International Doctrine Research Articles

The OSCE Parliamentary Assembly and peaceful conflict resolution: international legal and political analysis

The study was focused on examining the legal status of the OSCE Parliamentary Assembly and determining its role in international relations within the OSCE region. The fact that this body is not part of the OSCE’s intergovernmental system, but is an independent international entity actively involved in international affairs, gives this research a specific scientific nuance and significance. There are few scientific studies in the international doctrine dedicated to this topic, especially with an emphasis on its international legal issues. One of the OSCE Parliamentary Assembly’s priority areas is promoting peaceful conflict resolution through parliamentary diplomacy. However, parliamentary diplomacy, unlike traditional diplomacy, possesses unique characteristics and comparatively fewer opportunities for resolving serious international problems. Nevertheless, by enhancing the connectivity of the OSCE PA with the OSCE’s intergovernmental bodies through the efforts of parliamentarians in this direction, in our opinion, it will be possible to significantly increase the OSCE PA’s role in peaceful conflict resolution. The fact that parliamentarians are members of the legislative body and consequently participate in discussions and enactment of laws predetermines their role as qualified individuals who potentially can play a more significant role in the development of international law compared to professional diplomats. Thus, the goal of this study is to explore the potential of the OSCE Parliamentary Assembly in peacefully resolving conflicts from the perspective of international law and international politics, and to identify negative factors that hinder the more productive activity of this parliamentary body. According to the research findings, the activities of parliamentarians within the OSCE PA can bring considerable benefits not only for the peaceful resolution of specific conflicts but also for the entire OSCE dispute settlement system through the development of carefully considered projects of international legal documents in this area.

Indian Constitutional Perspective of Environmental Justice: an Analytical Study with Reference to PIL and Precedents

The problem of environmental pollution has assumed massive and grave proportions over the decades. It has been left to the courts in India to go behind the letter of the law into the spirit of the law to find out the plausible solutions for the problem though evolution of the law of public nuisance into environmental law. Though the implementation of statutory provisions, as also by embracing various international doctrines, the Supreme Court of India as well as various High Courts have tried time and again to develop environment-friendly justice in India through the recognition of the principle of Sustainable Development. However, the actions of the judiciary had been under attacks from other organs of the State alleging that the judiciary is transgressing its boundaries and stepping into the realms of the executive and the legislature. This paper is an effort to trace the environmental justice in India and to find out whether judicial activism can actually lead to sustainable development.

Resolution of investment conflicts between the state and foreign companies in the context of crisis prevention

Currently, there are no conditions in Ukraine to ensure a high-quality business climate that would guarantee the security of investments. In the past, this has already led to conflict situations, which has resulted in a number of cases being brought against the state. The purpose of the study is to investigate the mechanism of resolving investment conflicts between the state and foreign companies. For this task, such methods as formal legal, dogmatic, legal hermeneutics, logical analysis, deduction, induction, and others were used. In the course of the study, an analysis of the international doctrine that regulates the provisions for resolving investment disputes, namely, the Washington Convention and the Seoul Convention, was carried out. It is determined that the number of foreign direct investments in Ukraine from 2012 to 2023 significantly decreased, and the investment attractiveness index reached a critically low value over the years, which indicates a negative attitude of business to current conditions. It is indicated that as a result, 15 proceedings were initiated at the International Centre for Settlement of Investment Disputes. It is revealed that in these cases, violations such as failure to provide equal and fair treatment are most often reported. Based on this, the need to improve the investment climate in Ukraine is determined. It is proposed to reduce the cost of access to the protection system for small and medium-sized enterprises; reduce the time for dispute resolution; and ensure the consistency and accuracy of arbitration decisions. The practical value of the results obtained is that the implementation of the recommendations provided will help to attract foreign investment necessary for the recovery and development of the country’s economy, and will also eliminate the problematic factors that lead to the opening of proceedings against the state

ECHR Reform: Entry into Force of Protocols 15 and 16

Whereas the application of the European Convention on the Human Rights is made through the European Court of Human Rights, whose decisions are the creator of law, meanings, interpretations, clarifications on everything that means the system of protection of the human rights through the ECHR, the jurisprudence of the Court frequently meets the practical requirements for the application of the Convention. However, certain procedural elements in the application of the Convention cannot be left to the discretion of the Court's decisions, due to their strictly procedural nature, and in some cases there is a need to enrich the Convention with a number of fundamental provisions beyond the court’s creative power of practice. That is why the adoption of the Additional Protocols to the Convention always attracts a keen interest from stakeholders, and among these, the Additional Protocols no. 15 and 16 have attracted lively debates in international doctrine, due to the importance of amendments (or clarifications) to the Convention.

