Legal Treatment Research Articles

The Legal Treatment Problem of French and Georgian Nationals Who Joined the Islamic in Iraq and/or Syria

With the weakening of the Islamic State, many French and Georgians who had joined the organization, were arrested by the Syrian Democratic Forces (SDF) in Syria and by the Iraqi authorities. These people have been placed either in detention in Iraq or in camps in Syria with catastrophic health and security conditions. Even if France and Georgia are unambiguously reluctant to repatriate their nationals who have joined Daesh in order to try them on their territory, it is appropriate to ask whether this policy is consistent with international law. This article aims to provide a legal response to the political and security issues surrounding the repatriation and trial of French and Georgian nationals who have joined Daesh. Firstly, the legal dilemma of the trial of adults who joined Daesh will be studied in the light of international law and the domestic law of Iraq, France and Georgia, including the thorny issue of the application of the death penalty in Iraq and the recognition of crimes against humanity. Secondly, the legal possibility of repatriation of French and Georgian minors interned in camps in northern Syria will be analyzed.

Unsettled Liability Issues for “Prediagnostic” Wearables and Health-Related Products

This Viewpoint examines the murky legal treatment of various health-related wearable or other general wellness products for patients, physicians, and manufacturers, and recommends solutions.

Is the Public Domain Just?: Biblical Stewardship and Legal Protection For Traditional Knowledge Assets

The present debate over the legal treatment of traditional knowledge (TK) and genetic resources tends to rationalize the precarious conditions in which Indigenous peoples and local communities live. The debate is organized around the question whether TK should be treated as part of the public domain or whether property rights should apply. Both sides presuppose either a robust utilitarianism or else a narrow conception of historical redress for past injustices. This Article argues that both property and the public domain depend on the disruption of places, people, and cultures that may stand in the way of the material conditions industrialized societies use as a proxy for human welfare. The TK debate tends to avoid fundamental moral and justice-related aspects of TK protection, including the centrality of TK to Indigenous peoples’ cultural identities and ways (and quality) of life, as well as their long-term socioeconomic development. The Article proposes a theological framework of “biblical stewardship” rooted in imago Dei—the foundational concept informing Jewish and Christian understandings of human nature and social interaction—to address the socio-moral dimensions that are constitutive of TK systems and the institutional context in which they unfold. The biblical stewardship framework focuses on the cooperative and kinship arrangements that enable and sustain productive capacity for TK. It centers the need for Indigenous peoples and local communities to be able to develop and protect their knowledge assets as a precondition for those communities’ thriving, both in the present and the future. Moreover, biblical stewardship supplies a basis for accountability by Indigenous peoples and local communities for how their TK is managed, shared, and utilized within a broader framework of progress and the public good—including obligations that foreclose access and benefit-sharing agreements that may undermine conditions for flourishing of plant, animal, or human life.

Protección de los servicios ambientales de los bosques. Mirada desde el derecho penal ambiental

Addressing the protection of forest environmental services from the perspective of environmental criminal law, would contribute to achieving an approach to effectiveness and international concern for environmental problems and the real disconnection between protection, the benefits provided by ecosystems and the irrational way of human behavior towards nature. As fundamental methods, the exegetical-analytical method is used to determine the meaning and scope of the current regulations on the matter, in conjunction with the legal institutions related to the subject, for which the validity and effectiveness of the current regulations on the subject will be evaluated. matter; the doctrinal in correlation with the analysis of current legislation, to verify the need for its improvement; the historical, to abound in the antecedents, the context and formation of the normative and philosophical doctrines that serve as its foundation; and finally that of Comparative Law, which allowed knowing the legal treatment that other systems of Law give to a similar reality and critically assessing whether it merits a reference for the purposes of this investigation.

