Thus, through this study, we will try to substantiate the pillars of ethics that medical art has woven its way through the passage of time, pointing to another essential goal - to prevent malpractice.

Prevention of torture of persons deprived of liberty in Serbia: the State of affairs and challenges

According to numerous international documents, the Constitution of the Republic of Serbia as well as relevant laws and by-laws related to the criminal justice system in general and the field of execution of criminal sanctions in particular, there is an absolute prohibition of torture, inhuman or degrading treatment or punishment and of inviolability of physical and psychological integrity od people. Thus, the most important international documents related to the prohibition of ill-treatment of persons deprived of liberty are analysed in the paper. Moreover, the aim of the paper is to determine the extent to which Serbian legislation complies with the international standards in this field. In order to identify possible shortcomings in this area and, consequently, the needs for improving the protection of persons deprived of liberty from torture, special attention is given to the role of independent monitoring mechanisms in the prevention of torture. This is particularly important if bearing in mind that the right to physical integrity and human dignity falls under the human rights category and that the prohibition of torture has a special status in international law and is treated as an imperative norm, thus, binding every state.

Motives in Gift Contracts // Motiv kod ugovora o poklonu

IIn this paper, the claim is that the motives (initiatives) are an integral part of the case for a gift contract, and that the decisive motive is doubly consequential. Inducing the creation of a contract, the production of final property-related consequences is conditioned by its existence and its permissiveness at the time of conclusion of the contract. From the fact that the Law on Obligations does not explicitly form a positive law institute, judicial practice, from case to case, makes the legal fate of the contract dependent on the existence of a motive referring to pre-war legal rules. The paper studies our concept that focuses on considerations for examining the deduction of a donor’s property which justifies his legal protection if the decisive motive is wasted. It presents the legal foundation and the particular effect of terminating the gift contract in the event of a causal link between the decisive motive for the conclusion of the contract and its disposition after the conclusion of the gift contract. Then, the cases of impermissible motives for the reduction of the property of a donor from the point of view of public order, good customs and imperative norms are analyzed and the sanctions determined. After considering cases of their existence, it was pointed out that the contracting parties, third parties and the public prosecutor who call for their existence should prove that the decision on the gift contract was based on an inadmissible initiative, and not that there was not any. On these grounds, the concept of a gift contract is empirical and comparatively and legally tested. The aim of the paper is to provide the author`s reasoned legal answers based on the primary and secondary sources of information on varying court practice.

Sustainable development: greening and urban agriculture in Lithuania

PurposeThe purpose of this paper is to discuss the measures implemented under the spatial planning law of the Republic of Lithuania, along with various initiatives, to identify whether Lithuania is following the international trend of greening cities.Design/methodology/approachThe authors’ analysis is based on an evaluation of the urban theory-based approach towards greening cities and adopting urban agriculture in Lithuania and legal regulations introduced by the Lithuanian government. The paper specifically analyses the legal requirements enshrined in Lithuanian law that are intended to encourage green infrastructure and urban agriculture in cities as part of the adoption of the principles of sustainable development. The paper focuses on Vilnius, the capital city of Lithuania, to gauge the extent to which the new regulations encourage urban greening and agriculture.FindingsThe authors’ reveals that Vilnius is lacking initiatives with regard to urban agriculture, while existing areas for urban agriculture are disappearing. This is happening despite the promising spatial planning reform in Lithuania, which introduced the principle of sustainable development into spatial planning regulations. This is a cause for concern and should lead to renewed calls for a coherent and ambitious approach to the greening of Vilnius and other cities in Lithuania. Furthermore, the lack of action shows that the vague wording used by the regulations does not actively encourage urban agriculture and even results in ignorance of its virtues. Therefore, more precise regulations on encouraging urban agriculture and greening of the cities should be introduced.Originality/valueThis paper is the first to analyse the extent to which the newly adopted principle of sustainable development in spatial planning could affect the greening of Lithuanian cities and encourage urban agriculture. The paper identifies the sequence of opening the meaning of the sustainable development principle in regular legal norms which encouraging the greening and indicates the lack of imperative norms to ensure the due implementation of sustainable development principle.

