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This article examines, on the one hand, the relationship between methods of legal interpretation used by judges, and on the other hand, the legitimacy of judicial discretion and the impact of judicial decisions upon structural social antagonisms (known as ‘the political’). The paper explores these matters by means of a case study, namely, the judicial activity of the European Court of Justice (‘Court’). The article posits a direct correlation between the method of interpretation chosen by the court, and the legitimacy of its discretion as well as the level of decision-making with regard to the political. Accordingly, if the Court chooses a linguistic method of interpretation, adhering to the objective will of the treaty-makers and legislators, the legitimacy of a decision has more weight, and the extent of judicial decision-making in the field of the political is correspondingly lower. However, this is not possible due to the general features of legal language, and especially specific features of the language used in European case law since the judge is unable to decide cases solely on the basis of the language of legal texts. This creates a need for the judge to arrive at a decision, which must be legitimised on the basis of the axiological choices made, and interests protected. To this end, a tentative normative theory of interpretation for the Court is proposed.
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The distinction between legal and non-legal values can be made from the aspect of legal system analysis. Since the content of the legal system depends on the identification of norms that establish such content, the problem of the identification is crucial for any kind of consideration of legal values. In discourse of international legal scholars, we can recognize attempts to identify values which are not dependent on the existing social practice. The purpose of this paper is to analyse such an approach to legal values as opposite to the positivistic account of the law and to analyse the main objection to this non-positivist perspective.
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International judicial dialogue is a new method of law interpretation that gains popularity in analyses of legal scholars and still raises a lot of doubts both on its existence as well as its definition. This paper will deal with the application of this technique by Polish courts. In the first place, it will be explained what international judicial dialogue actually means. Afterwards, the paper will in detail discuss problems connected to the use of this method on the basis of decisions of Polish courts, first, by presenting examples of a proper, decorative and failed dialogue, and then by emphasizing complications caused by this method in the Polish jurisprudence. It will be also explored whether there exists a real dialogue, meaning that not only Polish courts receptively refer to judgments of international and foreign courts, but there is also some level of reciprocity in those references. At the end of the paper, the advantages and disadvantages of this method will be deliberated. In this part, I will suggest some solutions permitting mitigation of some adverse effects s of this technique.
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This article examines whether the recent peace agreements, signed between Israel and the Gulf states: The United Arab Emirates and Bahrain in September 2020, form a 'honey trap', meant to use the economic benefits they offer as leverage to affect Israel's political position towards the Middle East conflict. Recalling that the EU exercises such an approach for many years, the article tries to assess its current and potential effectiveness to the parties involved.
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In the process of nation-building in Eastern Europe in general and in particular in the territories that were under Ottoman occupation in the Balkans, the formation of the Albanian national identity is the most atypical and perhaps the most complicated case. This is due to the fact that the Albanians as a nation, after the Ottoman conquest, faced a situation of confrontation with some very strong identities or sub-identities, such as religious identity, provincial identity, dialect-linguistic identities, etc. Particularly problematic is the fact that Albanians as a population and as a nation even today belong to at least three major religious traditions: Catholicism, Islam and Orthodoxy. The clash with these religious sub-identities in the face of the emphasis on ethnicity and language as the projected foundation of the Albanian nation by the intellectuals of the Albanian national Renaissance, but also of the state power of independent Albania, presents the object of study and the importance of this scientific research.
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Contemporary private international law is at the crossroads of methodological and regulatory developments, which are due to the increased mobility of people and the globalization. The complexity of the sources of private international law gets higher in view of the way in which they are issued and drawn up. The sources originating from various legal systems (universal, regional or national ones) act jointly as a system because of the mutual effect inherent thereto. A tendency is present toward an increase in the number and specialization of the sources in relation to the subject matter of the regulated relationships. The national legislative bodies coordinate their acts with those of other states and international organizations, and form part of the competition in creating the most favourable regulatory environment for its citizens. Willing to make use of the sources of private international law for various political goals, the international organizations and the organizations of regional economic integration exert additional regulatory influence both in a horizontal aspect among themselves and in a vertical aspect with regard to the co-contractor states. The subjects’ need for legal security and steadiness in their private life finds its manifestation through the method of recognition.