The Legal Treatment of Muslims in Italy in the Age of Fear and Insecurity

AbstractAlthough diverging influences have always characterized the relation between religion and democracy, in Italy, tensions arising from these divergences are especially exacerbated by the country’s current religious diversity and plurality, and they are magnified when combined with chronic emergencies such as immigration and international terrorism. These critical factors complicate the application of freedom of religion and the supreme principle of secularism (principio supremo di laicità), which are essential parts of the Italian legal system. This article analyzes these aspects of the law by considering the relation between Islamic communities and the state. In particular, the article focuses on both endogenous influences (Italy’s traditional system of state-church relationship) and exogenous influences (immigration and international terrorism). These factors muddle the interpretation of constitutional rights, including the right of Muslims and Islamic groups to be equal and equally free before the law.

UNVEILING A NEW CURTAIN: THE APPLICABILITY OF CISG ON SALES OF DRONES

Drones have become an integral part of the aviation industry, encompassing a wide range of sizes and functions. This paper examines the interpretation and application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) to the sale of drones. While drones are not explicitly excluded from the CISG, their absence from its provisions can be attributed to the CISG's formation predating their widespread commercialization. The absence of specific provisions addressing drone sales within the CISG has led to diverse interpretations. However, considering the CISG's objective of establishing a uniform legal framework and promoting good faith in international trade, extending its application to the sale of drones is conceivable. As an internationally recognized legal instrument for the sale of goods, the CISG provides a convenient framework for parties involved in drone transactions. However, the CISG must also consider the intricacy and risks associated with certain goods, which may conflict with other legal regulations or introduce complexities in their legal treatment. Drones exhibit diverse types, functionalities, and operational contexts, and their regulation varies significantly across different countries due to airspace and national sovereignty considerations.

Interstate Investment Legal Treatment As A Factor Of Investment Attractiveness

Purpose: This paper aims to provide an analysis of the author's research in relation to legal investment treatments among participants who are not only interested in the topic of national economic development but would like to be aware of additional essential non-purely economic elements and factors of this desirable development. Methodology: For this research, the methods of scientific abstraction, logic and analytics, as well as expedients in the style of historicism of international law and philosophy of modern business, have been applied. Results/Findings: The research highlights the significance of investment legal treatment as a contributor to local investment attractiveness, outlining the importance of developing state guarantees to protect foreign investments by delivering progressive European approaches.

To Be a Holy People: Jewish Tradition and Ethical Values

To Be a Holy People: Jewish Tradition and Ethical Values

Inseminação Post Mortem: Dilemas Bioéticos e Jurídicos na Concepção de Criança Órfã em Portugal e no Brasil

Este artigo transita pelo direito de família e pela bioética para tratar de tema controverso: a Procriação Medicamente Assistida ou PMA post mortem. Objetiva analisar o tema e traçar um comparativo do tratamento legal dispensado ao assunto em Portugal e no Brasil. Trata-se, metodologicamente, de uma revisão bibliográfica de parte da doutrina e da legislação que versa sobre a PMA, bem como de recorte jurisprudencial referente ao objeto de estudo nos dois Estados. Em Portugal, o material genético criopreservado, desde que haja prévia manifestação de vontade do falecido em constituir família, pode ser usado na inseminação homóloga. A nova redação da lei que regulamenta o tema enfrenta questionamentos sobre sua aplicação prática pelo Conselho Nacional de Procriação Medicamente Assistida. No Brasil, homem ou mulher podem recorrer tanto à PMA post mortem homóloga – com uso de material genético do casal – quanto a heteróloga, com material de terceiros. Na falta de lei específica tem sido admitida a inseminação com base em dispositivos do Código Civil, da Lei de Biossegurança e em atos normativos do Conselho Federal de Medicina. Nos dois Países a tese favorável à inseminação enxerga nessa prática um direito legitimo das pessoas envolvidas, respeitando a autonomia da vontade do falecido e do sobrevivo em dar seguimento ao projeto parental interrompido pela morte. A tese contrária tem por base a preocupação com os efeitos sucessórios, uso de material genético da pessoa morta e a importância da família com pais presentes para o pleno desenvolvimento da criança nascida por inseminação post-mortem.

