Laws Research Articles

ЭТНОНАЦИОНАЛЬНАЯ СИТУАЦИЯ ИРАНА: ИДЕОЛОГИЧЕСКИЕ И НАУЧНЫЕ ПОДХОДЫ

The article examines the ethno-national situation in contemporary Iran. The author, presenting a thesis on the existence of ideological and scientific approaches to the issue, analyzes the history, ethnic structure, anthropological and linguistic identity, and, most importantly, the political relationships among Iranian peoples, drawing relevant conclusions. The first section details the attempts by ideologists seeking to exploit the current ethno-national situation in Iran, showing the increasing attention of international and regional organizations, both large and small, from distant and neighboring countries, to national relations and the ethno-national situation in Iran, emphasizing their different approaches to this issue. The multinational nature of the Islamic Republic of Iran is also noted, as well as the fundamental constancy of the state’s national policy and the variations in its manifestations. In the subsequent presentation of the material, the article highlights the unique aspects of internal and external attitudes toward the national situation in Iran and emphasizes that the problem under study, according to specific parameters, is associated not only with internal but also with regional and, to some extent, global security. The article provides a relatively detailed analysis of the works of Iranian authors who adhere to an objective, scientific approach to all issues related to the ethno-national situation in the Islamic Republic of Iran. The study concludes that, alongside the long-standing dominant ideological approach aimed at denying the existence of ethnic structures and national relations, as well as justifying the state policy of creating a nation-state, in recent years, and on a limited scale, the formation of an objective and scientific approach has begun, emphasizing the existence of an ethnic structure, a crisis in national relations, and the need for reform in national policy. The article’s conclusions stress the necessity of adhering to the principles of international law in the area of human rights, including the collective rights of people (ethnic and religious minorities), as well as ensuring the implementation of the rights provided in the relevant articles of Iran’s constitution.

Challenges of Parenting in the Digital Era: A Review from the Perspective of Islamic Family Law

This study examines the challenges of child-rearing within Muslim families in the digital era, focusing specifically on the perspective of Islamic family law. The research addresses Muslim parents' complex issues in adapting Islamic family law principles to parenting practices compatible with digital realities. The study aims to identify significant challenges encountered in digital parenting and to propose relevant legal recommendations to support Muslim families. Using a qualitative approach with data collection techniques such as in-depth interviews, observations, and focus group discussions, the study involved 30 Muslim families, Islamic scholars, and legal experts. The findings reveal that critical challenges include difficulties in the digital supervision of children, low digital literacy among parents, and value conflicts between Islam and digital culture. The study highlights the need for supportive legal adaptations that preserve Islamic character education within the digital context, helping safeguard children's ethics and morals. Effective strategies include balanced surveillance technology aligning with Islamic values and implementing digital use guidelines. The study's implications emphasize the importance of collaboration among legal experts, policymakers, and stakeholders to establish a responsive legal framework addressing digital challenges and supporting Muslim families in integrating child-rearing with religious teachings.

Energy Law Principles or Rather a Functional Approach?

This article addresses the proposition that the introduction of basic principles to energy law can strengthen energy law as a discipline. We discuss this premise from a legal-cultural angle that has often been neglected in this discussion, that of Scandinavian legal realism. We examine what implications a Scandinavian realist approach to energy law would have compared to a principles-based approach. Our aim is not to give a clear conclusion but rather to cast a glance at law from a different point of view. We begin by outlining the discussion surrounding energy law as a discipline, delimiting the potential principles of energy law. We will then move on to outline the Scandinavian realist approach to legal principles, and we will demonstrate how it applies in practice. Finally, we will evaluate the contribution that Scandinavian legal realism can(not) make to the discussion of principles in energy law.

