International Case Law Research Articles

Integration of legal databases in the context of EU accession aspirations

It is determined that the process of cooperation within the framework of the European Union has increased the need for identification and exchange of legal information coming from regional and national authorities at the European level. This need is partially met by digitally accessible legal information and the widespread use of the Internet. However, the exchange of legal information is largely limited by the differences that exist in different national legal systems, as well as the differences in their technical systems used to store and display the law on their respective websites. This hinders interaction between the information systems of national and European institutions, despite the increase in the availability of documents in electronic format. At the same time, the interconnection of national and international legal information from various sources and their presentation in the form of linked data of legal knowledge will undoubtedly improve the process of searching for legal information, expanding the possibilities of inquiries that are not currently possible. Moreover, in an increasingly digital society, where the number of cross-border civil and criminal proceedings is rapidly increasing, and given the complex diversity of different legal systems in the EU Member States, the simplification and facilitation of cross-border judicial cooperation is essential to ensure effective access of citizens and businesses to justice. At the same time, the system of identification and metadata should be well known to citizens and specialists in the field of law. In addition, to increase the chances of finding case law that is supported by an identifier and metadata, these court decisions should be searchable - by identifier and a minimal set of metadata - through a common interface. The exchange of digital evidence in the EU is also an important aspect. Currently, countries cooperate using private international law in cross-border criminal cases and exchange digital evidence based on these tools. The choice of tool depends on the countries involved and the type of information required.

Formulation of contextual circumstances in final court decisions on cases of violation of the laws and customs of war: peculiarities of legal argumentation

The article analyzes the peculiarities of legal reasoning in final court decisions in cases of violation of the laws and customs of war (Article 438 of the Criminal Code of Ukraine) in the context of such contextual circumstances as the existence of an international armed conflict during which and in connection with which the relevant war crime is committed. The author identifies the following shortcomings in the wording of contextual circumstances in sentences under Article 438 of the Criminal Code of Ukraine: an extensive historical excursion into the historical past of our State and world organizations, as well as the lack of a clear definition of such contextual circumstances. The author proves that in addition to the direct establishment of such circumstances, final court decisions should state the existence of a relevant victim, object and subject of a war crime, which are elements of the mechanism for determining contextual circumstances, as well as independent signs of the crime under Article 438 of the Criminal Code of Ukraine. It is determined that the legal arguments used in final court decisions should include a brief description of the factual and temporal factors of the international armed conflict on the territory of Ukraine, which take place in the country as a whole, as well as the local aspect of the international armed conflict, the existence of which is proved by the occupation of the Ukrainian settlement where the war crime event took place. In addition, when describing the contextual circumstances of the crime under Art. 438 of the Criminal Code of Ukraine, it is advisable to refer to international normative documents and international case law. It is determined that a complete description of the contextual circumstances will ensure the «stability» of court decisions in the courts of appeal, which may be appealed by the defense party arguing that there are no relevant contextual circumstances, which, in the opinion of the defense, indicates that an ordinary crime was committed, rather than a war crime. Key words: war crime, violation of the laws or customs of war, contextual circumstances, international armed conflict, criminal proceedings, international humanitarian law, final judgment, quality of judgment, legal technique, legal reasoning.

The Idea of Implementing Spiliada Principle for Indonesian Court in Hearing Private International Law Cases

The Idea of Implementing Spiliada Principle for Indonesian Court in Hearing Private International Law Cases

The Application of the Original Teaching Method of Bilingual Course Cases in the Perspective of Cultivating Foreigner Legal Talents

Since the Fourth Plenary Session of the 18th Central Committee of the Communist Party of China, the Party Central Committee with Xi Jinping as the core has repeatedly emphasized the need to strengthen the training of foreign-related legal talents. In this context, the importance of bilingual legal courses has become more prominent. To effectively improve teaching effectiveness, the case based original text teaching method should be introduced. The original case texts include international law case texts and country law case texts from important countries or regions such as the United States and the European Union; When teaching, the method of intensive reading should be adopted, under the careful organization of the teacher ,which is to achieve a one-stop acquisition of legal professional knowledge and language skills through three processes: preview in advance, intensive classroom teaching, and reinforcement after class. This teaching method integrates the acquisition of substantive law knowledge, procedural law knowledge, and other disciplinary background knowledge.