Analisis Legitimasi Campur Tangan Kemanusiaan: Sorotan Terhadap Prinsip-Prinsip Asas Undang-Undang Antarabangsa

This article discusses the legitimacy of humanitarian intervention as an international doctrine that has often provoked debate among international legal thinkers. It is a controversial concept in international relations because considered violated the basic provisions and principles of international law enshrined in the Charter of the United Nations (UN), namely the principle of sovereignty, the principle of non-intervention and the principle of non-use of force. However, the results of the analysis found that humanitarian intervention is in fact not contrary to those basic principles and even has a strong enough legitimacy to be implement. Thus, this article attempts to reveal and refute the arguments put forward by critics regarding the legitimacy of humanitarian intervention by bringing a qualitative descriptive analysis along with textual interpretation to evaluate and interpret the relevant legal text in detail.

The legal nature of evidence in the international doctrine of constitutional law

The article is devoted to relevant, but understudied issues related to the formation of the evidence base in the doctrine of constitutional law. Legitimation of the constitutional process by evidence can be successful regardless of the goal preferred by the subjects of the constitution. If constitutional design prioritizes the goal of substantive legitimacy, it legitimizes the broad powers of the constitutional judge through the need to maximize the evidence gathered. If, on the contrary, the constitutional design gives priority to the goal of procedural legitimacy, it legitimizes the function of the constitutional judge through the development of a fair procedure of proof. In this way, the outcome of the trial can more easily gain the approval of the community and strengthen confidence in the functioning of constitutional justice. The fundamental right to evidence is constitutionally protected to the extent that it is implicit in the right to due process. The author pays special attention to the definition of the content of the concept of proof in the constitutional judicial process based on the analysis of the norms of international constitutional law, which are characterized by the presence of a set of certain methods of cognition, that is, scientifically determined and practically tested rational methods or a system of methods of obtaining the necessary amount of knowledge for making an objective and well-founded decision. Evidence in a judicial constitutional process should be understood as a certain process of learning by the subjects of this process — judges and the apparatus of constitutional jurisdiction as a whole, which is implemented as the collection, verification and evaluation of evidence. In this extremely complex intellectual process, proof plays an important role as a logical action during which the truth of an opinion or position is substantiated and established.
 As a result of working on this topic, the author investigated and highlighted two discourses on procedural legitimation. In the first case, legitimization is the result of a test procedure check that takes place before an ordinary judge. In the second case, legitimation is the result of the absence of a complex procedure of proof before a constitutional judge.

El habeas corpus frente a la realidad del sistema penitenciario en el Ecuador

The present work has as general objective: To analyze the practical application of the jurisdictional guarantee of habeas corpus in Ecuador, based on the legally conceived parameters, both in the Constitution of the Republic, and in the Organic Law of Jurisdictional Guarantees and Constitutional Control. For this, the concept of personal freedom will be identified, which will help the development of the corresponding sub-topics, the conceptions given by the international doctrine are also analyzed, which will be very helpful to be able to compare with the national doctrine and then verify if the cases that have been resolved by the Inter-American Court of Human Rights in Ecuador, have issued their resolutions in coherence with the legally established content and the conception that exists about what habeas corpus is. The work contains specific cases of the national territory where habeas corpus was applied, and it is verified if the cases raised do not have any anomaly or circumstance that could cause them to fall into violations of the precepts established by law. The research approach used is qualitative, based on methods such as historical-logical, analytical-synthetic and inductive.

The Rohingya Crisis: A Critical Analysis of the United Nations Security Council and International Human Rights Law

