Law Project Research Articles

The State and International Law: A Reading from the Global South

In this essay we re-describe the relationship between international law and the state, reversing the usual imagined directionality of the flow between the two. At its most provocative, our argument is that rather than international law being a creation of the state, making the state is an ongoing project of international law. In the essay, we pay particular attention to the institutionalised project of development in order to illuminate the ways in which international law gives form to, and actualises, states, and then recirculates from a multiplicity of points "within" them.

Consideration of the operational change after constraction in the projects of the Environmental Impact Assessment Law

Consideration of the operational change after constraction in the projects of the Environmental Impact Assessment Law

The Most Important Legislative Amendments Related to the Effect of the Contract Towards the Third Party in the French Civil Code Amended in 2016 and 2018

The French decree no. 131/2016 promulgated on Feb.10, 2016, and the Law no. 287/2018 promulgated on April 20, 2018 have amended many issues in the French Civil Code, including the doctrine “the contract has effect towards the parties only”. However, this doctrine is not very clear, and needs to be interpreted according to the new legislations. This shall include the idea that “the third party shall respect the legal status created by the contract”, and the idea that the third party can benefit from the legal status created by the contract as well. The doctrine according to which the simulated contract does not have effect towards the third party, and the nullity of the contract that simulates the true price, and how the amendments of the articles 1199 and 1200 of the French Civil Code affect the courts decisions that allow the third party to oblige the seller to execute the sale contract. It is also important to mention the conditions that allow the third party to sue for damages, the debtor who did not perform his/her contractual duties. We would like also to mention the opinions of the Law projects makers, and to compare the laws with the UAE Civil Transactions Law. The new doctrine of “binding himself on behalf of a third party” and the doctrine of “stipulation for the benefit of a third party” shall be interpreted according to the new legislations.

To the question on the need for expansion of administrative legal regulation of family relations

The object of this research is the questions of ensuring protection of persons from domestic violence in the Russian Federation. The subject of this research is the administrative legal relations associated with legislative establishment and practical implementation of the necessary means for prevention domestic violence. The author explores a number of other relevant steps towards expansion of administrative legal regulation in the Russian family relations, which pursue the goal of establishing administrative legal guarantees in the Russian Federation from unjustified intrusion into the family’s affairs. The application of formal-legal methodology based on the analysis of legal categories and constructs allowed determining the role and significance of administrative legal means for prevention of domestic violence proposed in legislative projects. The importance and novelty of the conducted research consists in comprehensive assessment of the provisions of the Federal Law Project “On Prevention of Domestic Violence in the Russian Federation” and introduced recommendations on its improvement. The relevance is defined by the fact that the problem of “domestic violence” has not previously been an object of due attention on behalf of the government.

From Classical Liberalism to Neoliberalism: Explaining the Contradictions in the International Environmental Law Project

This paper provides a critique of the development of international environmental law, showing the influence of ideologies of classical liberalism, welfarist liberalism and neoliberalism on key legal texts. Sharing the assumptions of critical approaches to law and applying a methodology in line with ideology critique, this paper is aimed at deconstructing the prevailing Western understanding of the positive evolution of international environmental law towards better environmental protection. First, it describes the classical liberal understanding of nature and concepts to address environmental problems before World War II through the example of fisheries agreements. Second, it moves to the influence of welfarist liberalism on international law following World War II, which gave rise to several environmental instruments, especially marine pollution agreements, and later the Stockholm Declaration. Third, it looks at the conceptual shift under the influence of neoliberalism that occurred in the 1990s in the Rio Declaration as well as in the biological diversity and climate change regimes. As the paper shows, instead of changing the problematic understandings of nature in international law, international environmental law relies on these liberal classical understandings and further exacerbates the instrumentalization of nature with the focus on economic rationality, and favouring cost-benefit analysis, deformalization of law, deregulation and self-regulation by private actors, management by experts, and market mechanisms to address environmental problems.