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Celem tego artykułu jest przedstawienie zasady stałej suwerenności nad zasobami naturalnymi w orzecznictwie sądów międzynarodowych. Opracowanie to jest kontynuacją zagadnień omówionych w poprzednich artykułach dotyczących górnictwa transgranicznego i tzw. zasobów naturalnych dzielonych. Do opracowania tego tematu wykorzystano literaturę polską i zagraniczną, a przede wszystkim orzecznictwo sądów międzynarodowych. W pierwszej części niniejszego artykułu przedstawiono teoretyczne podstawy konieczne do dalszych rozważań. Zawiera ona definicje oraz podstawy zasady stałej suwerenności nad zasobami naturalnymi. Druga część opisuje najbardziej istotne prawa i obowiązki wynikające z omawianej zasady. Na koniec zaprezentowano analizę orzeczeń sądów międzynarodowych w odniesieniu do zasady stałej suwerenności nad zasobami naturalnymi oraz wnioski wynikające z tej analizy.
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The paper aims to demonstrate that contemporary international law has solutions to offer when it comes to protecting the cultural heritage in maritime areas beyond national jurisdiction, i.e. in the International Seabed Area. In this context, the author also specifically considers issues regarding the protection of RMS Titanic’s wreck, as a cultural heritage site significant to the whole of humankind. In the first part, the paper analyses the rules of international law applicable to the protection and preservation of cultural objects in the International Seabed Area. The analysis commences with the UN Convention on the Law of the Sea, which only partially regulated the protection of the underwater cultural heritage. In addition, the paper researches in detail into the international legal mechanisms as provided for by the UNESCO Convention on the Protection of the Underwater Cultural Heritage. Finally, the author examines the possibility of applying the protection regime according to the UNESCO Convention concerning the Protection of the World Cultural and Natural Heritage. The second part of the paper focuses on the international legal situation regarding the protection of Titanic’s wreck. Besides analysing the most important provisions of the special 2003 Agreement concerning the Shipwrecked Vessel RMS Titanic, which is not yet in force, the author reviews the prospects of applying the universal conventions discussed in the first part of the paper and also seeks to assess the effectiveness of the mechanisms at hand in assuring the protection of this valuable cultural object.
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Owing to increasing globalisation, transnational corporations play an important role in international trade. Those wealthy and very complex entities have a major impact on reality and often engage in activities which involve illegal practices such as the environmental pollution, forced labour and other serious infringement of employees’ right or even crimes against humanity. Carrying on business which is primarily profit-oriented may result in violations of fundamental human rights, if this is required for a corporation to financially exploit a business opportunity. It is difficult in practice to hold these entities and their corporate directors to account. Regulations regarding criminal responsibility of managers of transnational corporations can be found in national and international laws. However, criminal proceedings do not give satisfactory results. The main problem lies in powers, flexibility and close links of those corporations with local authorities. The paper points to different solutions applied throughout the world, and describes the best-known criminal proceedings against corporate managers.
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The practice of surrogacy motherhood has been developing for several decades. To describe and analyze it, several aspects are considered: the motivation and remuneration of the surrogate mother; the origin of the genetic material used; its regulation or prohibition. However, whatever the distinctions induced by the consideration of these aspects, surrogate motherhood is possible on one condition only, namely if and only if a woman can dispose of the child to which she gives birth. The Law questions this condition, especially when it is formulated in terms of human rights. Between the spirit of the international conventions that promote these rights, and the national legislations that are supposed to respect them, there is nevertheless an important gap, and the effectiveness of the Law as a tool proves to be insufficient. Thus, to question this primordial condition, to know if a woman can dispose of the child to which she gives life, feminist ethics is the one that can provide an effective framework. More precisely, an ethic nourished by consideration (C. Pelluchon) and by the principle of Convenio (which can suit all members of a community, including the most deprived) (M. Miroiu).
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This is an exploratory and comparative study about the political and institutional constraints of tax harmonization in EU and its effect on free competition. Objectives: to explore and compare the different tax systems in EU members for answer three questions: there are or not a disloyal competition resulted from the differences in tax between EU countries? Which is the impact in foreign investment in EU countries? Why EU do not have more tax harmonization to fight against tax disloyal competition between members States? Methodology: we used the comparative study about income taxes in several EU countries and the relation to GDP, as well the deductive method to analyze the results we find and some reference studies on the subject. Results: the principal reason for less tax harmonization is the great advantages for the biggest and strongest economies in EU. Secondary, they did and still do use the tax system for introducea new way of disloyal and dissimulated competition between countries members. European governments don´t want tax harmonization. Some of them has used tax benefits to catch more foreign investment, economic growth and avoid an effective free commercial competition.