This essay reviews the human rights violations against the Rohingya people in 2017 and assesses the effectiveness of accountability under the United Nations Security Council (UNSC). It is concluded that under the principles of ethics and integrity in international law and human rights law, there should have been investigations into the crimes committed against Rohingya Muslims in accordance with the judgement given by the ICC's Pre-Trial Chamber. The essay underlines the fundamental principles of ethics and integrity in international law and human rights law. The principles of ethics and integrity in international law should have allowed the UNSC to act in accordance with the international doctrine of human rights. It is concluded that the UNSC's failure to carry out its obligations was solely due to Russia's political ties with Myanmar, which also resulted in Russia using its veto power and obstructing the UNSC's statement on the situation. The banal approach to the implementation and enforcement of international law and human rights has paralysed the principle of ethics and integrity. In this light, the essay affirms there is a need to create a better framework to resolve issues such as the Rohingya genocide and the Russian invasion of Ukraine and any complications that may arise in the future. It is suggested that in addition to the United Nations Assembly and the UNSC, there is a need to create a conflict management body within these two settings. Keywords: Accountability; Genocide; Human Dignity; Human Rights Law; Human Rights Violations; International law; Rohingyal; Russia; States; Ukraine; United National General Assembly; United National Security Council;

The International Responsibility of the Holy See for Human Rights Violations

In recent years, the Holy See has been accused of violating its human rights obligations because of acts of sex abuse by the Catholic clergy. Such accusations are based, in various ways, on the authority of the Holy See over the clergy. The Holy See is often referred to as a state and its obligations as state obligations. UN treaty bodies understand that the human rights obligations of the Holy See, as a treaty party, are of a legal––not moral––nature and apply extraterritorially, i.e., beyond the territory of the Vatican City State. The notion of state jurisdiction is, therefore, applied to the Holy See in the same way as to any other state. UN treaty bodies implicitly conclude that, for the purpose of human rights responsibility, the crimes of the clergy must be attributed to the Holy See and that anyone under the religious authority of the Holy See is under its state jurisdiction. However, a closer examination of the nature of the Holy See and its authority under international law, church doctrine, and church law paints a more complex and nuanced picture, where it is hard to describe the clergy as state organs or religious authority as state jurisdiction. Still, there are reasons to understand that certain acts and omissions of the Holy See in the context of the sex abuse crisis can be characterized as violations of its positive obligations of conduct.

La metamorfosis del federalismo mexicano. ¿Hacia un federalismo asimétrico?

The international doctrine has agreed that federalism cannot be immutable, however, in Mexico, it is conceived as an irreformable constitutional principle, which has made it very difficult to adapt it to the needs of the country. Although federalism has mutated from dual federalism to national federalism, this has always been considered an attack on the federal principles of free and sovereign states and municipal autonomy. The polarization of the country makes it necessary to rethink the system of distribution of competencies, perhaps towards an asymmetrical model, where differentiated rules are established according to the different realities of the country.

Medical malpractice system in the Republic of Moldova

In this paper is discussed medical malpractice management system from the Republic of Moldova. In the Republic of Moldova is adopted the “fault system” which represents a tort litigation system. The Moldovan medical malpractice management system is analyzed from legal and normative framework, institutional framework, administrative issues, deterrence, fi nancing, compensation, costs occur to parties involved in malpractice cases, error reporting, etc. The Moldovan tort liability system is a “social insurance of a market society” where patients are compensated when the negligence of the healthcare providers is proved to be the cause of the injury. The results of the medical malpractice management system assessment demonstrated deficiencies in system organization and functioning, namely: lack of specifi c legislation to defi ne and regulate medical malpractice and medical civil liability, the concept of medical malpractice does not meet the requirements and standards of international doctrine, the approach of medical civil liability is incoherent from theoretical point of view and in consequence from the practical one, compulsoriness to follow the judicial track in order to establish medical malpractice and obtain compensation, existence of enormous fi nancial risks for the health care providers in the conditions of absence of medical malpractice insurance, lack of monitoring and evaluation system of medical errors.

Armstrong's Resource-Egalitarianism Theory and Attachment

The paper analyses the interrelationship between Armstrong’s egalitarian theory and his treatment of the ‘attachment theory’ of resources, which is the dominant rival theory of resources that his theory is pitched against. On Armstrong’s theory, egalitarianism operates as a default position, from which special claims would need to be justified, but he also claims to be able to incorporate 'attachment' into his theory. The general question explored in the paper is the extent to which ‘attachment’ claims can be ‘married’ to an egalitarian theory. The more specific argument is that a properly constrained attachment theory is more plausible than Armstrong’s egalitarian theory. It also criticizes attachment and improvement accounts as justifying permanent sovereignty over resources. The paper argues that neither of those arguments aim to justify the international doctrine of permanent sovereignty.

