Laws Research Articles

Правовое регулирование внедрения и использования наилучших доступных технологий в сфере охраны атмосферного воздуха

Purpose. In the modern world, the problem of legal protection of atmospheric air is one of the most serious, and therefore it is necessary to conduct a study of the best available technologies as a key tool for the protection and protection of atmospheric air, analyze the legislation of individual foreign countries, as well as the European Union as a whole, as well as great attention pay attention to the Russian legal regulation of this issue, based on their prerequisites for the implementation of this principle, as well as the practice of its application. In addition, it is important to identify and highlight the main problematic issues in this area and propose ways to solve them. Methodology: analysis, synthesis, comparison, induction, deduction, formal – legal, historical. Conclusions. The introduction and application of the best available technologies constitute one of the most important principles of environmental law. Despite the fact that some decisions of the legislator can be called hasty and inconsistent, the new legal regulation introduced into Russian legislation in 2019 requires a fairly long transition period, during which it will be possible to note shortcomings and also analyze the conditions for implementation. Scientific and practical relevance. The article is aimed at studying foreign legal norms and current changes in Russian legislation regarding the legal regulation of the introduction and application of the best available technologies in the field of atmospheric air protection, which will highlight key problems and develop ways to solve and overcome them.

Specifying the Elements of the Political, Social and Economic Democracy in Kuwaiti Constitution

The purpose of this research is to see how far the Kuwaiti constitution has taken from the two paradigms of democracy, based upon principles of free individual enterprise and socialists. As well as, the aim of this research is to identify the main principles of Kuwaiti constitutional law in the context of the political and social values that influence their development. The main theme underlines this research is to compare the articles of Kuwaiti constitution in the aspects of the social and political system with the United Nation's Universal Declaration of Human Rights, Islamic Sharia Law and other Human Rights declarations, which particularly relate to the political freedoms and underpin democracy. These include freedom of expression and assembly, access to information, and national security.

Whose war is it anyway? Proportionate reparations in wars of aggression

Abstract This article proposes a hybrid legal framework combining jus ad bellum and jus in bello to govern the attribution of State responsibility for reparations at the end of a war of aggression. To this end, the article considers former international mass claims processes and proposes a complementary approach that, on the one hand, acknowledges the role of the aggressor State in waging the war, and on the other, takes a cautionary approach to prevent a disproportionate burden of compensation being imposed on the aggressor State as a form of collective punishment. The consequences of respective violations of the prohibition of the use of force and the law of war are blurred in a war of aggression, resulting in complexities around liability for aggressor States. In response, this article concludes with a nuanced proposal to calculate compensation based on (1) the aggressor party's capacity to comply with jus in bello; (2) the extent of damage caused by the war of aggression, factoring in jus ad bellum considerations if a party is found to be intentionally maximizing destruction; and (3) the incorporation of tort law principles for equitable attribution of responsibility.

Tracing the Application of Modern Principles of International Humanitarian Law in the pre-Christian War between King Duṭugamunu and Elāra in Sri Lanka

The war between King Duṭugamunu and Elāra is the most significant singular war that took place in the pre-Christian period in Sri Lanka. It has the elements of modern international armed conflict (IAC). A local monarch waged it to unify the nation against an invading foreign force led by a foreign ruler who seized power through regicide. This historical conflict sparked extensive debates, criticisms, and varying interpretations, contributing to distortions of factual accounts. The studies analysing this battle from the perspectives of the modern International Humanitarian Law (IHL) is minimal. The branch of public international law that deals with IAC is International Humanitarian Law (IHL). The research problem that was investigated is 'Did the Sri Lankan monarch comply with the modern principles of international humanitarian law when there were no such laws at that time in the world and thereby, does that monarch deserve to be called as the founder of IHL? Accordingly, this study aims at analysing the motives, intentions, and conduct including the pre-conflict, in-conflict, and post-conflict behaviour of key actors and the war's outcome from the perspectives of IHL. The methodology used for this study is literature review. It is qualitative and interpretative in nature. The historical sources, international conventions and national legislations were used as primary and secondary sources for this purpose. The focus of the analysis is the evaluation of IHL principles in the context of the historical war. This study provides a unique analysis that suggests the application of principles akin to modern IHL by the ruling monarch nearly two millennia before the formal establishment of such principles. The major finding is that some 2019 years prior to the international community introduced the modern IHL principles such as humanity, avoidance of unnecessary suffering, proportionality of damages, humane treatment of prisoners of war (POW) etc., the ruling Sri Lankan monarch has recognised and applied them in this war and has recognised the new principle of Eternal Honour to POWs which is yet to recognise by IHL. Keywords: Humanitarian; International; Law; Vijiṭapura; War

