Public Law Perspective Research Articles

User accounts: How technological concepts permeate public law through the EU's AI Act

This article argues that through the EU's technology regulation, technological concepts permeate legal language. Such concepts may function as transplants, even irritants, causing tensions and uncertainties. As technology regulation is increasingly horizontal, i.e. obligating private and public actors alike, these newfound legal concepts remain disconnected from established public law vocabulary and the power constellations it represents and embeds. We approach this evolution of legal language from public law perspective and concentrate on the concepts of ‘user’ and ‘deployer’ in the EU's upcoming Artificial Intelligence Act. We discuss these emerging legal concepts in relation to the rich theorizing on the concepts in human–computer interaction research. Our analysis demonstrates a discrepancy between legal and technology-oriented conceptualizations of the ‘user-deployer’. We draw three conclusions. First, the digital revolution is taking place in conceptual-linguistic practices of law, and not only when translating law into code. Second, when external concepts are appropriated into law, they are uprooted from their established habitat, which may result in unpredictability in future legal interpretation. Third, in public law, adopting the ‘user-deployer’ may have some additional challenges, as it introduces a new agent into the relationship between public authority and private entities. Simultaneously, citizens seem to be mainly excluded from the legal conceptualizing, which risks blurring traditional power constellations.

Starlink’s Provision of Telecommunication Services During the Time of Armed Conflict and Its Consequences from the Perspective of Public International Law

This article attempts to provide an overview of the most important international regulations relating to the provision of telecommunication services by private companies to one or more belligerent parties in times of an armed conflict. Taking as an example the recently widely commented issue of Starlink allegedly withholding its services otherwise provided to the Ukrainian Armed Forces, this article reviews the issue from the perspective of general public international law as well as international space law. Specifically, the customs and regulations concerning the attributability of private parties actions as well as peaceful utilisation of outer space are scrutinised.

The history and evolution of warranty liability of apartment complexes

Regulations on defects in multi-family housing are stipulated by two positive laws: the Act on Ownership and Management of Condominium Buildings and the Multi-Family Housing Management Act. However, the characteristics and purpose of these two laws differ. The Multi-Family Housing Management Act is a public law securing the constitutional rights to housing, which includes administrative laws on the construction of housing (e.g., the Housing Construction Promotion Act) and those related to the management of housing (e.g., the Housing Act and the Multi-Family Housing Management Act). However, the Act on Ownership and Management of Condominium Buildings is a private law merely focusing on the property rights of condominium owners. Therefore, the stipulations of these two positive laws regarding defects in multi-family housing also differ in many aspects, such as the types of defects, standings to claim repair, distribution of responsibility, and statutory limitations. However, the legal aspect remains ambiguous, despite the gap being narrowed through several rounds of enactment and amendment to positive laws. In particular, the meaning of the project implementer's defect repair responsibility, which must be understood from a public law perspective, has been considerably ambiguous. Consequently, for defects in multi-family housing, the focus is merely on monetary compensation for defects, which is a matter of private law, rather than on the implementation of defect repair itself, which is a matter of public law. Accordingly, this study examines the problems related to the repair of defects in multi-family housing by analyzing the history of these positive laws, their detailed stipulations, and the differences in defect warranty liability. Based on these analyses, this study attempts to identify and suggest solutions to overcome these issues.

Contractualizing Environmental Protection: Public and Private International Law Perspectives in Azerbaijan’s Post-conflict Reconstruction

Contractualizing Environmental Protection: Public and Private International Law Perspectives in Azerbaijan’s Post-conflict Reconstruction

Water fluoridation between public health and public law: an assessment of regulations across countries and their preventive medicine implications.