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The Romanian Forestry Code regulates the principle of conserving the biodiversity of forest ecosystems, by inserting sustainable management measures: the establishment of protected natural areas, ecological reconstruction, regeneration and forest care. The concession contract is not, in itself, a way of sustainable forest management, as is the case in other countries. Thus, the objective of this study is to analyze the legislation specific to the forestry field from the perspective of the concession contract, by identifying regulations that would be an example of good practice. In this sense, we have identified the regulations in Brazil, given the measures that this country has partially managed to implement for the protection of forest lands, as a model that will be followed in the near future, by the Romanian legislator. The comparative method of the legislation of the two countries aims to determine the deficiencies of this law from the perspective of the impact that the conclusion of a forest concession contract may have on the concessioned property itself, as well as the way in which the public interest is respected. The identification of sustainable management criteria, according to which the exploitation of public or private forest land is assigned, is an essential element to be taken into account in the case of a concession, in order to develop legislative proposals to improve the legal framework by which the principle of conserving the biodiversity of forest ecosystems should be applied. A particularly useful aspect for further research would be to address the issue in terms of international investment law.
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In the general prospect of globalization, investments have always been surrounded by problems that needed to be solved neutrally and impartially. In other words, the global commercial system always required a universally applicable, impartial and neutral judicial system that can be used for settling a dispute arising between nationals of different states or nationals and foreign countries. The following article aims to analyze the unique features of the International Centre for Settlement of Investment Disputes (ICSID) system and its autonomous nature. Specifically, the article will deal with the remedies provided by the international framework to the ICSID awards and the procedural steps that must be undertaken by the parties in order to access a specific remedy with a special emphasis on the most powerful remedy, which is the annulment of an award. Furthermore, the article will focus on the interlink between those remedies and the ones provided by the national law of a Contracting Party or other international non-ICSID law streams. While the vast majority of the international doctrine and case law address the situation of the investor, thus focusing on its interest, this article will mainly focus on the interests of the Contracting State in its capacity as respondent to defend against a claim arising from a Bilateral Investment Treaty (BIT). Given that the legal framework in discussion is a highly specific one, the article will first address the ICSID convention and its final and binding nature. Further on, we will discuss the control mechanism comprising the specific remedies provided by the Convention. We will then proceed to tackle two of the most important post-annulment issues and finally, turn our attention to comparison between ICSID and non-ICSIDlegal framework.
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This article analyzes the experience of European countries in creating a united medical space. The united medical space should be formed on the basis of human-centeredness, bioethics and be a key medical standard. States systematize health care legislation and implement and comply with international law. A united medical space must be formed on the basis of anthropocentrism. The united medical space should concentrate on the performance of public and private health care facilities to fully realize and ensure patients' rights to health care. The patient must be the goal of medical reform. Medical care provided to patients should be affordable and high quality, funded by public or private insurance companies. The only medical space in European countries is to facilitate the patient's access to a medical card, medicines, vaccines, quick access to medical care. However, as analyzed from the experience of Germany, Italy, Austria and France, the question of the priority of medical care remains open. Health care reform measures are assessed not only by short-term budget savings for the population, but also by their ability to promote health and generate health benefits for the entire population. It should be noted that with the help of telemedicine, artificial intelligence will improve and develop the field of health care, the quality of medical care, the attitude to medical workers.
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Autonomous weapons are a new generation of weapons, and their development will lead to revolution in the field of military technology. Whether this revolution will be implemented depends on people's determination about the future of autonomous weapons, i. e. the development, restriction, suspension or total prohibition of these technologies. International decision and an unified policy choice should be implemented before the snowball effect occurs. In other words, it will be difficult for states to agree on the development or limitation of these technologies if the most powerful militaries in the world, or at least one of them develops autonomous weapons and has the opportunity to deploy them in armed conflicts. The need for development of autonomous weapons arises from comparing their advantages with conventional weapons. Autonomous weapons can reduce the number of victims and people injured in armed conflict and should help preserve property that is destroyed as a result of an inaccurately calculated attack. While these weapons may provide an advantage in warfare, they pose unprecedented challenges in legal and moral terms. One of the main ones is the emergence of an accountability gap. When an autonomous weapon acts in violation of international humanitarian law, it may be difficult to identify the entity responsible. In the light of the above, the article seeks to answer the question of whether the principle of meaningful human control solves the accountability gap for autonomous weapons. Examining the issue, first of all paper analyzes the need to apply personal accountability for serious violations of international humanitarian law, i. e. war crimes, crimes against humanity and genocide. In the following, article discusses one of the purposes of criminal law punishment, elements of the crime (actus reus and mens rea) and the execution of these elements if the actions of the autonomous weapon are contrary to international humanitarian law. Further paper presents problem of accountability gap posed by autonomous weapons. After revealing accountability gap issue, the importance of the principle (concept) of meaningful human control is discussed. The article identifies two main assumptions that necessitate application of the concept to autonomous weapons, explains the diversity of the principle, presents different approaches of states and non-governmental organization to the concept, also refers its main components. Finally, based on the statements of CCW members and the insights of researchers, article identifies that military commander is responsible for the implementation of the principle of meaningful human control over autonomous weapons. Hereafter paper explains the forms of responsibility of the commander, i. e. the direct responsibility and the doctrine of command responsibility. In the following, article presents arguments and counter-arguments in order to apply commander's direct responsibility for a violation of international humanitarian law by an autonomous weapon. Paper also specifies the requirements for accountability under the doctrine of command responsibility, identifies difficulties and solutions to apply this form of accountability in the event of law infringement by an autonomous weapon. After analyzing mentioned factors, article concludes that principle of meaningful human control can solve accountability gap for autonomous weapons.