THEORETICAL FOUNDATIONS OF SENTENCING FOR MULTIPLE OFFENSES

This article analyzes issues related to the theoretical foundations of sentencing for multiple offenses. The article also examines the unique aspects of sentencing, including the application of principles that exist simultaneously in various areas of law. Specifically, the article highlights the application of general legal principles (legality, equality before the law), criminal law principles (justice, humanism, democracy, culpability, etc.), as well as special principles of criminal procedural law (administration of justice exclusively by the court, implementation of justice based on equality of citizens before the law and the court, respect for the honor and dignity of individuals, etc.) in the sentencing process.

The Controversy of Siyahi Marriage: A Maqasid Shariah Perspective and Its Relevance in Indonesia

The phenomenon of Nikah Siyahi, or temporary marriage during travel, has become a controversial topic in Islamic law. This practice is often carried out by Muslim travelers to enjoy sexual relations without violating religious principles. However, scholars have diverse opinions regarding Nikah Siyahi. Some endorse it as an alternative to avoiding zina (fornication), while others reject it for undermining fundamental values of marriage, such as commitment and purity. This study aims to explore Islamic legal perspectives on Nikah Siyahi and analyze the impacts of this practice through the lens of Maqasid Shariah, which are the primary principles of Islamic law intended to protect religion, life, lineage, property, and intellect. The research employs a library research method to gather views from various literatures on Islamic law. Although it may formally meet the requirements of Islamic marriage, Nikah Siyahi fundamentally contradicts the ideal objectives of marriage in Islam. From the perspective of Maqasid Shariah, this practice can have negative repercussions on the dignity of religion, mental health, family stability, and the rights of offspring. In Indonesia, where marriage law is clearly regulated, this practice brings more harm than benefit. Therefore, the enforcement of law and community education regarding the essence of marriage in Islam must be strengthened to protect fundamental values of Shariah

Hak Perempuan dalam Amar Putusan Cerai Menurut Perspektif Maqashid Syari’ah pada Pengadilan Agama Kuala Tungkal Kelas 1B

This study discusses women’s rights in divorce decisions at the Kuala Tungkal Class 1B Religious Court based on the perspective of Maqashid Syari’ah. Women’s rights decided in divorce, such as iddah maintenance, mut’ah, child custody, and property division, are analyzed in terms of their suitability with the main objectives of Islamic law, namely protection of religion, soul, descendants, mind, and property (Maqashid Syari’ah). This research uses qualitative methods with the normative legal approach. to examine court decisions and how the laws applied reflect the principles of Maqashid Syari’ah. The results of the study indicate that divorce decisions at the Religious Court have considered women’s rights proportionally, although there is still room for further adjustment to be more in line with the essence of Maqashid Syari’ah, especially in terms of economic protection and gender justice. This study recommends the need to strengthen the integration between positive law and sharia principles to better guarantee women’s welfare after divorce.

Theoretical Analysis of Self-Shrinkage Spheroidization of Irregular Degradable Polymer Powder under Thermodynamic Nonequilibrium State

Laser three-dimensional (3D) printing offers significant advantages in integrating the shape and function of regenerative tissues through biomimetic manufacturing. However, its effectiveness is limited by the lack of specialized biopolymer powders—while solvent methods that use residual solvents produce powders with poor biocompatibility, mechanical methods result in irregularly shaped crystals. In this study, a biopolymer powder spheroidization and shaping technology, which utilizes the evolution of irregular powders into spheres with minimal surface free energy in the molten state, is proposed based on the thermodynamic principle of minimum energy. Initially, the motion trajectory and temperature field of the poly(L-lactic acid) (PLLA) powder during spheroidization were quantitatively assessed and optimized using Stokes’ law and Fourier's principle. Subsequently, the cohesive forces and aggregation kinetics of the polymer chains were calculated using molecular dynamics. Finally, based on these calculations, a phase-field model was constructed to simulate the evolution of the spheroidization rate and deduce the optimal parameters for the process. This precise approach enhances PLLA spheroidization control for laser 3D printing, improves part densification and surface quality, and offers a clean and efficient path for preparing high-quality PLLA spheroidized powder for laser 3D printing.