Redefining International Law Paradigms: Charting Cybersecurity, Trade, and Investment Trajectories within Global Legal Boundaries

Abstract This paper critically examines the evolving intersections of cybersecurity, trade, and investment within the framework of international law, thereby seeking to redefine its normative paradigms. The article adopts a multidisciplinary approach, integrating legal theory, international relations, and cyber law to analyze how digital security issues intersect with global economic transactions. Utilizing doctrinal legal analysis, the article delves into international treaties, case law, and policy documents, while a comparative method highlights variances and similarities across jurisdictions. The article identifies significant gaps in existing international legal frameworks that are ill-equipped to address the complexities and nuances of the digital age. It advocates for comprehensive legal reforms, encompassing cyber warfare, digital trade, and cross-border investments. The objective is to align international law with the digital era’s realities, effectively balancing national security, economic growth, and individual rights in a globally interconnected environment. This article not only uncovers critical shortcomings in current legal structures but also proposes forward-looking legal strategies, essential for tackling emerging challenges at the cybersecurity, trade, and investment nexus. These strategies chart a course towards a more resilient and adaptive international legal system, equipped to address the multifaceted issues arising from the digital era’s convergence.

Rule of Law and Human Rights: Analysis of International Standards and Case Law

The EU's human rights policies and actions have two main components: protecting the fundamental rights of EU citizens and promoting human rights around the world. One of the aspects that the UN focuses on is the relationship between democracy and human rights, as the organisation upholds the importance of equal political participation of citizens of its states and full respect for human rights, including the recognition, protection and promotion. As defined by the United Nations International Children's Emergency Fund (UNICEF), human rights are norms that recognise and protect the dignity of all people, meaning they apply to everyone, without distinction of race, gender, education, political opinion, sexual orientation or any other type of moral judgement. The realisation of human rights also obliges states to be responsible for protecting these norms and prohibits certain acts that violate them. Human rights can be said to be one of the greatest achievements of mankind. One of the most important human rights documents is the Universal Declaration of Human Rights, signed in 1948 at the UN General Assembly. Consisting of 30 articles, the Declaration formalises all the theoretical developments made earlier on civil, political, social, economic and cultural rights. Another innovation of the Declaration was the inclusion of human rights in the universal character, becoming the rights of all peoples. Thus, for the UN, human rights "are universal legal guarantees that protect individuals and groups from acts and omissions by governments that violate human dignity"3. Human rights are fundamental and therefore inalienable human rights, i.e. those rights whose violation would lead to an attack on the very essence of humanity. For this reason, it is important that everyone is aware of and knows about human rights, their content and the forms of protection provided for them, as everyone should be able to enjoy their fundamental rights for the sole purpose of living in peace, without distinction. Human rights, democracy and the rule of law create an environment in which countries can promote development, protect people from discrimination and ensure equal access to justice for all.

HUMAN DIGNITY, MORAL DAMAGE, AND KILLINGS BY AUTONOMOUS WEAPONS SYSTEMS

The present article aims to discuss if the fact that Lethal Autonomous Weapons Systems (LAWS) killed or injured a person generates moral damage, and if there is a presumption of moral damage, being unnecessary for the plaintiff to prove the moral suffering to be entitled to reparation from the State. First, the article defines LAWS and provides a brief perspective on moral damage in international law based on the International Law Commission´s Draft Articles on State Responsibility and scholarship. Next, it discusses if LAWS killings or injuries violate the principle of human dignity. Then it highlights international case-law from the international human rights courts on moral damage in re ipsa. The article concludes that LAWS's killings or injuries generate a relative presumption of moral damage.

Mitior lex in national and international case-law – (second-hand) fundamental principle of criminal law?

Several recent rulings by the Court of Justice of the European Union, the Romanian Constitutional Court and the High Court of Cassation and Justice raise the issue of the supremacy/primacy of European Union law over national law, especially with regard to criminal or constitutional provisions in respect to mitior lex principle and its influence over criminal responsibility towards crimes against the financial interests of the European Union. The national courts supported the view that the legality and mitior lex principles constitute fundamental principles of constitutional law and also criminal law, barring, when applicable, prosecution irrespective of crime. However, the European Court ruled that limitation period has no connection whatsoever with these principles at EU level and as national standards, only the legality principle outweighs the effectiveness of criminal law measures in combating fraud against the financial interests of the European Union, while the mitior lex principle, despite being recognised as a fundamental principle stemming from the common traditions of Member States and also the Charter of Fundamental Rights of the European Union, falls short in comparison. In the following we will analyse the evolution of the problem, but also possible solutions.

Analysis of Public International Law Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua V. United States of America, International)

Analysis of Public International Law Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua V. United States of America, International)

The Expropriation Provision in the Investment Protection Agreement Between Vietnam and the European Union

Provisions on expropriation of investors' property rights are intended to protect foreign investors by establishing standards and conditions for acts of interference in property ownership of the receiving country. By international practice, this provision is indispensable in international investment agreements and becomes clearer through international investment case law. The Investment Protection Agreement between Vietnam and the European Union (EVIPA) is built to reflect the standard criteria for protecting investors' interests in case of expropriation of property but also creates specific commitments in accordance with Vietnamese law practice.