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This paper considers specific arbitral requirements regulated by the Comprehensive economic trade agreement concluded by the European Union on the one side and Canada on the other side and the scope of control that state court exercise over.
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The Italian Juvenile Law guarantees protection to unaccompanied foreign minors, which is a child coming from non-EU countries without parents. This phenomenon, in recent years, concerns the migratory flows of refugees, who arrive from Turkey or Libya to the coasts of Italy; the journey is often dramatic and sometimes it requires to pass through other European countries. The EU Regulation - Dublin III, which entered into force on 1 January 2014, points at the competence of the EU State in which the minors arrived at first; further transfers, except the need to be reunited with family members in other EU States, are not significant for the European law. The current system of granting refugee or other forms of international protection is based on this fundamental principle. The protection of unaccompanied foreign minors in Italy is achieved through a form of "multidisciplinary" support; the legal data is only one component. In addition, there are social and educational projects as well as protection for health; the need of an effective integration is perceived. Together with the social intervention, a legal public representative, the Guardian, is appointed for unaccompanied minor. The competence belongs to the Municipality in which the minor is found or where, following a first reception, will be transferred on the basis of a regional territorial assignment, within the national system of Italian reception for refugee minors, called "SIPROIMI". The legal Guardian’s role is to guarantee children’s rights and an adequate assistance. It’s a very thorny topic in the Metropolitan Area of Bologna, which has more than a million inhabitants; all the local offices created a "Public Metropolitan Protection Office" with the aims to manage these aspects. Promoting the function of these public offices confers the role of a “third party” in the protection of the children with the assistance of social and health services.
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The right to health is an intrinsic right of every person. It is counted among the fundamental rights. Nowadays, it is difficult to imagine living and functioning in society without a high level of health. This is due to the evolution of international and national health legislation and public health policies - different in each country. Undoubtedly, children and their rights are being given more and more attention in law. In this current, too, many legal acts of international importance have emerged, implemented into the national order. Among them is the postulate of the right to the health of the child, but an important right, due to the special position of the child in law. This article is devoted to the right to health. It focuses on the child as a subject of the law, who is particularly cared for by the legislator. On the basis of the present study, an analysis of legal acts concerning the right to health of a child was made. Particular attention was paid to the Convention on the Rights of the Child in view of the 30th anniversary of its entry into force. The analysis of the national legislation on the expressions of legal thought on the specific right to the health of the child gave an assessment of the level of protection of this right in Poland in the light of international standards. In the course of the analysis of national legislation, attention was drawn to selected specific regulations relating to the right to health of the child. Normative regulations were also examined in terms of their precision and continuation of the idea of continuous improvement of standards of protection of the right to child's health resulting from the Convention on the Rights of the Child.
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The purpose of this article is to set out the multiannual process for establishing the European Ombudsman's office and the reasons for its establishment. It presents the history of the first European Ombudsmen and the history of the European Communities from a legal perspective. The author goes back to the reasons for setting up the European Ombudsman's body, which were the lack of legitimacy in the European Union. The role of bodies such as the European Ombudsman is to ensure that citizens' rights are actually respected. The European Ombudsman strengthens the rule of law in the European Union and complements the role of the courts by providing a cheap, accessible individual remedy and, on the other hand, complements the representative function of the European Parliament by becoming the centre of independent critical assessment and improvement of the quality of European administration. The rule of law serves to maintain the EU system as a supranational system. It is the construction of the axis of integration. If there is a lack of trust in the community in this respect, it begins to be treated differently. It is therefore important that the European Ombudsman fulfils his Treaty obligations as a body of the European Union effectively.
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