Penerapan Kaidah Fiqh dalam Hukum Media Sosial di Era Globalisasi Ilmu Pengetahuan dan Teknologi

The globalization of science and technology continues, especially on social media. On the one hand, the benefits of various conveniences are also clearly felt to cause harm. The research examines social media laws and the limitations of their use concerning fiqh rules. This research includes normative legal research methods with a conceptual approach in the form of Islamic law principles. The study concludes that the original law of social media is permissible (permissible) and will change to be recommended if it brings benefits and change to be forbidden if it causes damage. However, the potential for harm in social media exists, so there must be limits to its use and regulatory restrictions, especially restrictions that apply widely in society through state policymaking. The research results can be considered when responding to developments in technology and information, especially regarding social media, so that we can use social media more wisely. Keywords: Social Media Law, Fiqh Rules, Era of Globalization of Science and Technology

Structure, Conduct, Performance (SCP) Approach & Fairness Principle in Business Competition Law in The Era of Digital Platforms

The emergence of digital platforms has led to disruptions that affect not only technological and economic aspects, but also legal aspects, particularly business competition law. The discourse surrounding the development of digital platforms within the context of business competition has been influenced by two major schools of thought: the Chicago School, which adopts an effeiciency approach (also known as the consumer welfare approach) , and the Harvard School, which employs the structure, conduct, and performance (SCP) approach. This article aims to scrutinize the shortcomings of the efficiency approach advocated by the Chicago School in addressing the issues related to business competition in the digital platform market. Additionally, it seeks to demonstrate how the principle of fairness, based on the competitive process approach and market strcture, can serve as a more comprehensive analytical tool for evaluating the health of competition in the market. The results show that the efficiency approach is inadequate in addressing concerns of fairness in the digital market. Responding to the context, global business competition authorities have begun to promote a fairness approach to bolster SCP approach which serves as a moral underpinning for upholding the principles of healthy business competition in the digital platform era. This article applied normative legal research methods with a conceptual approach for analysis.

TECHNOLOGY AND LEGAL CHALLENGES OF CONTEMPORARY ARMED CONFLICT

The purpose of the article is to research the relationship between IHL, IHRL and national law norms, and to give recommendations about the prevention of using technologies in contemporary armed conflicts. Research methods: in the article, the research was carried out using the comparative-legal method in order to present the relationship between international and national legal norms. Also, we will use the normative method to emphasize the need of introduction of new norms to regulate the problem. Results: after the World War II, adoption of the new international norms significantly decreased the war statistics, however, in recent years, development of technologies, which was further accelerated by the pandemic, changed the mentioned statistics, to the extent that new technologies are actively used in war. Unfortunately, preventive and/or prohibitive international norms do not exist, therefore, we do not have the practice of regulating them. Paucity of regulative norms and the absence of proper literature in this field underscores the relevance of this topic. The use of new technologies can lead to violations of the principles of international law and human rights, which requires the creation of preventive mechanisms within the framework of international law. Discussion: the relevance of the topic is also determined by the war situation in the world, which reminds us that against the backdrop of challenges in international law, there is a gap in terms of illegal integration of technologies in contemporary armed conflicts, which, as a result, leads to a breach of human rights and violation of the norms of both the Geneva Convention and the European Convention on Human Rights.

Səhiyyə sahəsində beynəlxalq hüquq normalarının milli hüquqi implementasiyasının prinsipləri

The article examines the principles of national legal implementation of international legal norms in the field of healthcare. It shows that those principles serve the coordination of international legal norms and national legislation in the field of healthcare. In this process, the role of universally recognized principles of international law is determined. The necessity of the recognition of international legal norms’ supremacy in order to ensure the mentioned coordination is emphasized. It is noted that this is possible in case the public order of the national legal system is not violated. Keywords: healthcare, principles, international legal norms, national legal implementation, legislation, national legal system.