How do ESG pillars impact firms’ marketing performance? A configurational analysis in the pharmaceutical sector

PurposeThis study aims to contribute to international doctrine by testing how environmental social governance (ESG) pillars can affect marketing performance in the pharmaceutical industry.Design/methodology/approachThe authors follow a pioneering approach, using a fuzzy-set qualitative comparative analysis and data from the largest European listed companies belonging to the pharmaceutical industry in 2019. Specifically, the authors contribute to international doctrine by testing how ESG pillars can affect marketing performance by presenting two configurational paths that may help to clarify not only the individual role of the pillars but also how their interrelationships predict marketing performance.FindingsThe results identify two different causal configurations that lead to higher marketing performance. These configurations allow us to think more carefully about the role of ESG pillars in the pharmaceutical sector. These results could help managers reflect upon and justify their choice to invest in specific ESG pillars, highlighting the importance of the governance pillar.Originality/valueTo the best of the authors’ knowledge, this study is the first to use configurational analysis to investigate combinations of ESG pillars that lead firms to achieve higher levels of marketing performance.

СПІВВІДНОШЕННЯ ПОНЯТЬ ПРАВОВИЙ ЗАХИСТ ТА ОХОРОНА ПРАВА У НАУКОВОМУ ДИСКУРСІ

The article addresses the understanding of the legal categories "legal protection" and "protection of rights". The legal nature and content of these definitions are analyzed. Particular attention is paid to the characteristics of these definitions in scientific international and domestic doctrines. The positions of five different scientific schools on the understanding of these concepts are considered. The first cohort of scientists adheres to the views according to which such definitions are analyzed as interaction of whole and part. The second group of scholars identifies the concepts of "legal protection" and "protection of rights". The third point of view on the specified theoretical problems, consists of the delimitation of the outlined definitions. The fourth constellation of scholars reveals the analyzed categories through the prism of individual branches of law, taking into account the subject and method of legal regulation of each area. The universal approach distinguishes between the concepts of "legal protection" and "protection of rights" and considers them as different, but at the same time absolutely full-fledged legal categories. It is substantiated that the latter has normative and applied significance and is effectively used by the international community both at the doctrinal and legislative levels. On the basis of the conducted theoretical research the independent scientific conclusions and judgments on the analyzed subjects are offered, in particular the author's definition of definition "legal protection" is given. In addition, the main features inherent in the above categories are highlighted. Particular attention is paid to the need of highlighting the preventive component of the concept of "legal protection", which is particularly important within this category.

The International Law of Colonialism in East Africa: Germany, England, and the Doctrine of Discovery

The non-European, non-Christian world was colonized under international law that is known today as the Doctrine of Discovery. This common-law international Doctrine was codified into European international law at the Berlin Conference of 1884-85 and in the Berlin Act of 1885 specifically to partition and colonize Africa. Thirteen European countries and the United States attended the four month Conference and then thirteen countries signed the Berlin Act on February 26, 1885. Under the Discovery Doctrine and the Berlin Act, European countries claimed superior rights over African nations and Indigenous Peoples. When European explorers planted crosses, signed hundreds of treaties, and raised flags in many parts of Africa, they were making legal claims of ownership and domination over the native nations and peoples, and their lands and assets. These claims were justified in the fifteenth and in the nineteenth centuries by racial, ethnocentric, and religious ideas about the alleged superiority of European Christian nations. This Article examines the application of the Doctrine and the Berlin Act by England and Germany in East Africa, the area that now comprises Kenya, Uganda, and Tanzania. This comparative law analysis demonstrates convincingly that the Berlin Act and these colonizing countries applied what we define as the ten elements of the Doctrine of Discovery. These elements had been developed and refined by European legal and political systems since the mid-1400s. Over 400 years later, the Berlin Conference of 1884-85 expressly and implicitly adopted and codified all ten elements to control the European partition and colonization of Africa. Germany and England used this international law to colonize East Africa. Needless to say, European domination, exploitation, and colonization seriously injured the human, property, sovereign, and self-determination rights of Indigenous nations and peoples and still impacts them today. The comparative legal analysis set out in this Article will benefit readers to see more clearly how law affected and directed African colonization, and to develop a better understanding of the international law of colonialism, that historic process, the impacts of colonization, and why this knowledge is of crucial importance to us all.

Applying the Historic Urban Landscape Approach to the Identification of Urban Heritage Attributes of Bangkok Old Town

This article focuses on the study of the Historic Urban Landscape (HUL) approach from current international doctrines and analyses along with urban heritage conservation in Bangkok historic area. The results indicate that the HUL approach helps develop conservation in Thailand from conserving tangible elements as separate objects to conserving and managing tangible and intangible attributes of the entire area by considering holistic values. The approach also helps identify the elements that characterize the area, particularly the character-defining elements of traditional communities, and, furthermore, it offers appropriate means for designing new elements in the area and supports collaborative works among various sectors.