International Legal Histories as Orders: An Afterword to Martti Koskenniemi’s Foreword

Abstract In this article I address the question of what Martti Koskenniemi refers to in his EJIL Foreword as Hugo Grotius’ legal imagination – the type of values he was trying to convey and the strategies he meant to pursue while constructing his idea of an international legal order. As a matter of fact, focusing on such an apparently narrow aspect is not just relevant to those with a historical interest in Grotius. It also tells us something about the inveterate relationship between international law and historiographic practices. What I want to suggest here is that the history of international law is not just an a posteriori critical reflection on the international legal order – a subgenre for lovers of intellectual escapism in search of a distraction from the many problems of the contemporary world – but, rather, that one of the many successful projects of international law was (and still is) the ambition to order the world through histories.

The President's Two Bodies

The President has “two bodies.” One body is personal, temporary, and singular. The other is impersonal, continuous, and composite. American public law reveals different perspectives on how to manage—but cannot escape—this central paradox. Our major disagreements and confusions about presidential power track what we might think of as the fault lines between these two bodies. An array of seemingly disparate debates on topics ranging from presidential impeachment, to the ownership of presidential papers, to the availability of executive privilege, to a presidential duty to defend statutes in court, to the legal status of presidential tweets, to the role of the White House counsel, to the nature of presidential intent, to the legal remedies available for presidential misconduct reflect this longstanding, ongoing ambivalence about the nature of the presidential office. The goal of this article is to make the President’s two bodies central to American public law. Recognizing the two bodies provides analytical coherence to the structure of presidential power. It illuminates both our contestations over, and the constituted reality of the constitutional presidency. The President’s duality brings into view traces of a personal, charismatic authority simultaneously in deep tension with and fundamentally constitutive of the institutional presidency. It reconstructs seemingly far-flung aspects of American public law (ranging in form from Founding-era debates, to judicial decisions, to statutory enactments, to presidential norms) as a shared effort to negotiate the President’s two bodies. And it illuminates what is at stake—for presidential legitimacy, for governmental capacity, for checks and balances, and for our substantive constitutional commitments—in how public law handles this defining ambiguity. Ultimately, the legal lines connecting the two bodies cannot emerge from the duality itself. Rather, it is a normative project of public law to construct them—and to do so in furtherance of articulated substantive commitments. Even as the two-bodies prism reveals a crucial role for public law in constituting the office of the President, it shows as well the limits of law and legal methods in managing its central tension. Presidential charisma is both inseparable from American constitutionalism and itself governed—incompletely and provisionally—by choices that lawyers and jurists make about how to construct the President’s duality.

조선 광해군대 궁궐공사에 대한 이해와 서술 - 사실, 연구, 교육의 거리와 괴리 -

In historiography, there are discrepancies between historical facts and historical researches, and gaps between historical researches and history education. The Historiography is a field of study examining historical facts, yet such examination(research) is always accompanied and even affected by the interests and interpretations of the examiner, and education is often required to reflect the needs of the society or even that of the state. In this article, the palace construction projects in King Gwang’hae-gun’s reign is chosen as a subject which maybe useful in our examination of how facts, research and education could interact with each other either harmoniously or contentiously. BR In a society based on agricultural economy, concentrated fiscal investment is inevitable, so palatial constructions (which tend to distract resources from such effort) often threaten the stability of the system or even the regime itself. So quite early on, historians took notice of all the palatial constructions that continued during King Gwang’hae-gun’s reign. Adequate understanding and appropriate evaluation of this particular subject is crucial in determining the nature of politics that was maintained during his reign, and in understanding the ramifications of the two Horan wars that broke out during King Injo’s reign, as palatial constructions were oftentimes cited as a major catalyst for the fall of Gwang’hae-gun and the restoration staged by King Injo.BR Palatial constructions should not be examined as an isolated project, but as an event that was interconnected with other political conditions unfolding in and out of the country. First of all, these construction projects had certain influences upon the reform efforts of the tribute system, and especially the initiation of the Seonhye-beob(宣惠法) law. Second, these constructions not only hampered the above-mentioned tributary reform efforts, but caused the need for further and additional taxation. Third, it pushed local authorities’ fiscal situation almost over the edge. Fourth, prevalent at the time were provisions and receptions of necessary materials and resources, which also strongly suggests coerced submission from the weak. Fifth, even governmental seats became objects of deals, in a clandestine effort to secure money to pay for all these construction costs. Six, Gwang’ hae-gun himself was so immersed in the project, even to the extent of being derelict in his other duties. Seventh, at a time of the Hugeum rising as a new force in the north, diverting vital resources to construction projects did weaken the dynasty’s overall defense. Considering all this, it was only natural for all the scholars to be extremely critical of Gwang’hae-gun era’s palatial constructions.BR However, such understanding of the academic society is yet to be reflected in history textbooks for Middle schools as well as High schools. Current guideline for the Middle & High school History textbooks only dictate that contents underlining notions like ‘Economic policy was designed to enhance public stability (through Daedong-beob law and Land Survey projects)’ or ‘Neutral Diplomacy was upheld,’ should be included in the narrative of the textbook, while Gwang’hae-gun’s demoting of his stepmother, his killing of his own half-brother(廢母殺弟), and all the palatial constructions mentioned above, are never elaborated. The omission of this period’s such aspects borders on distortion of historical truth of this period in general.