Among health professionals and health policymakers concern is growing as to the difficulty of balancing the prevention of dental caries through cost-effective interventions and the need to limit unnecessary exposure of the population, and especially children, to environmental chemicals. In this respect, the use of water fluoridation to prevent tooth decay epitomizes the dilemma by raising questions relevant to both public health and public law, ranging from the balance of public health and medical self-determination, the division of powers between local or national authorities over water fluoridation, and the need to avoid the adverse effects of socioeconomic inequalities as well as both under- and over-exposure. We carried out a narrative review by searching the relevant literature about the laws and rules related to drinking water fluoridation at the community level in the US, UK, and Europe, in order to discuss how the issue is handled from both a public health and public law perspective. Sources of data for this review were the biomedical and legal literature retrieved by searching online databases, and websites of public health and legal institutions. We found that water fluoridation is still largely adopted throughout the US, while in the UK and particularly in the European Union only a minor part of the population is subject to it. In addition, the recommended and maximum allowed amounts of fluoride in drinking water are being adapted to the public health recommendations and the new regulations, within an evolving evaluation of the epidemiologic evidence and the risk assessment currently in progress by two major regulatory agencies, the US National Toxicology Program - NTP and the European Food Safety Authority - EFSA. Under a comparative public law perspective, the three investigated legislations are facing a reassessment of their policies and regulations, to allow for effective and safe public health measures in the field of water fluoridation and more generally for a preferred use of topical fluoride for caries prevention. A consistent trend across these legislations is the choice to centralize at the national level regulatory and management issues related to water fluoridation, and to carefully balance benefits for dental caries prevention in children and the potential risks of systemic overexposure associated with excess fluoride intake, by promptly responding to the evolving indications by the scientific community and the public health professionals.

Conceptualising Extraterritoriality. Public International Law and Private International Law Considerations

Abstract The aim of this article is to analyse extraterritoriality from public international law and private international law perspectives. Although many scholars relate the exercise of extraterritorial jurisdiction to both private and public international law, in practice the topic is mainly considered as belonging to the latter. Moreover, extraterritorial jurisdiction is not a common notion under private international law. Perhaps because the extraterritorial norm is intended to regulate first and foremost state conduct and not relationships between private persons, but this vision does not take into account that the latter are frequently affected by the norm. It is argued here that from a public international law perspective, the legal framework of extraterritorial jurisdiction is unsettled and incomplete. The bottom line is that states are largely free to unfold their power, given that international law does not really regulate extraterritorial jurisdiction but only establishes the negative obligation not to trespass on state sovereignty. Thus, considering extraterritorial jurisdiction from a national perspective, in this paper, under the general framework of private international law is not only necessary but also justified. In addressing the above, this article will first analyse extraterritoriality as an exception under public international law (2). It will reflect on the lawful/unlawful grounds for the exercise of extraterritorial jurisdiction and will show that the abandonment of territoriality in jurisdictional assertions is more desirable than feasible. Then extraterritoriality will be analysed as an inherent feature of private international law, that can be traced in all three domains regulated by the private international law (3). It will also make a case on the extraterritorial reach of national constitutions.

Towards a Public Law Perspective on the Constitutional Law of Privacy in South Africa in the Age of Digitalization

AbstractRapid and radical digitalization and the “fourth industrial revolution” are generally associated with progress, but also pose significant risks to privacy rights and democracy. This article proposes a public law reading of the South African Constitution to respond to the dangers posed by disruptive technological change, in light of the constitution's rights-orientated and rule-of-law-centred approach to interpreting the right to privacy. It examines the legal resources available in the South African legal system and, specifically, its constitution. The article emphasizes the way South African privacy jurisprudence infuses the right to privacy with the value of dignity, and how this allows an interpretation that sees privacy as a public, as well as private, right. The article concludes that this rights jurisprudence, alongside the constitutional principles of proportionality, subsidiarity and supremacy, has established a working foundation to articulate the right to privacy in a way that is suitable in the digital age.

The Role of Waqf in Supporting Sustainable Development Goals: Linking theory and its practices

Poverty has become a main issue faced by many developing countries. It is worsened by the fact that a few rich people have equal wealth to most of the world's population. Hence attempts to reduce the poverty number have been initiated by many players including academicians and international organizations such as the United Nations through the United Nations Development Program (UNDP). On the other hand, Islamic philanthropy such as Waqf has been linked as a medium to not only eradicate poverty but also attempt to develop and empower society. Therefore, this study attempts to link waqf practices and Sustainable development goals (SDGs). This study uses qualitative methods i.e., explanatory studies. This study finds that waqf has similar characteristics with SDGs in at least 7 out of 17 goals of SDGs, including No Poverty goal, zero hunger goal, good health and wealth being goal, quality education goal, affordable and clean energy goal, decent work and economy goal, and industry, innovation, and infrastructure goal. Hence its promotion of the SDGs program is essential and undeniable. Future studies are encouraged to look further at the potential applications and practices of Waqf to the SDGs, particularly from the perspective of public policy and law.