Use of digital evidence in criminal process: some issues of right to privacy protection

The rapid development of digital technologies makes life easier in many ways. One of these advantages is the ability to use digital evidence in criminal proceedings. At the same time, this gives rise to new challenges in protecting the right to privacy, since digital evidence often contains a large amount of personal information. Thus, the author of the article aims at exploring the issues of balance between the use of digital evidence in criminal justice and the protection of the right to privacy.
 The research methodology includes an analysis of scientific publications, current legal provisions, case law, and international standards. The author of the article emphasizes that, on the one hand, the legislation operates with the concept of “digital evidence” and emphasizes the possibility of its use. On the other hand, the norms of international law and Ukrainian legislation determine the need to respect the right of every person to privacy. This raises the issue of combining these two phenomena.
 An analysis of the ECtHR case law has shown that this issue is important. The Court does not consider digital evidence, the acquisition of which has led to a violation of the right to privacy, to be legitimate. Based on the analysis of the case law, the author emphasizes the critical importance of the right to privacy as a basic human right that should be upheld even during a criminal investigation.
 The results indicate the need for clear legislative regulation of the use of digital evidence, ensuring its proportionality, and the need to take into account the right to privacy as a fundamental right. The conclusions of the article emphasize the importance of international standards and case law in shaping approaches to the use of digital evidence, with a particular focus on the protection of the right to privacy in the context of criminal justice. The author also proposes a number of approaches that can ensure the lawful and appropriate use of digital evidence.

Certainty of Divorce Laws in Different Countries Based on Indonesian International Civil Law

International divorce cases involving spouses from different nationalities present complex challenges that necessitate a solid grasp of private international law principles. The divorce process in Indonesia, particularly for couples with different nationalities, requires adherence to national legal regulations and applicable laws. International treaties, notably the Convention on the Civil Aspects of International Divorce, provide a uniform legal framework for addressing such cases. Recognizing and enforcing foreign divorce judgments across jurisdictions is vital to prevent multiple divorces and ensure legal certainty, necessitating coordination between countries. Child protection takes center stage in interstate divorce cases, emphasizing jurisdictional determination and the proper application of the law to safeguard the child's best interests. This research, using normative juridical methods, explores the application of international private law in inter-state divorce cases in Indonesia, shedding light on legal complexities and contributing to a deeper understanding of legal certainty. In essence, addressing interstate divorce issues involves considerations of jurisdiction, choice of law, recognition, and the protection of children's rights, making a profound understanding of international private law increasingly crucial in the context of marriages and divorces across different countries amid rising human mobility and globalization

“Inter Arma Silent Musae”. Destroying Museums, Historical Buildings, and Monuments during the War in the Ukraine as War Crimes within the Meaning of International Law

The article summarizes the situation related to the armed conflict in Ukraine in the context of the destruction of monuments and cultural objects as a war crime. The considerations relate to the provisions of international and European law, as well as to the positions developed by international case law. The stands of the international organization and community alongside the bodies of the European Union have been indicated. Poland’s efforts to help Ukrainian monuments are also discussed. Reference is made to the activities of the Center for Cultural Assistance in Ukraine established in Poland, within the structure of the National Heritage Institute and the Committee for Assistance to Museums of Ukraine.

International legal cases enhancing the scope of environmental protection

International jurisprudence has a crucial role in the development of international environmental law. There is a close relationship between legal cases and environmental protection in international environmental law. Legal cases address contemporary problems and include new legal principles and rules of international law that can develop the scope (principles, structures and implementation) of environmental protection. In this perspective, judgments, advisory opinions and decisions of the international courts and tribunals, especially the International Court of Justice, have shown that State sovereignty has always been a limitation of the global expansion of environmental protection scope. Moving from absolute State sovereignty to the rule-based equitable and reasonable use of land could be an excellent opportunity to develop this legal field. Environmental protection emerged in the Trail Smelter case of 1941 as an earlier environmental dispute which resulted in the development of the environmental protection concept in other legal cases. Based on selected cases in international environmental law, the research attempts to analyze three stages of the emergence, enhancement and evolution of the environmental protection principle.