Legal Principles for a European Green Energy Transition

The green energy transition has become a top priority for the European Union (EU) and its Member States. In line with the long-standing recognition of the need for climate change mitigation, recent years have seen a significant intensification of policies promoting this transition. Furthermore, recent global events, such as the pandemic and the Russian invasion of Ukraine, have further influenced EU energy policy. These developments have led to legislative action on many fronts to facilitate the transition towards net-zero, but also to enhance energy security and resilience. This Special Issue focuses on the legal principles governing the European green energy transition, also in the light of major recent developments. This foreword sets the stage by exploring the nature of legal principles in general and by discussing specifics of EU energy law principles. Further, this foreword suggests a differentiation between a) principles that enhance coherence within energy law by reflecting its core values, and b) principles that facilitate the green energy transition by ensuring that legal interpretation aligns with its objectives. Last, the foreword provides an introduction and a brief presentation of the Special Issue articles, which are organized around the abovementioned distinction, and invites readers to explore the articles further.

Perlindungan Hukum Terhadap Kreditor Berkaitan Pembatalan Perjanjian Perdamaian Akibat Perbuatan Melawan Hukum yang dilakukan oleh Debitor Penundaan Kewajiban Pembayaran Utang

This research examines the legal protection provided to creditors when a peace agreement is canceled due to unlawful acts by a debtor during suspension of debt payment obligation proceedings. The suspension of debt payment obligation aims to restructure debt and facilitate a mutually beneficial settlement. However, debtors sometimes engage in unlawful actions involving their assets, harming creditors. One such case is Supreme Court Decision No. 440K/Pdt.Sus-Pailit/2024, where PT. Prowell Energi Indonesia, as the PKPU debtor, caused harm to creditors by nullifying a peace agreement. Using a normative legal methodology with a statutory approach, the study finds that the Bankruptcy and Suspension of Debt Payments Obligation Law provides essential legal protection for creditors whose rights are harmed by debtor misconduct. Preventive protection includes applying bankruptcy law principles such as balance and business continuity, requiring debtors to disclose all relevant information honestly and ensure fair remuneration for the administrator’s services throughout the Bankruptcy and Suspension of Debt Payments Obligation Law process. Additionally, repressive protection within the Bankruptcy and Suspension of Debt Payments Obligation Law stipulates that actions by debtors that harm creditors or display bad faith in asset management may result in the termination of the suspension of debt payment obligation process and a declaration of bankruptcy. This research underscores the role of the Bankruptcy and Suspension of Debt Payments Obligation Law in safeguarding creditors’ rights, enforcing debtor accountability, and ensuring a fair and balanced debt restructuring process.

Criminal law principles should be applied in all asset recovery cases throughout the EU

Criminal law principles should be applied in all asset recovery cases throughout the EU

The Third Part of The Studies on Arche: The Principle of Law

The Third Part of The Studies on Arche: The Principle of Law

VCLT and the Peaceful Coexistence of Tax and Investment Treaties: A Case Study of Limited MFN Clauses and the FET Standard

The general purpose of this article is to demonstrate that customary international law (CIL) has a significant role to play in connecting international tax law and international investment law. Bridging a gap between those sources of international law is not only an important endeavour in the theory of law but also in practice. This article purports to achieve the abovementioned general purpose by focusing on the application of the rule and principles of interpretation under the Vienna Convention on the Law of Treaties (VCLT), which represent a codification of CIL, to limited most favoured nation (MFN) clauses in tax treaties. The hypothesis of the authors is that a serious failure in a proper application of the VCLT to interpret the MFN clauses in tax treaties may lead to a violation of international investment agreements (IIAs), in particular the fair and equitable treatment (FET) standard. The analysis and conclusions are relevant to all tax treaties and IIAs containing the MFN clause and FET standard, respectively. They are also of relevance for the interpretation of all provisions of tax treaties, not only the limited MFN clauses, in accordance with the VCLT. Examining tax treaties through the lens of the FET standard allows the FET standard to be seen as a gateway for the systemic integration of tax treaties in accordance with the principle enshrined in article 31(3) (c) of the VCLT, because some of core elements of that standard are deeply rooted in sources of international law (general principles of law and custom).