The Sale of EU Citizenship and the 'Law' Behind It

Investment migration in the European Union (‘EU’) as well as outside of it has been the subject of many legal and socio-political studies, with numerous developments emerging in recent years. There is considerable disagreement on the legal position at EU level, which can be observed in the differing views of commentators on the EU’s competence on the matter. Thus, this article maps the situation concerning citizenship by investment (‘CBI’) in the EU by canvassing the policy and legal developments to date as well as the main critical perspectives from scholarly work. In doing so, this article explores the exact legal position of both EU Member States and organs in the context of the split of competence on nationality matters, as well as routes to potential intervention at EU level. The core research question in this regard is whether the matter is one of law or merely policy, and what could justify EU level intervention in an effort to approximate Member States’ laws on investment migration. Thus, the first part of this article explores relevant theoretical frameworks before moving onto a discussion of trends and tendencies among states (inside and outside the EU). A brief overview of the risks, scandals and controversies attached to CBI throughout the years will follow. Next, the internal and external dimensions of the EU’s approach to CBI will be discussed in order to lay the foundation for a more substantive analysis of the EU’s legal position on CBI, including a discussion on EU citizenship and nationality laws. Last, this article will briefly consider CBI from a public international law perspective, and conclude with a critical commentary of the issues canvassed, including on the so-called ‘soft law’ considerations of citizenship and on the European Commission’s proposals in response to investment migration in the EU.

The global distribution of COVID-19 vaccines by the public-private partnership COVAX from a public-law perspective

AbstractThis article examines COVAX, a public private partnership, from a public law perspective. It asks whether COVAX is a legitimate and appropriate instrument with regard to the goal of distributing COVID-19 vaccines in a globally equitable manner and enabling equal access to vaccination worldwide. By developing public-legal legitimacy standards for this purpose, the article critically distances itself from the outset from considering the use of private actors and forms of action in public functions (‘privatization’) essentially as a release of market economy rationality, which enables efficiency and effectiveness gains and relieves the public sector. With the public law perspective, the article questions precisely whether private-law, market-based action is appropriate with respect to the global distribution of vaccines in the pandemic.

INVESTOR-STATE DISPUTE SETTLEMENT IN INTERNATIONAL PUBLIC LAW: AN EVALUATION OF RECENT DEVELOPMENTS

Investor-State Dispute Settlement (ISDS) is a mechanism for resolving disputes between investors and states under international investment agreements. While ISDS has become increasingly popular over the past few decades, it has also been subject to significant criticism for giving too much power to foreign investors and undermining the sovereignty of host states. In this article, we evaluate recent developments in ISDS from the perspective of international public law. We discuss the origins and growth of ISDS, as well as the increasing use of ISDS by investors from developed countries against developing countries. We then examine recent developments in ISDS, including the adoption of transparency rules by UNCITRAL, the Mauritius Convention on Transparency in ISDS, and changes to the way ISDS cases are decided. While these developments represent positive steps towards improving the legitimacy and effectiveness of ISDS, we also acknowledge remaining concerns regarding the imbalance of power between investors and host states, as well as the high costs of defending claims.

The EU’s Representation in International Organizations: Case C-161/20 Commission v. Council (International Maritime Organization)

This article analyses Case C-161/20 Commission v. Council (International Maritime Organization (IMO)), in which the Court of Justice of the EU upheld a Council Decision endorsing a submission to the IMO by the Presidency of the Council on behalf of the European Commission and the Member States (MSs), and not on behalf of the EU. With this case, the Court contributes to the debate on the EU’s external representation, particularly in the context of an international organization to which all the MSs, but not the EU, are parties and which regulates issues falling within EU competences. Combining an EU external relations law and a public international law perspective, this article assesses the Court’s reliance on and interpretation of international law and explores the boundaries carved by EU and international law for the participation of the EU as a separate entity in the IMO. It also seeks to discern how this case fits within the Court’s established ‘gatekeeping’ mechanisms in determining the effects of international law in the EU legal order and whether it signals an emerging, more flexible engagement with international law. International Maritime Organization, European Union, international organizations, Court of Justice of the EU, competences, international law, external representation

Green Power K/S and SCE Solar Don Benito APS v Kingdom of Spain: How EU Law Allegedly Trumps International Investment Law