INVESTMENT POLICY OF KAZAKHSTAN IN THE CONTEXT OF ESG PRINCIPLES

This article examines the role of ESG principles in international investment law and their increasing importance for the formation of investment policy in Kazakhstan. Attention is drawn to some progress in the implementation of ESG principles, however, this policy is multidirectional, and there are a number of tax and socio-economic disadvantages. The author draws attention to the specific advantages of introducing these principles into investment policy: increasing investment attractiveness, access to new sources of capital, etc. Using the example of a number of large investment proceedings, the importance of these principles is emphasized, and attention is also drawn to the features and complex nature of legal proceedings in this category of investment disputes. The article also notes potentially high reputational risks in international investment proceedings. In this context, ESG principles should be considered as a tool to reduce these types of country risks. The author relies on an article by candidate of legal sciences, associate professor Zh. Kulzhabaeva, which outlines the economic significance of the criteria of feasibility and efficiency. Drawing attention to the significance of the proposed concept, the author proposes to take into account the principles of ESG. This combination will give the investment policy a certain balance and sustainability in the long term. In the final part, the author draws attention to the versatility of the ESG concept and the need to pay attention to a number of issues that have a decisive influence on the degree of implementation of ESG principles and, accordingly, on the sustainability of the state’s investment climate

Panai Tradition in Bugis Makassar Society in Bima: Islamic Law Perspective

This research aims to find out how the panai tradition of Islamic law is reviewed in the marriage traditions of the Bugis tribe of Makassar in Bima. This research uses descriptive qualitative research with a normative sociological approach to field studies. The collection techniques are observation, interviews and documentation. Meanwhile, data analysis processing techniques use reduction, data presentation and conclusions. The results of this research show that first, the Bugis Community in Makassar has two elements that cannot be separated in the marriage process, namely the man not only gives the dowry but also gives panai. If one of the parties commits a violation after the application and cash payment process has been carried out, then one of them will be subject to a fine. Second, judging from Islamic law, marriage is subject to the application of panai as one of the mandatory requirements in traditional marriages of the Bugis tribe which does not violate the pillars and conditions of marriage in Islamic law, because the tradition of giving panai is by the principles of Islamic marriage law because it contains the principle of consent and agreement between the groom and the bride in determining the value of the panai.

개인정보자기결정권과 이익형량 - 대상판결: 대법원 2016. 8. 17. 선고 2014다235080 판결 -

The Personal Information Protection Act (PIPA) stipulates stringent controls over personal information. Data processors are, in principle, prohibited from collecting or processing personal information without the data subject’s consent. This grants the data subject exclusive control over their personal information, which can be compared to the rights of a property owner. However, personal information covers a wide range of data, including neutral information unrelated to the secrecy of private life. Furthermore, since concepts like "identifiability" are vague and indeterminate, it is not easy to define the exact scope of personal information. This suggests that a more flexible approach to protecting personal information is required. The right to control personal information remains abstract, retaining much of its idealistic and declaratory nature from its initial advocacy. As such, this right must consider not only the need for information control but also the public's access to information, freedom of expression, the technological and industrial utility of information, and the interests of data processors who collect and process that information. In the case under review, the data processor collected and provided publicly available personal information without the explicit consent of the data subject. While this may partially limit the data subject's right to control their personal information, the general public interest in utilizing publicly available personal information must also be considered. The current PIPA does not provide a clear legal basis for the broad utilization of publicly available personal information. Justification for such use must instead be found in the general principles of civil law, such as those in Articles 2, 103, 750, and 751 of the Civil Act, along with the balancing of competing interests. This was the general approach to protecting the right to control personal information under Korea's legal system before the enactment of the PIPA, and it remains applicable even after its implementation.