Law Enforcement in the Perspective of Legal Sociology

This paper examines the effectiveness of law enforcement in society from the perspective of legal sociology. The goal is to explain the extent to which law enforcement can be effective in society. To obtain data from the problem, the author uses the library research method to collect information relevant to the topic or problem to be studied. The type of data used in this study is secondary data obtained from library materials or literature that have a relationship with the object being studied. The results of the study show that the effectiveness of law enforcement has not been maximized. This is marked by the fact that it is not easy for the law to be enforced in cases involving elites or officials. The law should apply to all circles, not recognizing social stratification in its enforcement, but the reality that occurs is inversely proportional to the principle of law, the law is used as a tool for those who have interests. Therefore, the sociology of law is present to examine the impact of the enactment of a law in society, so that social phenomena can arise and develop in society. The sociology of law and the effectiveness of law are very closely related, because what will be discussed in the sociology of law will not be separated from the assessment of how far the effectiveness of law exists in society as part of social phenomena.

Judicial Interpretation of the Inclusion of Standard Clauses in Murabahah Contracts Reviewed from the Principle of Proportionality and Islamic Law

Agreements are an important aspect of law relating to business. An agreement basically must fulfill several conditions for the validity of the agreement, as well as paying attention to the legal principles of the agreement. In practice in banking, including Sharia banking, generally agreements or contracts are made using standard clauses. The aim of this research is to find out Juridical interpretation of the inclusion of standard clauses in murabahah contracts in Islamic banks in terms of proportional principles and Islamic law. This research is normative legal research using statutory approaches, legal principles and Islamic law. The results of this research show that the juridical interpretation of the inclusion of standard clauses in murabahah contracts contains elements of a combination of positive law and Islamic law. The inclusion of standard clauses in a murabahah contract must be interpreted contextually, both in terms of the object being traded or the subject matter of the parties involved in the contract.

General characteristics of evidence in international ad hoc criminal tribunals (ICTY, ICTR, IRMCT)

A study of the evidence in the International Criminal Tribunal for the former Yugoslavia, the International Criminal Tribunal for Rwanda and the International Residual Mechanism for Criminal Tribunals is provided. Attention is paid that the Yugoslav and Rwandan tribunals, established by the UN Security Council based on UN Security Council resolutions; the reasons for the creation of these tribunals were the most audacious violations of human rights in the form of international crimes. In fact, in the resolution that established the Yugoslav Tribunal, the UN Security Council expressed its concern about the numerous reports of large-scale and brazen violations of international humanitarian law that occurred in the territory of the former Yugoslavia and, in particular, in Bosnia and Herzegovina, and aimed to put an end to such crimes and take effective measures to bring to justice the persons responsible for the mentioned crimes. Since both the ICTY and the ICTR were created as temporary ad hoc tribunals, after their termination, pending cases were transferred to the newly formed body - the IRMCT, which has the same jurisdiction as the ICTY and the ICTR. It was concluded that the rules of evidence adopted by the ICTY, ICTR and IRMCT are «unique». They were formed based on consensus between national legal systems that belong to the legal systems of common law and civil law. It is emphasized that the ICTY and the ICTY, and later the IRMCT adopted fairly soft and flexible rules for the admissibility of evidence. In the event that the Rules of Procedure and Evidence of the ICTY, the ICTR or the IRMCT do not contain relevant norms that regulate the rules of evidence, the Chamber considering the case has the right to apply such rules that best contribute to the fair resolution of the case under consideration and correspond to the spirit of the Statute and the general principles of law. Special attention is paid to the principle of equality of the parties and its role in the collection and presentation of evidence in ad hoc international criminal tribunals.

High Sea Freedoms Walking the Plank

Abstract This article examines whether and to what extent the concept of the common heritage of humankind (CHH) can be used to remedy the weaknesses of the high seas fisheries regime. Following a brief review of the circumstances in which the CHH emerged, the notion, legal status, and normative content of the concept are examined. Whether the CHH concept has been integrated into other international instruments, thus qualifying it as a general principle of law, is analysed. Subsequently, the high seas fisheries regime is examined closely to identify any existing gaps. The article then turns to the question of the applicability of the CHH as a limitation of the freedom of fishing and draw comparisons between Parts VII and XI of the United Nations Convention on the Law of the Sea, delineating the potential ramifications of such an application. The assessment submitted is based on a perspective sub specie legis ferendae.