The Green Power arbitral tribunal is the first tribunal ever (and so far, the only one) that accepted the EU law jurisdictional objections raised by an EU Member State. For this reason alone, this decision is historic. Instead of adopting a public international law perspective for determining the question whether it has jurisdiction, the arbitral tribunal adopted an European law perspective and therefore considered itself bound by the CJEU jurisprudence regarding Achmea and Komstroy. With its decision, which came out only a week before the Contracting Parties to the ect concluded their modernisation negotiations in which the EU and its Member States agreed to carve out the arbitration provision for intra-EU ECT disputes, the arbitral tribunal showed that it had a good sense of what was to come in any event. The consequences of all this are that European investors will be stuck with the domestic courts of the Member States and the European Court of Human Rights – with all their limitations.

The Definitions of Health Apps and Medical Apps From the Perspective of Public Health and Law: Qualitative Analysis of an Interdisciplinary Literature Overview.

The terms health app and medical app are often used interchangeably but do not necessarily mean the same thing. To better understand these terms and better regulate such technologies, we need distinct definitions of health and medical apps. This study aimed to provide an overview of the definitions of health and medical apps from an interdisciplinary perspective. We summarized the core elements of the identified definitions for their holistic understanding in the context of digital public health. The legal frameworks for medical device regulation in the United States, the European Union, and Germany formed the basis of this study. We then searched 6 databases for articles defining health or medical apps from an interdisciplinary perspective. The narrative literature review was supported by a forward and backward snowball search for more original definitions of health and medical apps. A qualitative analysis was conducted on the identified relevant aspects and core elements of each definition. On the basis of these findings, we developed a holistic definition of health and medical apps and created a decision flowchart to highlight the differences between the 2 types. The legal framework showed that medical apps could be regulated as mobile medical devices, whereas there is no legal term for health apps. Our narrative literature review identified 204 peer-reviewed publications that offered a definition of health and medical apps. After screening for original definitions and applying the snowball method, 11.8% (24/204) of the publications were included in the qualitative analysis. Of these 24 publications, 22 (88%) provided an original definition of health apps and 11 (44%) described medical apps. The literature suggests that medical apps are a part of health apps. To describe health or medical apps, most definitions used the user group, a description of health, the device, the legal regulation, collected data, or technological functions. However, the regulation should not be a distinction criterion as it requires legal knowledge, which is neither suitable nor practical. An app's intended medical or health use enables a clear differentiation between health and medical apps. Ultimately, the health aim of an app and its main target group are the only distinction criteria. Health apps are software programs on mobile devices that process health-related data on or for their users. They can be used by every health-conscious person to maintain, improve, or manage the health of an individual or the community. As an umbrella term, health apps include medical apps. Medical apps share the same technological functions and devices. Health professionals, patients, and family caregivers are the main user groups. Medical apps are intended for clinical and medical purposes and can be legally regulated as mobile medical devices.

Reassessing Social Movements’ Position and Normative Force in Constitutional Settings

Abstract The present article examines the new position of social movements in constitutional settings. It argues that social movements – both structured and unstructured – have rearranged themselves both normatively and spatially to create new means to influence law and politics. The article sketches out new forms in which social movements have understood their ways of organizing and the possibilities for advancing legal and political change in constitutional settings. Using Judith Butler’s theory of assemblage and Bruno Latour’s concept of terrestriality, the article examines how social movements read constitutional settings, such as domestic constitutional apparatuses and international institutions, to advance their political and legal agendas. The article does not limit itself to a pure public law perspective but also incorporates insights from public international law.

독일 베를린주 임대차 규제에 관한 공법적 검토

Criticism has been raised over the legislative process to the extent that the revised legislation on the so-called Three Rent Acts in 2020 is called legislative dictatorship. The rent law is the subject of civil law, but from public law perspective, it can be regarded as one of regulatory legislations as part of a kind of housing policy. It can be said that it is a very important element of evaluation of the regulatory legislation whether it has undergone an appropriate process of deliberation based on our economic reality. This study deals with the regulation on the rent control in Berlin, which has recently become a problem in Germany, and the decision on unconstitutionality of the German Federal Constitutional Court. The Berlin’s rent cap is a very radical legislative attempt comparable to our Three Rent Acts. But, it is difficult to compare them in that German civil law as a whole, because of regulations that are not in Korean civil law. The above decision has a simple logical structure that the Act that introduced the Berlin’s rent cap is unconstitutional because the federation used competitive legislative authority completely. However, by devoting very long pages to explaining the German legislative history on social rent law, it warns that the rationality and prudence of legislation are important. Through the discussion on German rent regulations, the level of avoiding ideological discussions shown by German law, the systematic and balanced German civil law system, and the importance of a step-by-step and unified response to housing rent regulation can be seen. The level of Korean law has already well developed for a long time, and it is exceeding the level of simply translating foreign law. Therefore, it is silly to imitate German legislation without analyzing or deliberating on our economic situation.