Observance of the labour rights of persons who have been deprived of their personal liberty as a result of armed aggression

Based on the monitoring of the Ukrainian Parliament Commissioner for Human Rights, the article reveals the state of observance of labour rights of civilian hostages. The article identifies problematic issues that obstruct the realisation of these rights of persons who have been deprived of their personal liberty as a result of armed aggression. It is noted that the Geneva Convention relative to the Protection of Civilian Persons in Time of War prohibits the taking of hostages. Failure to comply with the principles of international humanitarian law by representatives of the Russian Federation leads to the inability to ensure the protection of civilian hostages in accordance with international norms due to the unresolved nature of this issue. The Russian Federation, despite international norms, keeps such persons in captivity, does not notify them of their detention, does not provide them with the appropriate status, as a result of which the detained person cannot appeal against his or her detention, has no opportunity to report it. According to international standards, victims of enforced disappearances have the right to compensation from the state, which provides them with the maximum possible rehabilitation. It is noted that the protection of the constitutional rights of civilian hostages is provided for by the Law of Ukraine “On Social and Legal Protection of Persons in respect of whom the deprivation of personal liberty as a result of armed aggression against Ukraine and members of their families has been established”. In addition, it is noted that civilian hostages have the right to keep their jobs, but the law does not provide for the payment of wages. The article establishes that it is impossible to properly exercise the labour rights of employees who have become civilian hostages guaranteed by the Constitution of Ukraine. The emphasis is placed on the legislative gaps that do not allow civilian hostages to exercise the guaranteed right to credit their insurance period. The article provides for the crediting of insurance periods to civilian hostages, which affects social guarantees and, subsequently, the level of pension provision. Due to the uncertainty of the payer of the unified social contribution, such credit is not given for persons in respect of whom the deprivation of personal liberty as a result of armed aggression against Ukraine has been established. Deprivation of personal liberty is the basis for postponement or extension of annual leave and is also included in the length of service that gives the right to annual basic leave. Civilian hostages are additionally entitled to a one-time voucher to maintain their competitiveness in the labour market through retraining, specialisation, advanced training, and education in professions and specialities for priority economic activities. It is found that the problem of civilian hostages is closely related to the problem of missing persons. It is proved that there is a need to expand the labour rights of civilian hostages by guaranteeing the payment of wages.

THE PROCESS OF CONSTITUTIONALIZATION OF INTERNATIONAL HUMAN RIGHTS LAW AT THE REGIONAL LEVEL: THE CHALLENGES OF THE EUROPEAN COURT AND THE INTER-AMERICAN COURT OF HUMAN RIGHTS

This article discusses the process of constitutionalization of international law, based on an examination of the case law of the European Court of Human Rights (ECHR) and the Inter-American Court of Human Rights (IACHR). Through a bibliographical review, the objectives were to present the idea of ​​constitutionalization at the international level, based on an examination of the precedents of regional protection systems; then, the aim was to analyze the consolidation of the use of the constitutional perspective by the ECHR and the IACHR in their judgments. As a hypothesis, it is believed that regional protection systems develop the constitutional approach to international law through their judgments on human rights. Filling gaps in conventional international law, resorting to custom to prove its existence and the possibility of exercising “conventionality control” in cases related to human rights violations are some of the ways in which certain situations are subject to law and its jurisdiction. As a result, it was found that the hypothesis was partially confirmed. By examining the cases, it is clear that each regional system for the protection of human rights has a specific characteristic, within which it must act for the constitutional development of international law. In this regard, it can be inferred from the examination of the cases of the ECtHR and the Inter-American Court of Human Rights that the constitutionalization of international law can be constructed from both bottom-up and top-down perspectives, using the sources of international law – customs, the case law of the regional courts themselves and the general principles of law – to fill the gaps in the international legal system.