PECULIARITIES AND PROCEDURE FOR PILOT DECISION OF EUROPEAN COURT OF HUMAN RIGHTS

As the title implies the article describes pilot decisions of the European Court of Human Rights and relevance pilot decisions for the Ukrainian legislation. In the process of emergence as a European state, Ukraine needs effective enforcement decisions of the European Court of Human Rights. The decisions of European Court in lawsuits against Ukraine protect human rights. By the court decision Ukraine is obliged to pay monetary compensation. The pilot decisions of European Court of Human Rights play an important role. The pilot decisions aimed at improving Ukrainian legislation and will oblige Ukraine state to pay money to a person for the damage done. Moreover, executing a pilot decision, Ukraine passed the law «On the state guarantees regarding the enforcement of court decisions» of 05 June 2012. This law establishes state guarantees for the implementation of court decisions on the recovery of funds from the debtor. The debtor is a state agency. So Ukraine complied the provisions of the Convention for the Protection of Human Rights and Fundamental Freedoms. The Cabinet of Ministers of Ukraine adopted the resolution № 440 «On approval of debt repayment by court decisions, and enforcement of which is guaranteed by the state» of 03 September 2014. Purpose: to carry out a comprehensive description of the pilot decisions of the European Court of Human Rights. Investigate the legal regime of pilot decisions adopted by the European Court of Human Rights in lawsuits against Ukraine and evaluate their impact on amendments to current legislation. Research methods: used methods of analysis, comparison and synthesis, theoretical and legal modeling, cognitive-analytical and data collection systems. The results: obtained the conclusion that the pilot decision of the European Court of Human Rights requires the Ukrainian state to make changes to Ukrainian legislation. Discussion: the necessity of developing law project to legislation of Ukraine having regard decisions of the European Court of Human Rights. Moreover, there is a need to develop new draft legal acts of Ukrainian legislation.

The ‘Islamic’ Deployed

Abstract This Fieldnote challenges scholars of Islam and Muslims to consider how the production of knowledge on Islam and Muslims has long been, and continues to be, intimately associated with projects of governance, whether by the modern state or premodern regime. The present is simply a particularly robust historical period during which, wherever one might stand on the political spectrum, the study of Islam is undertaken in the shadow of the state—a disaggregated project of law and justice, border control, national security, and regulation. This Fieldnote recasts Islam and Muslim in an adjectival sense—‘Islamic’ and ‘Muslim’—in order to highlight their variability in relation to the purposes for which they are deployed. To better understand the dynamics by which the ‘Islamic’ is deployed for purposes of state projects, this Fieldnote outlines four registers of analysis—time, space, scale, and rhetoric—to inspire new research on the production of knowledge in the academic study of Islam and Muslims today.