THE MAXIM “LAW DOES NOT ARISE FROM THE VIOLATION OF LAW” AND THE MODIFICATION OF PEREMPTORY NORMS

Maxim “ex injuria jus non oritur” is not only a general legal, but also an international legal principle, which states that law doesn’t arise from the violation of law. However, peremptory norms of international law (jus cogens) are not something frozen. They develop, like international law in general, so the latter expressly provides for the possibility of their modification by subsequent norms of the same nature. This inevitably means that, in the period of changing such norms, the behavior of some states will contradict the previous peremptory norm until the emergence of a new peremptory norm is recognized by the international community of states. Does the change of imperative norms result in an exception to the abovementioned maxim? And how do you know whether the actions of the state or group of states have created a new peremptory norm of international law, or they are merely a violation of the already existing peremptory norm? Can moral considerations justify the state’s withdrawal from the maxim of “ex injuria jus non oritur” in the name of creating a new peremptory norm of international law? Or is such a deviation justified by the conformity of the state’s actions to any other norms? Having examined these issues, the author comes to the conclusion that, unlike the positive law, natural law does not know exceptions to the maxim. The author proves that the ground for the emergence of new peremptory norms of international law creates changes in natural law.

Understanding Trade-Related Aspects of Intellectual Property Rights Agreement: From Hard and Soft Law Perspective

Trade-Related Aspects of Intellectual Property Rights (TRIPs) Agree-ment interesting to be understood in the perspective of hard law and soft law. TRIPs Agreement justified as hard or soft law by identifying the norms in the TRIPs agreement. Parameter obligation of TRIPs agreement visible implementation and enforcement of agreement norm with full compliance to fourth of the IPR Convention for the State parties is an indicator of unconditional obligation. Parameters precision TRIPS agreement showed formulation of general obligation setting up the implementation of treaty obligations is regulated in detail and the use of ”shall” term in any norm, describe the imperative norm character and shown indicator as substantial limited of interpretation with the parties might not interpreted. Parameter delegation looked explicitly provision of implementation and enforcement agreement that put an obligation on national authorities of state parties through domestic law and its courts. Parameter obligation, precision as well as delegation showed as high indicator that the TRIPs agreement characterized as hard law.

La regulación jurídica de las violaciones graves de obligaciones esenciales emanadas de normas imperativas del Derecho internacional general en el Proyecto de Artículos de la CDI

Con la adopción final del proyecto de 2001 de la Comisión de Derecho Internacional, se ha concluido uno de los proyectos más contestados y polémicos en el ámbito del derecho internacional: la elaboración de un proyecto de artículos sobre la responsabilidad de los Estados. Tras 50 años de duro trabajo para definir qué constituyen las violaciones graves de normas de importancia fundamental para la comunidad internacional en su conjunto y sustituir a la figura del Crimen Internacional, el texto fue adoptado, no sin diversas limitaciones como la ausencia de regulación de posibles mecanismos institucionales que doten de garantía y contenido el procedimiento de creación, alcance y contenido de la categoría de normas recogidas en los artículos. Este artículo se divide en dos capítulos principales, el primero define las violaciones graves de obligaciones esenciales emanadas de normas imperativas de derecho internacional general, y el segundo especifica el establecimiento de obligaciones y las posibles consecuencias jurídicas de violaciones graves.Publicación en línea: 11 diciembre 2017

Principles and conditions for the application of countermeasures in the contemporary international law

The article is devoted to the study of the conditions for the use of countermeasures in the contemporary international law. The application of countermeasures is not sufficiently regulated by the written norms of international law and is predominantly non-codified in a customary manner. The type and size of the countermeasures must be proportional to the offense committed, and the use countermeasures may be recognized as lawful only if the injured State or an international organization puts the offender in a position to comply with its obligations and notify of possible countermeasures. The basic principles of the application of countermeasures are the following: countermeasures should apply only to the State which has committed an internationally wrongful act; the unlawful nature of the act must be determined solely on the basis of the norms of international law; the purpose of applying countermeasures is to restore legitimate rights and interests of the victim only; countermeasures should ensure the return to the previous state that existed prior to the commission of an international offense and should not cause irreparable damage; the application of countermeasures is temporary only. The use of countermeasures is permissible only in case of exhaustion by the victim of other parties not connected with the use of means of protection of their rights and should be terminated when the violated right will be restored. Certain international obligations cannot be terminated in the order of application of countermeasures against the offender. These include, in particular, the obligation to refrain from using force or threat of force, an obligation to protect fundamental human rights, humanitarian obligations and other obligations arising from imperative norms of general international law.