RESPONSIBILITY OF MEMBERS OF SELF-REGULATING ORGANIZATIONS: PECULIARITIES AND PROBLEMS OF REGULATION IN THE REPUBLIC OF KAZAKHSTAN

In the scientific literature, the understanding of the legal nature of the responsibility of members of self-regulating organizations causes conceptual discrepancies. This liability is considered as a separate type of legal liability based on civil law principles. In the laws regulating issues of self-regulation with mandatory participation, the concept of disciplinary misconduct is used, which leads to the use of the name of this responsibility as «disciplinary». Nevertheless, the special grounds for the liability of members of a self-regulating organization, the subject composition and the nature of legal relations make it possible not to identify the responsibility in question with disciplinary liability in labor and administrative law. The Law on Self-Regulation and legislative acts concerning mandatory self-regulation contain the basics of regulating liability issues, but these norms need to eliminate contradictions. In addition, it is necessary to provide for the definition of the concept of responsibility of members of self-regulating organizations and its elements (misconduct, penalties). The study of internal documents of self-regulating organizations in terms of the responsibility of their members revealed the inconsistency of the content of the documents with certain requirements of the Law on Self-Regulation. Based on the results of this work, the specifics of the responsibility of members of self-regulating organizations are noted, the features and shortcomings of the regulatory regulation of this institution in the Republic of Kazakhstan are identified, facts of violations of legal norms in law enforcement practice are revealed, and differences in the approaches of organizations to choosing the procedure for bringing to responsibility and determining liability measures are established. Solutions are proposed for the identified shortcomings. The conclusions obtained in the course of this study can be used in scientific research and legislative work.

Legalitas Drone (Pesawat Tanpa Awak) Sebagai Alat Melakukan Mata-Mata Dalam Perang

Introduction: The use of drone technology as a weapon of war raises several problems, both in terms of action and consequences. In terms of action, when drones are used as weapons, participants in armed conflict are no longer just humans fighting each other, but between (non-living) robots against living (humans). Apart from the legality of war and the use of drones as weapons of war, drone attacks can be carried out secretly, at any time and without the knowledge of the enemy.Purposes of the Research: This writing aims to examine and find out the use of drones (unmanned aircraft) as a tool for espionage in International Humanitarian Law and more specific rules regarding the use of drones (unmanned aircraft) as a tool for spying in war.Methods of the Research: The type of research used in this paper is normative legal research. As for answering the problems in this study, the authors use three approaches to the problem, namely the statutory approach (statute approach), conceptual approach (conceptual approach) and case approach (case approach). The procedure for collecting legal materials carried out by the author is by searching for and collecting laws and regulations related to the legal issues at hand. Legislation in this case includes both legislation and regulation. Analysis of legal material uses qualitative methods, namely studies related to legal norms contained in international law legislation and legal norms that exist in society.Results of the Research: The results of this study indicate that the use of drones (unmanned aircraft) as a tool to carry out espionage in International Humanitarian Law, is contained in Article 36 of Additional Protocol I to the 1977 Geneva Convention. Article 36 intends to maintain the development of weapons used both by countries and international organizations to continue to respect, maintain and not cross the boundaries of existing international humanitarian law principles. The current arrangement is too old and cannot be definitively binding. The use of drones as weapons has been carried out in the absence of an adequate legal regulation on this matter, Article 36 of Additional Protocol I of 1977 only contains general matters regarding the development of weapons technology and methods of warfare, but does not specifically and specifically regulate the use of drones. The absence of legal rules that specifically and specifically regulate the use of drones, which relate to their use as weapons, this will open up enormous opportunities for misuse and violations of international humanitarian law.

Unfair competition law in Ghana: unravelling the scope, evolving jurisprudence, challenges and future directions

Abstract Despite its implications for businesses and consumer welfare, unfair competition law has received limited scholarly attention in Ghana. This article fills a significant research gap by examining Ghana’s legal framework for unfair competition, focusing on legislative measures and court decisions in an attempt to facilitate comprehensive academic inquiry into the subject. The article explores how Ghana addresses unfair competition in line with international standards, particularly Article 10bis of the Paris Convention and the Trade-Related Aspects of Intellectual Property Rights Agreement. It assesses how Ghanaian courts have developed unfair competition protection jurisprudence over time with co-existing statutory and common law regimes. Additionally, it highlights the challenges in applying the law and areas for improving it. The study demonstrates how Ghana adopts various approaches to unfair competition, comprising a single source statutory reference point which coexists with the common law tort of passing off. The statutory approach, alone or with the other approaches, meets Ghana’s international obligations. However, there is a need for coherence and effectiveness in the interaction between statutory law and common law principles. Understanding this interaction is essential for ensuring Ghana’s consistent and effective application of unfair competition laws.