Tra Personal Law e tutela dei diritti umani: le “Minority Women” nel contesto afghano e oltre

The paper aims at investigating the current status of Afghan women’s human rights from the perspective of constitutional and comparative public law in light of the debate on minority women’s condition in multicultural and multiethnic legal systems.
 Moving beyond the analysis of the Afghan legal system and hinging on selected statistics on Afghanistan’s ethnically diverse composition, the first part of the paper examines Afghan’s women condition following the coming into force of the 2004 Constitution by interlacing the constitutional provisions with the existing rules of Personal and Customary Law.
 The second part of the paper goes on by comparing the Afghan legal system with selected European and extra-European Countries featured by systems of law, that similarly to Afghanistan rely on a mixture of State Laws, Personal, and Customary Laws to highlight the extent to which these systems affect women’s human rights and, especially, those of minority women

Regulating the Smart City in European Municipalities: A Case Study of Amsterdam

This article studies how local governments interface with the adoption of smart city initiatives, and the challenges this poses from a public law perspective. Although every smart city develops within an administrative territory regulated by a local government, this dimension often remains overlooked in legal and smart city literature. Municipal governments can act as regulators through their existing competences in spatial planning, environmental protection, local by-laws, financial subsidies, and partnerships. However, through an analysis of the Amsterdam Smart City program, this article shows that the smart city challenges this traditional role as regulator. Specifically, it observes four elements: (1) fragmentation, (2) networked governance, (3) multilevel governance, and (4) experimentation. These elements illustrate four challenges for the role and position of municipalities in the smart city: (1) collaborating across municipal departments, (2) steering smart city programs through public-private networks, (3) navigating the limits of local government’s powers on smart city issues, and (4) experimenting with new forms of public procurement. These challenges push municipal governments to find new ways to fulfil their role as public authorities, such as the creation of new municipal departments, the development of soft law instruments, and the use of innovative procurement. Legal research needs to examine these shifts in a context where citizens’ rights are put under pressure. smart city, municipal government, local government, public-private partnerships, networks, governance, privatization, digitization

КОНЦЕПЦІЯ ЮРИСДИКЦІЇ У МІЖНАРОДНОМУ ПРАВІ

The article analyzes the notion and types of jurisdiction in the doctrine of international law as well as in treaty law and international court practice. The author considers main restrictions of jurisdiction of a state within national boundaries and in international territories as well as the issue of conflict of jurisdictions from the perspective of Public and Private International Law. The article concludes that modern legal doctrine and treaty law witness that jurisdiction has become an established institute of international law which has its own principles and sources; it embraces all branches of international law and, thus, may be characterized a system-wide institute of international law.

Constitutio posterior non derogat pactis prioribus? Chiles völkerrechtliche Verträge im Kontext der Verfassungsablösung

Chile’s International Treaties in the Context of the Replacement of the Constitution From a public international law perspective, the domestic process ideally does not affect treaty obligations. Already in normal times, however, there are innumerable options to retreat from treaties. The exceptional case of constitutional replacement hardly extends these. Could the ‘eternity clause’ of 2019 (Art. 135 IV of the Chilean Constitution), which states that the contents of international treaties are to be respected, subject the Constitutional Convention to stronger ties than international treaty law itself? This article rejects readings that tried to perpetuate the substantive content of the treaties or to forbid changes that would make termination of treaties necessary. The lack of justiciability and the principle of truthfulness of norms speak against them. The clause only warned to proceed in a manner that is gentle on international law. Based on this, the third part shows Chile’s wide margin to cancel or alter existing treaty regimes and sees opportunities for respect of treaties by practical concordance and the activation of secondary legal protection in accordance with international law in the event of contradictions that cannot be resolved in accordance with treaties.