Men and Women in The Distribution of Inheritance in Mandar, West Sulawesi, Indonesia

In general, there are two patterns of inheritance distribution in Indonesia, based on Islamic and customary inheritance laws. This research specifically focused on the distribution of inheritance for men and women in Mandar by scoping the research area in Polewali Mandar Regency, West Sulawesi Province. This research is an empirical legal study using the sociology of law approach. Data collection techniques were obtained through literature study and interviews. The results showed that the Mandar people who lived in Polewali Mandar, West Sulawesi Province, considered that whether son or daughter earned the same sharing, there was no difference. The view that puts the same position between the two has influenced the legal treatment of inheritance. The distribution of inheritance in Mandar, especially for sons and daughters, was found in two patterns, namely, using Islamic inheritance patterns and customary inheritance patterns. This customary inheritance pattern is practiced in the form that they are no longer able to define, whether it is in the form of Islamic law or customary law, dividing the inheritance to their children to be managed by themselves, and some have shared the inheritance with their children, but the heir still manages the assets, and the house of the parents belongs to the youngest child, without distinguishing between the youngest son or the youngest daughter.

Personal, Not Real: Manufactured Housing Insecurity, Real Property, and the Law

Manufactured homes provide a critical source of affordable housing and are the primary source of low-income homeownership in the United States. Yet manufactured housing (MH) is both socially stigmatized and spatially marginalized, which translates to significant inequalities for MH residents. The law figures centrally into how MH is perceived and how it is located, segregated, and financed differently from other housing. This review explores how the law has treated MH with legal hybridity, as personal property similar to an automobile rather than real property like other forms of housing. This core legal distinction structures an array of zoning, financing, and policy provisions that together create a gulf between the opportunities available to conventional owners and renters and those available to residents of MH. I explore existing research on the outcomes of this disparate legal treatment to offer an agenda for future research on a broader range of housing insecurities.

Modernizing Competition Policy and Law: The Impact of Marketing Developments on the Legal Treatment of Price Maintenance in the United States, the European Union, and China

Competition policy and law toward price maintenance (e.g., resale price maintenance, unilateral price policies, minimum advertised prices) draws on scholarly perspectives and theory developed over a half century ago. Since that time, changes to marketing practice have caused scholars to question the practical relevance of the perspectives and theory and to call for the modernization of competition policy and law toward price maintenance. Responding to these calls, the authors examine three important developments in contemporary marketing practice and assess their impact on the legal treatment of price maintenance in the three largest economies: the United States, the European Union, and China. Their analysis reveals significant differences in how each jurisdiction is responding to (1) increasing market concentration and accompanying shifts in interfirm power, (2) advances in information technology and the commercial use of the internet, and (3) developments in cross-channel shopping and the rise of omnichannel distribution. Their findings pose implications for future public policy, marketing practice, and academic scholarship and contribute to the modernization of competition policy and law.

Is Artificial Intelligence (AI) a Pipe Dream? Why Legal Issues Present Significant Hurdles to AI Autonomy.

Proponents of artificial intelligence (AI) technology have suggested that in the near future, AI software may replace human radiologists. Although assimilation of AI into the specialty has occurred more slowly than predicted, developments in machine learning, deep learning, and neural networks suggest that technologic hurdles and costs will eventually be overcome. However, beyond these technologic hurdles, formidable legal hurdles threaten the impact of AI on the specialty. Legal liability for errors committed by AI will influence the ultimate role of AI within radiology and also influence whether AI remains a simple decision support tool or develops into an autonomous member of the health care team. Additional areas of uncertainty include the potential application of products liability law to AI and the approach taken by the U.S. FDA in potentially classifying autonomous AI as a medical device. The current ambiguity of the legal treatment of AI will profoundly influence development of autonomous AI given that vendors, radiologists, and hospitals will be unable to reliably assess their liability associated with implementing such tools. Advocates of AI in radiology and health care in general need to lobby for legislative action to better clarify the liability risks of AI in a way that does not deter technologic development.