Infrastructure and InfraReg: on rousing the international law ‘Wizards of Is’

Physical, informational and now digital infrastructure features throughout Nation-State consolidation and imperial extension, in war preparedness and war logistics, in resource extraction and energy capture and transit, in each quantum step in economic globalisation, in mass migrations and religious missions, in the global scaling of finance and financialisation, in the global digital economy, in artificial intelligence (AI) and robots, in economic development strategies and in China's vast Belt and Road Initiative. International law has largely aligned with these enterprises, but has seemed not effectively to address massive anthropocenic degradation, AI, new biotech, and the human and planetary consequences of extractive capitalism. Science and technology studies, and work extending from Bruno Latour and Susan Leigh Star to governance-by-prototype and ‘new materialism’, have generated rich insights about infrastructure. These are being extended to ‘infrastructure as regulation’ (the infra-reg project). This paper explores implications for reinvigorating deliberative forward-planning international law projects to address technologically driven transformation, which follow from ‘thinking infrastructurally’.

The Malabo Protocol, the ICC, and the Idea of ‘Regional Complementarity’

Abstract The African Union (AU) has taken steps to regionalize international criminal law through the expansion of the African Court of Justice and Human Rights (ACJHR) vis-à-vis the Malabo Protocol. The principle of complementarity is a cornerstone of the Rome Statute of the International Criminal Court (ICC). The Rome Statute crystallizes a complementary relationship between the ICC and domestic legal systems under Article 17 but makes no mention of regional or ad hoc jurisdictions. Prospects for including regional jurisdictions within the principle of complementarity are contingent upon a positive judicial interpretation of the principle and clearly established obligations at each level. It will necessarily require funding and support by states. Such an approach will contribute to the ongoing development of a robust system of international criminal justice. In order to effectively resolve the issue of competing mandates and effective domestic implementation, a cooperative model needs to be espoused. Although hypothetical at present, the idea of ‘regional complementarity’ is one worth thinking about in the context of constructive reform at the ICC. The prospective ACJHR offers a useful framework to analyse the potential role of regional mechanisms within the international criminal law project, broadly considered.

Global Environmental Law: Context and Theory, Challenge and Promise

AbstractFew issue areas exemplify the centrifugal forces that have prompted the emergence of global law scholarship better than the environment. With its propensity to blur or transcend conventional distinctions between national and international, public and private, and formal and informal, environmental governance offers a consummate case study to test the promise and perils of global law. In this article we situate global environmental law in the broader debate about lawmaking and application beyond the nation state, tracing the evolution and elusive boundaries of this nascent field. Our survey allows us to identify conceptual ambiguities and missed opportunities in the literature on global environmental law, including challenges to its normativity and legitimacy. From there, however, we proceed to outline a twofold opportunity for the global environmental law project: (i) an opportunity to enrich environmental law with more diverse and inclusive practices; and (ii) an opportunity for collaborative self-reflexivity by the scholars and practitioners of environmental law as these not only interpret and apply but, through their work, actively shape the content of the law.

Comparative Reflections on Punishment in Tort Law

This work explores and compares the treatment that the idea of punishing civil wrongs receives in the American, English, and French laws of torts. For this purpose, the chapter considers only tort remedies that pursue punishment as their fundamental goal, namely U.S. punitive damages, English exemplary damages, and the French amende civile as envisaged in the current reform project of tort law. The chapter shows that punishment is understood in two different ways across the three systems. One approach sees it instrumentally as a device geared towards the achievement of societal goals such as deterrence or retribution in the interests of society. On a second approach, punishment is seen as rooted in ideas of interpersonal justice in that it promotes private interests by, for example, empowering the victim of a wrong to take her revenge against the tortfeasor. While both the instrumental and interpersonal conceptions of punishment appear in each of the three systems considered, they do so to differing extents and they are seen more or less favourably depending on the way in which tort law is conceived of. In the United States, the debate as to whether tort law should punish is characterised by a clash between instrumentalist theories and theories of interpersonal justice. This conflict is part of a wider clash between different ways of theorising about tort law. The instrumental conception of punishment reflects a more general conception of tort law as an instrument of socio-economic policy. The interpersonal conception is instead consistent with broader theories that see tort law as focusing on the reciprocal rights and duties of the parties. Quite differently, in English law there is a disconnection between the way in which most legal actors view the tort system and the dominant conception of punishment. On the one hand, tort law is widely portrayed as a system of interpersonal justice, in which tort obligations must be justified with reference to the relationship between claimant and defendant. On the other hand, punishment is mostly understood instrumentally, and exemplary damages are depicted as a device that, at times, may attain societal goals such as deterrence. Clashing with an interpersonal vision of English law, exemplary damages are seen as anomalous or as requiring careful confinement. The position of French legal actors differs again. Resembling the English position, punishment is overwhelmingly seen as serving societal goals. This understanding of punishment is fully consistent with the markedly instrumental character of French tort law. Nevertheless, a potent legacy of interpersonal/corrective justice, the principle of full compensation, plays a key role in French law and limits substantially the options available when crafting punitive measures, eg by barring any solution resulting in a windfall to the claimant. The chapter concludes that the treatment reserved to punitive measures in tort varies depending on which conception of punishment, instrumental or interpersonal, is embraced and on how this conception relates to broader ways of seeing and theorising about tort law and its functions.