Los actos unilaterales de los Estados como fuente formal del derecho internacional público

The purpose of the work is to make a conceptual delimitation of unilateral acts of States as a source of public international law, based on the historical evolution of its treatment by international doctrine and jurisprudence. From this, the autor make a study about their validity requirements and effects.

INDICATIVOS OU MANDADOS CONSTITUCIONAIS DE CRIMINALIZAÇÃO

O objetivo do presente estudo é demonstrar o atual cenário jurídico penal quanto ao entendimento das teorias que constituem fundamento para a salvaguarda de interesses e valores constitucionais através da força do direito penal, e a escolha de bens jurídicos merecedores de proteção (teoria do bem jurídico-penal), dentro de uma ordem axiológica constitucional que limita a atuação do Estado, e ao mesmo tempo indica pela necessidade de criminalização de novas condutas, ou de se equilibrar as punições em respeito aos princípios constitucionais, especialmente da proporcionalidade, em suas diversas vertentes, e do princípio da vedação do excesso. Na pesquisa foi utilizado o método dedutivo através da pesquisa bibliográfica da doutrina nacional e internacional, realizando uma análise dos conceitos e das teorias que nascem dentro de uma amplitude supranacional, e vêm sendo transpostas substancialmente para as constituições de diversos países, direcionando a atuação do legislador, bem como, influenciando as tomadas de decisões e soluções de conflitos pelo Poder Judiciário, na salvaguarda de interesses comuns, dos direitos e das garantias fundamentais e dos direitos humanos. Nesta direção apresenta-se o entendimento final pela existência de mandados constitucionais de criminalização, e a inexistência de instrumentos jurídicos hábeis para o controle, sobretudo, a correção de omissões legislativas quanto à criminalização de bens jurídicos necessários de proteção.

The distinctive status of international arbitration agreements in English private international law?

Abstract This Case Note critically discusses the Court of Appeal’s recent decision in Enka v Chubb [2020] EWCA Civ 574, where it held that (i) the doctrine of forum non conveniens (FNC) can never apply where an English court is asked to determine if a London arbitration agreement should be enforced by injunction, and that (ii) the ‘separability’ of an arbitration clause from the contract containing it entailed that, absent an express choice of law for it, there was a ‘strong presumption’ that the parties implicitly chose the seat law as its proper law. In doing so, the Court abandoned its previous approach in Sulamérica v Enesa, and indirectly cast doubt on its recent suggestion in Kabab-ji v KFG that ‘implied choices’ of law arguably involved the implication of a term into the arbitration agreement on ‘business efficacy’ grounds. Further, the Court appeared not to acknowledge that, outwith the arbitration context, (i) ‘FNC waiver’ clauses and exclusive jurisdiction agreements do not categorically foreclose FNC, and that (ii) ‘implied choices’ of law should not be casually inferred nowadays. The Court’s analysis in Enka was distinctly arbitration-centric: it was minded to emphasize the non-derogability of the seat courts’ supervisory role, and the ‘separability’ of an arbitration agreement from the contractual document containing it. Enka is an intriguing example of how international arbitration doctrine, particularly as regards arbitration agreements, can materially diverge from cognate principles of private international law. Nevertheless, we question whether international arbitration agreements are truly distinctive enough to justify such differences in treatment. Our assessment is that the answer is probably ‘no’.

The Scope for Competitive Markets under the Existing National, Regional and International Doctrines of Exhaustion of Intellectual Property Rights

This essay argues that, although the International Exhaustion regime provides the greatest scope for market competition among all the regimes of exhaustion of intellectual property rights, unrestricted parallel trade may prove to be harmful in the long run. The Exhaustion principle may promote competition in markets by limiting the control of an IP owner over the resale and distribution of such IP, but the extent of such promotional effect depends on the extent to which the principle applies. The National, Regional, and the International Exhaustion regimes all contain pro-competitive benefits, however, an international regime will obviously provide for maximum market competition due to its larger area of operation. Unrestricted application of such a regime may however give rise to market harm eventually, particularly in the case of pharmaceutical patents, such as restricted market access, price inflation in developing markets, as well as a lack of incentive to innovate.