Derechos humanos y migraciones: paradojas y reformulaciones en 2017

La protección de los derechos humanos supera al concepto de soberanía estatal, el límite real a la soberanía de los Estados lo impone la dignidad del ser humano, la distinción que el Estado hace sobre quien es un nacional y quien es extranjero, se convierte en un criterio de desigualdad surgiendo una condición de vulnerabilidad de los migrantes. En las sociedades democráticas, es preciso erradicar la discriminación y recordar que el principio de igualdad constituye una norma imperativa de derecho internacional que debe ser cumplida por todos los países, por ello se propone superar el debate en torno al término minoría para centrarse en el pleno respeto y garantía de los derechos de todas las personas que -regular o irregularmente- se encuentran en el territorio de un Estado.

ИНСТИТУТ НЕДЕЙСТВИТЕЛЬНОСТИ ДОГОВОРА В ИТАЛЬЯНСКОМ ПРАВЕ

The problems of regulating the invalidity of contract under the Italian law is dictated by the crisis of the pandect system of the division of irregular contracts into nullity and annullability. In particular, in the Italian doctrine and case-law attempted to add within the pandect system of invalidity of bargains supplement it with new types of irregular contracts, borrowed from the French civil law tradition. The author using comparative method and examines the invalidity of contract under the Italian law. Firstly, the Article deals with the influence of German and French legal regulation of invalidity of contracts on Italian Law. Secondly, the author discusses the difference between nullity (nullita) and annullability (an-nullabilita) of contracts and analyzes the basic concepts of contract law such as causa as the essential term of contract, for the most part, determines the organization of norms on the nullity of the treaty in Italian civil law. Also the Article focus on the public order, imperative norms under Italian contract law. In conclusion of the Article presents general conclusions on the regulation of nullity and annulla-bility under Italian contract law, as well as an overview of convalidation and conversion. The article is oriented to civilists interested in the comparative legal research and the Italian contract law.

THE FAMILY IN CONTEMPORARY LAW

Family law is considered a separate branch in the field of law, which is separated from Civil law mainly because there is a difference in them in regulating the relations. According to this, the relations, according to Family law, are determined by the imperative norms of a country, thus, they are not open to the fulfillment of an individual will and thus an agreement among the subjects in a family relationship. However, this statement has become less credible with time. Its appli-cation has become more frequent in family law in the last 20 years and it has become a general feature of the law in almost every European country, which can be marked as privatization and contractualisation of family law.

Теория корпоративного права и новелла статьи 2 ГК РФ

Analyzed is the novelty contained in Article 2 of the Civil Code of the Russian Federation. It provides for the inclusion of corporate relations into the sphere to be covered by civil law. The author firmly believes that such a novelty has an impact on the fundamental issues of the theory of corporate law, namely, the legal nature of corporate relations and its autonomous content. And it is important to identify corporate law as an independent branch of civil law. The author concludes that it is necessary to distinguish between the basic and derivative corporate relations. The corporate relations are of an absolute nature. In the light of what was stated it becomes evident that the imperative norms do have superiority to regulate corporate relations. The absolute nature of corporate relationship is an objective reason of the peremptory norms regulating corporate relations. It is concluded that the legal structure of a legal person is the most complex phenomenon in civil law. No other legal relationship does not arise with the birth of a new legal entity. It is impossible to differentiate norms, which, on one hand, define the legal status of a legal person, on the other hand - define the content of thus emerged relationship. This construction is the result of said relationship. Legal essence of this legal entity is manifested in respect of participation in legal entity or its management. And this determines the essence of all that relates to the legal status of a legal entity.