Методология анализа юридического языка в работах Герберта Харта 1949–1961 годов

The article includes a review of the research of a problematic historical and theoretical reconstruction of genesis and development of legal language analysis methodology proposed by Herbert Hart, a notable British legal expert. In the first part the author describes the philosophical basis of the Hart’s methodological concept (1949-1961) and defends a conclusion that analytical linguistic philosophy played a key part in its formation. The author affirms J.L. Austin’s key impact and intermediating secondary L. Wittgenstein’s influence on Hart. He mentions broad sources of Hart’s “open texture” concept that cannot be boiled down to F. Waismann’s views. The second part is focused on Hart’s ascriptivism and withdrawal ability concept (1949). Its contradictions include syncretism of withdrawal ability senses and social concept ascriptivity, as well as a rigid link between “action” and “responsibility” concepts. The paper emphasises va­lue of the concept for formation of Hart’s legal methodology concept. The third part represents a study of Hart’s analytical law project (1950s) considered as a philo­sophical explanation of basic legal concepts related to “abnormal” legal language idea and appropriate method of “philosophical determination”. The latter is interpreted as a central exemplary method for Hart’s techniques of conceptual analysis in view of problematization of semantics-pragmatics relationship. The author reviews Hart’s discussions with J. Cohen, E. Bodenheimer and L. Fuller about analytical law consistency, records significance of their arguments and notes further transformation of the Hart’s concept into conventional legal science. The fourth part presents analysis of the treatise (1961) methodology as an analytical law and descriptive sociology research. Hart’s analysis of a law concept related to taxonomisation of cen­tral and borderline cases of its use is interpreted as an example of application of previously formed techniques intended for analysis of multivalent, open and compound concepts. The author mentions merits and demerits of Hart’s approach. At the same time, he proves a thesis concerning lack of necessary relationship between philosopher’s methodology and posi­tivistic legal consciousness.

Nuclear Humanitarianism

Abstract In recent years, humanitarianism has been portrayed as a revolutionary new force in the anti-nuclear movement. This article challenges this progressive understanding of humanitarianism’s role in nuclear affairs by exploring how the language and concept of humanitarianism have been deployed by two states that have been deeply involved in international nuclear law projects over the last 50 years: Australia and New Zealand. It argues that contrary to popular perceptions about the radical potential of humanitarianism in nuclear affairs, the phenomenon’s track record in Australia and New Zealand is chequered. Indeed, in certain key respects, humanitarianism has impeded anti-nuclear agendas in Australia and New Zealand: first, the ambiguity inherent in the language of humanitarianism has allowed it to be deployed to support the maintenance of nuclear weapons; and secondly, humanitarianism has generated outcomes that often support and reinforce the status quo legally and structurally. The article also offers some reflections on the relationship between humanitarianism and international law in the nuclear context. Specifically, it shows how the Australian and New Zealand case studies reveal contradictory approaches to, and understandings of, humanitarianism as law.