Role of Law in Social Transformation : Current Issue and Challenges

Law and Social transformation is a very unique concept which highlights the studies and changes in social problems and their solutions through legal approach. Here law changes the society which means that the law of the land compels the society to be changed according to law. When dispute arises matter is brought before the judiciary which applies the rule of law principle to change either the existing custom or law. Secondly society changes the law it means that the law is made by the society according to the requirement of the democratic institution. It can be brought out either by legislating function or by adopting customs and practices. Law has always be seen as an instrument that could bring out social change. An attempt is made in this paper to emphasize that though there are several devices to bring about a change and transformation in our society but for law none can be considered as the most effective and safest method.

South Africa Sues International Court Over Israel's Palestinian Genocide under International Law

This article examines the legal and geopolitical implications of South Africa's unprecedented lawsuit against Israel for genocide in Gaza, brought before the International Court of Justice (ICJ). The conflict stems from longstanding tensions between Israel and Palestine, exacerbated during the October 7, 2023 crisis. South Africa's legal action alleges Israel's actions and omissions in Gaza constitute genocide under the 1948 Genocide Convention, citing evidence of extensive civilian casualties, particularly women and children. Israel, however, denies the accusations, attributing civilian deaths to Hamas and asserting its right to self-defense against rocket attacks. The ICJ's role as a peaceful dispute resolution forum is highlighted, emphasizing its authority to adjudicate disputes between nations and provide legal opinions. The research employs a normative legal approach, analyzing international law principles and regulations, using a case study methodology to explore the legal complexities of the case qualitatively. The findings contribute to a deeper understanding of the legal mechanisms governing international disputes and the potential impact of legal proceedings on conflict dynamics.

What would it take? The potential and limits of proportionality analysis in law

ABSTRACT Proportionality has become one of the primary standards for violations of fundamental and human rights in various constitutional and international jurisdictions. Proportionality in the strict sense requires a comparison of the infringement of a right with the achievement of a state interest pursued by a measure. The incommensurability of the two is an often-raised challenge to this comparison. The Article does not adopt a fully-fledged sceptical stance. Instead, it looks to proportionality as a means of overcoming the challenge of incommensurability. It then examines the structure of comparisons in general and of comparisons of incommensurables employing proportionality in particular. As for the latter it focuses on its performance by exploring the example of decathlon, where this type of comparison works exceptionally well. The example allows us to analyse the preconditions for comparing incommensurables. Unfortunately, most of these preconditions are lacking in the law. This explains why the proportionality principle in law only produces convincing results in cases where the disproportionality is very pronounced. In many other cases, however, the courts decide based on proportionality as well. This raises the question: What is really going on in these cases? The article concludes with a brief account of a benevolent explanation.

State Practice and Opinio Juris at the Intersection of Customary International Law and General Principles of Law

Abstract Starting from a reflection on the legacy of Benedetto Conforti’s scholarship and his construction of general principles of law as a sui generis category of customary international law, this essay discusses the issue of the distinction between general principles and customary rules. It focuses on the recent work of the International Law Commission, and argues that the solutions offered in the Draft Conclusions on General Principles of Law, provisionally adopted in 2023, are far from satisfactory as regards both principles derived from national legal systems and principles formed within the international legal system.

Subsidiary liability of a self-regulatory organization in the system of methods for ensuring the fulfillment of obligations

Relevance. Self-regulation is one of the most rapidly developing legal institutions, but its development faces a number of difficulties, both theoretical and practical. The question of the place of self-regulation in the legal system, its classification as an institution of private or public law is debatable. The problem of subsidiary liability of a self-regulatory organization for its members to consumers of goods (works, services) also requires additional attention, in particular the possibility of classifying it as a method of ensuring the fulfillment of an obligation.The purpose is to develop scientifically substantiated provisions on the subsidiary liability of self-regulatory organizations. Research objectives: to determine the legal nature of self-regulation; to identify private law aspects of self-regulation; to characterize the subsidiary liability of SROs and to establish its relationship with the institution of ensuring the fulfillment of obligations. Methodology. The article is based on the methods of analysis, deduction, description, generalization, formal legal, systemic methods. Results. Self-regulation combines both private law principles and public law ones. The private nature of self-regulation is manifested in the voluntary nature of membership, as well as the imposition of civil liability on it for the actions of its members. The public element is that membership (admission) to the SRO gives the right to carry out certain types of activities.The liability of a self-regulatory organization for damages caused by its members is an important tool in protecting the interests of consumers of goods (works, services) and this differs from licensing.The application of subsidiary liability of a self-regulatory organization should cover any adverse property consequences that have arisen for the consumer of goods (works, services) due to improper performance of their obligations by an SRO member.Conclusions. Subsidiary liability of an SRO is a way to ensure the fulfillment of an obligation aimed at creating additional guarantees for the creditor of the proper fulfillment of the obligation at the expense of the property of a third party.