Use of English Law in Uzbek Corporate Transactions

Legal practice in the post-soviet union environment in recent years show that a large number of M&A, JV and international financing transactions in Uzbek companies involving foreign entities or foreign investment are governed by laws other than national legislation. Establishment of legal entities are based on contractual agreement of the founders (Memorandum of Association/Shareholders agreement) and Uzbek law provides a relative freedom at the conclusion of the contracts or afterwards through allowing parties to choose the law that will apply to their rights and obligations under the contract. A choice of law upon agreement of the parties is provided by the article 1189, Civil Code of the RUz. However, the foreign law chosen by the parties cannot, in theory, affect the operation of the imperative norms of the legislation, meaning that the minimum requirements set by the legislation should be complied with at all instances.The rigid nature of the national legislation and distrust towards the judicial system of Uzbekistan is the main reason ‘why much legal activity is effectively "offshored" through the use of contracts governed by English law, and disputes being referred to arbitration in London as in every other CIS country. English law, as well as English arbitration courts, often appear in the international transactions, including transactions involving Uzbek entities. English law is widely used around the world because of its clear, well-established character. The British legal system has evolved for over several hundred years and continues to grow and is characterized by flexibility and adaptation to the rapidly changing business environment. This flexible nature is one of the most appealing aspects of English law, which can also confuse those who are not familiar with it. When comparing the English legislation with the European continental system of law or the legal systems of now CIS countries, it is vital to note that English law is not enshrined into a single set of laws.The contractual principles of British law are very clear, concise and flexible to great extent and therefore, permit the parties to agree on whatever terms they may want. Legal provisions, such as warranties, representations, indemnities, put and call options, covenants, drag and tag along options, conditions precedent, good leaver/bad leaver provisions, deadlocks mechanisms and preferential share rights make English law straight-forward, flexible and thus, preferable by foreign investors entering Uzbek market. The ultimate aim of the paper, therefore, will be concentrated on exploration of the peculiar features of English law which make it lucrative to companies in Uzbekistan when carrying out transactions and analysing whether the same or similar concepts can be included in Uzbek contracts. Through examining the existing national legislation and making cross jurisdiction comparison with the English law concepts the paper will make an attempt to put forward recommendations for wider research in the area to make Uzbek law preferable by foreign investors. The subject research work has been divided in five major chapters and further divided into various sub topics. The first chapter provides brief introduction to the concepts of JV and M&A, discusses the differences and highlights their relevance to the current topic. The second chapter of this work attempts to briefly overview some main English contract law concepts. The third chapter deals with foreign investment environment in Uzbekistan, advantages of investing into the country and popular forms of ownership of legal entities. The fourth chapter of this research work is an endeavour to find the link between contractual relationship of the parties and memorandum of association. The final chapter before the conclusion, carefully analyses Uzbek legislation for provisions permitting inclusion of English Contract law provisions in memorandum of association. And, finally, the sixth chapter of this dissertation gives conclusion of the research work.

Conditions for exercising shareholders' right to ask questions

Law on Business Organizations from 2011 has significantly improved the regulation of shareholders' right to ask questions in Serbia. In contrast to the previous law from 2004, that has completely transferred regulation to companies which is why there was no guarantee for exercising this right, new law contains detailed norms in this respect. They are written under the dominant influence of German law and are completely harmonized with the Shareholders' Rights Directive. All important issues of shareholders' right to ask questions have been regulated mostly with imperative norms (subject of the right, conditions for exercising this right, debtor of this obligation, court protection, etc.). Corporations have a lot of freedom to adjust exercising this right to their needs, but only by giving more rights to shareholders. Limiting the scope of this right is possible only in certain, precisely defined areas. Although the general impression of the new regulation is very positive, there are certain aspects which can be criticized. Some of them can be cured by adequate judicial interpretation, while others cannot be cured without changes to the law. In the area of conditions for exercising this right, the most important deficiency is the fact that the law has not determined when the right to ask questions can be exercised, and that stands in obvious disharmony with the adopted conception to regulate all important aspects of this right. Contrary to conditions, which basically have been properly formulated, other aspects of legislation regarding this shareholders' right contain more profound obscurities that go beyond the scope of this paper.

CORRELATIONS BETWEEN THE EVOLUTION OF INTERNATIONAL RELATIONS AND PERFECTING THE INTERNATIONAL MEANS OF PROTECTING HUMAN RIGHTS

The evolution of relations between states made necessary the establishment, at aninternational level, of certain behavioural regulations and fundamental principles, whoseviolation may cause prejudices to the collaboration relationships developed among states.Thus, over time these were consecrated by customary rules, treaties or other internationalconventions, imperative norms of conduct, which are strictly imposed to all partners atinternational juridical relations1.Moreover, international norms which aim at respecting the fundamental human rightsand liberties were adopted, thus contributing to the defense of the universal values ofhumanity.

Something from Nothing:

The relentless negations in these lines—denials of action, thought, being, and feeling—emphasize the narrator’s lack of productive intellectual or social influence and his emotional void. Yet “nothing” takes on an allegorical force as it “cometh or gooth” and as the narrator describes his “felyng in nothyng.” This allegory illogically suggests that the Dreamer finds something—a feeling—in nothing, a paradoxical notion that anticipates a deep