The Significance of State Practises in Enforcing the Principle of Effectiveness in Claims of Territorial Ownership

The state can obtain rights to a territory through various means of ownership, including prescription, accretion, cession, conquest, and occupation, as long as it can effectively control (occupation) the territory with long-lasting control (practical work). The Sipadan and Ligitan Islands dispute is Indonesia's first experience with the concept of effectivity. Effective control over an area dramatically influences the claim to ownership. Several countries claim land ownership based on ratio decidendi analysis of international court decisions. The Research method in this writing uses normative juridical analysis also known as the library research method. The author chose this approach because the analysis results will be discussed and explained concerning international law case studies. This research aims to analyze and describe the Role of State Practices in Implementing the Principle of Effectiveness towards Claims of Territorial Ownership.

Protection of People at Sea under International Law: Lesson Learnt from Pushback Action to boat people in Indonesia and Malaysia

People at sea, one of which is the Boat People, has become a problem not only for Europeans but also in Southeast Asia with increasing asylum seekers from Rohingya and migrants from Bangladesh. Southeast Asia is already facing the problem of boat people returning from the Vietnam Asylum. However, an old story becomes a new story that never ends in Southeast Asia when the strategist state to Sanctuary did not participate in the 1951 Geneva Convention. As a result, many people faced pushback and died or lost at sea. This research will discuss the extent to which “protection of persons at sea” and the “search and rescue” can cover the protection of boat people under UNCLOS 1982. This study also analyses how UNCLOS 1982 will work to protect boat people when states protect themselves with the "non-party Geneva Convention 1951". Researchers argued that protection for people at sea, and the of search and rescue cover all dangerous situations faced by all people at sea, even if they are asylum seekers or boat people. They must first be protected from danger at sea, brought ashore, and the territorial state can exercise judgment on them. The "non-state party" has become a shield for Indonesia, and Malaysia to reject boat people and even push boat people back from their territory. However, the two countries are part of the UNCLOS 1982 with the obligation to carry out search, rescue, and protect humans at sea. As a result, they must rescue them and bring them ashore first before they are deported or pushed back from their boats. To investigate the relationship between the protected “protection of persons at sea” and the “search and rescue” and boat people, this paper seeks to assess UNCLOS 1982, customary international law and related cases.

Rethinking Gender Recognition in Hong Kong and the Way Forward

This article considers Hong Kong’s (“HK”) current approach in requiring trans to undergo full sex-reassignment surgery (“SRS”) before they can change their gender indicated on their Hong Kong identity cards. Through reflecting upon international and comparative case law, this article first examines how HK’s current approach confers limited protection towards trans’ fundamental rights as against foreign jurisdictions. This article then examines whether the United Kingdom’s (“UK”) Gender Recognition Act 2004 (“GRA”), which was described as a “compelling” model by the Hong Kong Court of Final Appeal, confers a higher degree of protection towards trans people. This article concludes by advocating for the elimination of the full SRS requirement as a prerequisite for gender recognition in HK.

Korean Judicial Decisions

Abstract This paper reviews five selected major decisions by domestic courts of Korea from the second half of 2022 to the first half of 2023 by taking a closer look at the changing legal practices and attitudes of the Korean judiciary in applying international law in domestic cases.

The Relationship Between Public International Law And Domestic Law In The International Perspective and the Effects on it due to Globalization

This research, titled "The Relationship between Public International Law and Domestic law in the Perspective of Treaties and International Caselaw and the Effects of Globalization - Analytical Study-" tries to highlight the relationship between public international law and domestic law from the point of view of international treaties and international caselaw, through the judgments of international arbitration, Permanent Court of International Justice and the International Court of Justice, as well as the positions of international criminal tribunals, and it examines the changes in this relationship as a result of the effects of globalization.
 Through this endeavor, it was concluded that the position of international treaties has been and continues to prevail over domestic laws when there is a conflict or collision between their rules, and along with international legal provisions, there is an abundant caselaw that have supported the position of international treaties in this regard. Moreover, globalization has affected the relationship between public international law and domestic law by trying to unify international legal rules and domestic laws, and then work to build a unified legal block that is not assigned to a specific geographical spot.

The Interplay between the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Domestic Violence

When a mother commits an international child abduction, even if she is fleeing domestic violence perpetrated by the left-behind father, she is bound to face complicated return proceedings under the 1980 Hague Child Abduction Convention. Such mothers are particularly vulnerable; apart from the costly, cross-border proceedings they face, if the court issues a return order, they risk returning to the abusive setting they fled from. This article explores avenues for safeguarding the protection of abducting mothers in return proceedings. The authors provide a range of potential avenues for improving the standing of the abducting mother fleeing domestic violence, including judicial and legislative interventions. The article delves deeper by considering the interplay between international child abduction law and international refugee law in cases involving domestic violence allegations. Particular emphasis is given to Article 20 and the growing instances of mothers defending return orders on asylum grounds pursuant to Article 20 and the flowing human rights implications. The authors point out a niche area for further research: the interplay between domestic violence and asylum claims.