Handling cyberspace's state of intermediacy through existing international law

Abstract How international law applies to the use of information and communications technology by States is still a matter of discussion. Against this background, cyberspace has become the main area of competition between States, and this competition, to put it simply, is resulting in a constant low-intensity warfare below the threshold for a use of force. Such low-intensity cyber warfare, from a legal point of view, revitalizes the debate over the concept of a “state of intermediacy” that has the potential to overcome the dichotomy between peace and war. In the present author's opinion, this state of intermediacy also supports the idea that the international humanitarian law (IHL) principle of distinction should be applied, even before the eruption of a full-scale war, whenever wartime means and capabilities are employed by States. This paper argues that some opacities in international law have created favourable conditions for such constant low-intensity warfare, and that tackling the identified opacities would therefore be beneficial in order to achieve a more peaceful cyberspace. Thus, the paper goes on to address one of the identified opacities, namely the definition of espionage under international law, because, as international law now stands, it does not allow us to tackle the other identified opacities. Finally, the paper discusses how the proposed narrow interpretation of espionage can cope with the IHL principle of distinction in the cyber domain.

To divide or not to divide: Innovations on liability for reparations in the Ntaganda case

Abstract In 2021, the Ntaganda case introduced a new approach to evaluating the monetary liability for reparations in the International Criminal Court (ICC) by explicitly recognizing joint and several liability and centring the determination of the quantum of reparations on the harm suffered by the victims and the costs to repair it. As suggested by the Ntaganda Trial Chamber, these two innovations promote a stronger separation between the reparation process and the criminal trial, in order to consolidate a compensatory and victim-centred approach to reparations awarded by the ICC. This article critically appraises the innovations in Ntaganda through the lens of Article 21 of the Rome Statute, focussing on three elements: (i) the evolving jurisprudence on monetary liability in the ICC prior to the Ntaganda case; (ii) the case law on reparations of hybrid criminal courts; and (iii) the notion of general principles of law derived from the national legal systems of the world, in the sense of Article 21(1)(c) of the Statute. The article argues that, despite its victim friendly veneer, the approach introduced in Ntaganda should not be taken for granted. Besides the fact that multiple important aspects and ramifications of this approach remain unaddressed, those two innovations may have serious implications for the victims, the convicted persons, and the ICC’s reparations process as a whole.

Legal Entity State Universities Don't Have the Authority as Goods or Services Providers in the Perspective of Sharia Economic Law

The realization of cooperation ties between Legal Entity State Universities (PTN BH) and work partners, in practice, still has legal ties mechanisms that position PTN BH as goods/services providers. This research aims to determine the competence of PTN BH, which does not have a legal position as a goods/services provider in conducting legal ties with government and non-government partners. This renewable research was conducted to explore/understand PTN BH's competence in managing collaboration. In have rights practice, the realization of cooperation still shows that PTN BH is a provider of goods/services in carrying out cooperative relationships with Government and non-government partners. This research uses a normative doctrinal approach or normative juridical legal research, which examines the internal aspects of positive law or legislation. The data collection technique was carried out through a literature study in the form of secondary data in the form of articles that have been published in journals as basic research material. The results of this research show that there are basic principles for PTN BH in collaborating with partners, namely the non-profit principle, the tri dharma principle of higher education, and the principle of truth and justice from a Sharia perspective. Economic law following Sharia economic law principles.