On the problem of criminal law protection of state symbols: Ukrainian and foreign experience

The article reveals the problem of Ukrainian and foreign state symbols criminal law protection considering domestic and world practice. The relevant norms of criminal laws of the Russian Empire, USSR and Poland, which were in force in the Ukrainian lands in the XIX-XX centuries, have been examined. An analysis of domestic judicial practice in criminal cases related to the abuse of state symbols has been done. It has been illustrated that Ukrainian law enforcement agencies do not always correctly determine the nature of this crime. That is due to the lack of constitutional laws enshrining the system of state symbols of Ukraine, as well as gaps in legal regulation, in particular in the aspect of criminal protection of the European Union flag as membership in this organization is a strategic foreign policy priority of Ukraine. Inter alia, the erroneous legal treatment of individuals’ actions during the protest which took place near the President’s Office on March 20, 2021 as an insult to the State Emblem has been emphasized. The authors also considered solutions of the problem within the framework of a particular legal system – in criminal law of the United States, Germany, France, Spain, Iceland, the United Arab Emirates, Uzbekistan, Japan and other countries. The scientific novelty of this investigation, among other things, is in the examination of both retrospective and prospects of legal responsibility for disrespect of the State language, which is necessary to establish according to the Constitutional Court’s decision on the validity of the Law of Ukraine “On ensuring the functioning of the Ukrainian language as the state language”. However, the authors are inclined to think that this issue should be regulated by administrative law, given the experience of some post-Soviet states. Proposals for amendments to the Criminal Code of Ukraine have been made.

Consent Theory and Adhesion Contract: A Critical Analysis of Contemporary Global Business Practices

Consent Theory mandates that both parties should have the right to negotiate terms and conditions of the contract on equal footings. At present, the ‘right to negotiate’ has been adversely affected by the introduction of Adhesion Contracts in almost all forms of online business and parts of the traditional business modes. This paper aims at critically analyzing jurisprudential tensions created by the Adhesion Contract to Consent Theory through application of analytical method. The authors argue that the Adhesion Contract tilts in favor of the dominant party. This paper further aims to examine the relevant case laws in Pakistan, relating to the enforcement of Adhesion Contracts and to assess the overall effectiveness of such clauses that renders the weaker party in exploitative state. Findings of the study suggests that courts should intervene to eradicate exploitation of the weaker party, by more markedly differentiating the legal treatment of unfair terms. Furthermore, Pakistani legislators must enact laws declaring such terms to be illegal.

Of rivers, law and justice in the Anthropocene

AbstractBeginning in the 2010s, rivers have captured the legal imagination of judges, legislators and activists alike, as part of a rapidly growing phenomenon described by UN Special Rapporteur on human rights and the environment, David Boyd as ‘a legal revolution that could save the world’. Investigating river cases in jurisdictions as diverse as Aotearoa New Zealand, Colombia, India, the United States and Australia, and following Nicole Graham's suggestion that the non‐human world is constantly reconstituted within an all‐encompassing legal cosmology for which any observable ‘thing’, any ‘object’, any landscape, is always, inherently, and inevitably a ‘lawscape’, this paper explores the legal and the ontological nature of ‘the river’. By casting traditional riparian doctrines against novel rights of Nature judgments, the paper highlights the interconnected and interdependent legal relationship between artificially construed human and non‐human worlds, and observes a series of perceptible generational shifts in the legal and ontological treatment of rivers, from an abstract near‐neglect, to a rights‐based discourse, and ending (for the moment at least) in a deeply relational re‐conceptualisation.