From Doctrine to Devotion: The Jewish Comparative Law Project

It seems fair to say that Jewish law has “made it” in the American legal academy. While in the 1980s schools were reluctant to run, and scholars were reluctant to teach, Jewish law courses, the 1990s ushered in an era where dozens of law schools incorporated Jewish law courses into their catalogs1—a number that, from a quick perusal of law school course catalogs, appears to be growing with each passing decade. As Jewish law has become an entrenched feature of American law school curricula and scholarship, approaches to teaching2 and writing3 about Jewish law have varied widely—both in terms...

The legislative framework of gamete donation in Lebanon: Current status and future perspectives

Summary Introduction In Lebanon, little isknown regarding the existence of national laws or regulations related to the use of donor gametes or any other aspect of assisted reproductive technologies, although they are being practiced in Lebanon for decades. This study aims to define the current legislative framework of gamete donation, to identify any existing pitfall and to shed the light on the necessity of updating the laws and regulations in line with advances in the medical field. Materials and methods The different available Lebanese published materials related to gamete donation and assisted reproductive technologies were reviewed and analyzed. Semi-structured interviews with different key informant actors in the society were also conducted. Findings A major legislative gap was identified in this domain compared to the American and French models; gamete donation was never mentioned in any text except for in the law project. Such a lacuna can potentially create several ethical, legal and social issues that are discussed in this article. Conclusion Setting legislations in countries like Lebanon where religious communities prevail over the civil law is difficult, especially in the field of reproductive technology. There is a need for an active collaboration between public authorities and various actors in the society and stakeholders in order to establish uniform standards, regulate this field, avoid future potential legal conflicts and ultimately preserve human dignity and rights.

Harmonization of the protection against misleading commercial practices: ongoing divergences in Central European countries

Research background: Modern European integration focuses on competition in the internal single market, embracing both competitiveness and consumer protection, and it aims at full harmonization in this arena. The hallmark, the Unfair Commercial Practices Directive from 2005, aims to overcome diverse social, political, legal and economic traditions. Is the implied protection against misleading practices an opportunity or a threat for Central European Regions?
 Purpose of the article: The primary purpose is to comparatively describe and critically assess the transposed legal frameworks. The secondary purpose is to study and evaluate their coherence in the light of the case law and their impact in Central Europe, in particular whether it represents an opportunity or a threat for the smart, sustainable and inclusive growth, i.e. boosting competitiveness and innovation along with consumer welfare.
 Methods: The cross-disciplinary and multi-jurisdictional nature of this paper, and its dual purposes, implies the use of Meta-Analysis, of various interpretation techniques suitable for legal texts and judicial decisions, of the critical comparison and of a holistic assessment of approaches and impacts. Legislation and case law are explored and the yielded knowledge and data are confronted with a field search and case studies. The dominating qualitative research and data are complemented by the quantitative research and data.
 Findings & Value added: For over one decade, the Unfair Commercial Practices Directive has required full harmonization of the protection against, among other items, misleading commercial practices, by legislatures and judges in the EU. The exploration pursuant to the two purposes suggests that this ambitious legislative and case law project entails a number of transposition approaches with varying levels of coherence, importance and impacts on the competitiveness and innovation of business and consumer welfare in Central Europe. Therefore, full harmonization should be either readjusted or relaxed.

STUDENT ENGAGEMENT: MORE THAN BELLS AND WHISTLES

Student engagement is the time, effort and energy that students spend on all educational activities that enhance their learning ability. The improvement of student engagement is the principal aim of the Learning in Law project embarked upon by the Department of Mercantile Law at the University of the Free State (UFS), South Africa. One of the aims of the project, which is run in collaboration with the university’s Centre for Teaching and Learning, is to help lecturers develop innovative teaching methods and techniques to ensure in-class student engagement. As modern-day students are used to fast access to information, entertainment and social activity via their mobile devices, new teaching methods to catch and hold their attention and promote participation are needed. This contribution not only makes the case for new ways of teaching law in a changing higher education environment, but also suggests specific steps and techniques to be considered, drawing from the experience of the UFS’s Department of Mercantile Law.