How to Handle Offending Troops Overseas: The U.S. Military’s Legal Strategy During the Cold War

The peacetime deployment of U.S. forces in foreign countries goes against traditional notions of sovereignty. How did such deployment become legitimate following World War II? This article examines the legal strategy that the U.S. military employed to make American troop presence more palatable to foreign publics and to critics at home: granting certain legal authority over offending troops to host countries, while seeking to shield troops from trials in host-country courts. The military also used local, informal ties with hosts to guarantee fair legal treatment for troops and worked to convince skeptics that U.S. troops faced no legal threat. The mitigating of legal tensions helped the military create conducive political conditions for its presence abroad and likely contributed to the durability of U.S. deployments. The Cold-War practice contrasts sharply with the contemporary desire of the United States to maintain complete jurisdiction over its troops.

Family Matters: Older Refugee Minors in Vienna and Factors for Resiliency

Abstract European migration discourses emphasize that unaccompanied refugee minors (URMs) are one of Europe’s most vulnerable migrant groups. The absence of an adult caregiver often serves as the sole explanation for the heightened vulnerability of URMs vis-à-vis their accompanied counterparts. This article challenges the assumption that the absence of adult caregivers always breeds greater vulnerability among young refugees who have received international protection. Based on 72 surveys and 31 in-depth interviews with refugees who received international protection and who arrived in Vienna, Austria between the ages of 14 and 18, this article contributes to empirical analysis on the complex impact adult relative caregivers specifically have on the integration and resiliency of refugee youth. It explores the influence that family status has on employment, education, social connections and personal outlook and sense of belonging. We hypothesize that refugees who arrived as older URMs experience a financial and social autonomy, as well as benefit from a more advantageous legal and social treatment, speeding up their adaptation process and engendering greater resiliency. While the findings highlight that family matters, they also show that family may not play a ubiquitously positive role in young refugees’ adaptation process as previously assumed.

НАСИЛЬСТВО ЛЮДИНИ НАД СОБОЮ: КРИМІНАЛЬНО-ПРАВОВИЙ АСПЕКТ

The analysis of the content of the articles of the Criminal Code of Ukraine on the content of the provisions on human violence against oneself was carried out. The study of medical legislation, publications in the media, scientific periodicals allowed to determine the nature and features of self-violence, to show medical and legal aspects of human protection. The positive and negative violence of a person against himself is highlighted. The latter can be indirectly criminally punishable only in situations where it causes or may cause harm to other protected objects, in particular, public health, legal treatment of narcotic drugs, psychotropic substances or their analogues, public order in terms of creating conditions for normal physical and moral development of other people, the order of passing and military service. It is established that the legislator does not establish criminal protection of human life and health from himself, but provides for involuntary hospitalization in a psychiatric institution of a person who commits or reveals real intentions to commit acts that pose an immediate danger to him or inability to satisfy their basic vital needs at a level that ensures its vital functions.

The Relevance of Behavior of Law Theory to Law Enforcement in Indonesia

This article discusses the discrimination in legal treatment of the community that still occurs today. The principle of equality before the law cannot be fully implemented properly. The theory of behavior of law explains why this problem still occurs. The purpose of this study is to discuss what factors cause legal discrimination to occur. This legal research type is descriptive analysis. The type of data used is secondary data. The data collection method used is literature study, which is a technique to obtain secondary data through documents related to the problem, purpose and benefits of the research. This study uses qualitative data analysis techniques, namely data obtained from literature studies and then arranged systematically and then analyzed qualitatively to achieve clarity of problems to be discussed. The data is then analyzed interpretively using positive theory and law that has been outlined and then inductively drawn conclusions to answer the existing problems. The results of this study, that the factors of stratification, morphology, culture, organization and social control are the main factors in causing stratification. This factor causes people who have power to have easier access to the law than those who do not have power. This problem will continue continuously if law enforcement officers do not fix their morals. Massive, decisive and sustainable efforts are needed from all parties to change this legal culture.