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The result of a thorough documentation work in the UN Library of Geneva and the League of Nations Archives, the work presents the international system for the protection of minorities under the aegis of the League of Nations, a protection that was directed to certain minorities, which were in a specific situation and exclusively located in a certain geographic area, that is, Central Europe and the Balkans. The legal bases of this peace agreement in Europe did not establish erga omnes international norms with regard to the status of all minorities on the continent. Nevertheless, the international protection of minorities under the aegis of the League of Nations represents a genuine historical experiment with important consequences for the contemporary world, for the way minority issues are approached and dealt with, and for the outlook and the practice of States in relation to the role of international organizations. An analysis of the League's case law in terms of minorities proves that without the intervention of the League's Council in favour of the establishment of a sui generis procedure and the creation of specialized bodies in the framework of the Secretariat General to continuously monitor and solve concrete cases by predominantly political means of negotiation and direct persuasion, with the direct support of the authorities of the respective States, minorities' protection under the League's aegis would have become inoperative. Involvement of the League's other institutions – the Assembly and the Permanent Court of International Justice – with the minorities issue contributed to the development of the international concepts in the field and proved that, in terms of history, the issue could no longer be neglected later at the level of the European and the worldwide cooperation of States. In terms of the international law, the contribution made by this international organization can be defined as follows: limitation of the international protection to those minorities indicated in the special treaties and declarations; taking into account only the persons belonging to racial, religious and linguistic minorities; promotion of equality in rights also with regard to individual opportunities by adequate measures in fields with special requirements such as education; prohibition of the possibility for the State to challenge invocation of the status of person belonging to a minority; promotion of minority rights as individual, not collective rights; acknowledgement of the competence of the international jurisdiction of that time to issue advisory opinions and to rule in terms of minorities.
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Remedies and Appeals in the field of Public Procurement. Law no. 101/2016-genesis, interpretation, limits, perspectives by Dumitru-Daniel Șerban, 2019, Bucharest, Romania: Ed. Hamangiu.
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The implementation of local self-government reform is closely linked to the social identity, a concept that includes common territory of residence, history of origin and development, social interaction, moral standards, values, traditions, interests, habits and needs. In order to study the realm of different European countries in implementing of the decentralization policy and the current state of regulation of the local-self government issues with respect to the social identity the comparative-law, formal and legal, and system structural methods were used. The cross-national comparative study reveals that in Austria, Spain, France, Poland, the formation of local communities’ associations was preceded with regard to the economic criterion and the permission of the executive branch, while the opinion of local communities’ members is only advisory. In Estonia, the legislation regulates the procedure on the formation of unions of townships or cities, aswell as a list of issues to be discussed with local communities’ members. However, the decisive move is still left to the government. In Ukraine, it is statutory that a decision to form a united territorial community could be adopted only after positive discussions with members of the relevant local communities.
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In scholarship, it was argued for existence of an "international administrative law" (internationales Verwaltungsrecht, diritto amministrativo internazionale, droit administrative international) as a special branch of municipal administrative law. Under this understanding, international administrative law constitutes a special (sub)discipline, providing for norms governing administrative relations with a foreign element. However, this concept wasn’t overall accepted in the scholarship of administrative law and some authors have argued, international administrative law represents more a field of emerging study, than an established legal discipline. This article aims to discuss thorny issues of the concept and summarise dogmatic considerations, expressed vis-á-vis international administrative law in the scholarship. At the same time, this article aims to settle these dogmatical considerations and to present international administrative law as a “delimiting law”, constituting a part of both substantive and procedural administrative law. Lastly, this article argues, that the parallel emergence of international administrative law in several jurisdictions echoes existence of this field as a part of an (administrative) ius commune.
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Double taxation agreement is one of the most widespread type of international treaty regulating financial relations. The efficiency of its application as a source of financial law depends on the features of the legal basis for implementation of its provisions into domestic legal orders of contracting states. Based on the practice of Ukraine, there is an attempt to describe key challenges in application of provisions of international treaties in the context of the requirements of the Tax Code of Ukraine based on the application of comparative method: 1) the legal status of double taxation treaties of Ukraine that are still in effect based on the fact of legal succession of Ukraine; 2) the legal status of protocols to international treaties concluded between competent authorities of contracting states; 3) the legal status of mutual agreements concluded on the basis of the provisions of double taxation treaties.
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Public administration is the basic mechanism that ensures the good functioning of the state by providing services to citizens and exercising state power as well. Moreover, the administrative apparatus, according to the standards of the European Administrative Space, should be granted a certain level of independence from political institutions while conducting its administrative activity. For this reason, public administration reforms have always started with the professionalization of the civil service as the main pillar of the administrative apparatus. Initial measures to ensure the professionalism of the administration have been always undertaken in the field of meritocratic recruitment of civil servants as well as increase of their skills. States in transition and those emerging from the conflict continue to face the challenge of professionalizing the civil service as a consequence of the legacy of past systems. This paper explains the efforts undertaken in Kosovo for the professionalization of the civil service using: normative legal method, comparative and qualitative method, by focusing on the specific analysis of the legal framework for the recruitment of civil servants in Kosovo by comparing it with established practices which are often in conflict with the legal basis as a result of interference by political institutions.
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This study is focused on the divergences of jurisprudence that appeared following the amendment, as at mid 2018, of the rules of territorial jurisdiction inserted in the content of the Law on Administrative Contentious. The new provisions establish the exclusive territorial jurisdiction of the administrative contentious court of the place of domicile of the natural person or of the place of registered office of the legal person of private law, part of the judicial conflict of administrative law, facilitating the access to justice of the individual by the proximity of the seat of the court, the reduction of paid court charges etc. However, the desiderata taken into account by the initiators of the legislative amendment were not achieved in the case of disputes brought by trade unions having as scope of works the employment relationships of civil servants, trade union members. The different appreciation of the capacity in which the trade union can participate in the lawsuit (plaintiff or simple representative of the civil servant) determines jurisprudential divergences in establishing the competent court from a territorial point of view, successive dismissals and numerous negative conflicts of jurisdiction. Analysing the legislative framework and the relevant jurisprudence, including from the point of view of their evolution, at the end of the study concrete proposals are made to underlie the unification of jurisprudence and even the regulation of special rules of territorial jurisdiction in disputes that call into question the employment relationship of the civil servant.
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In order to fulfill the principle of the constitutional state, Republic of Indonesia in its constitution admit and guarantee that every people have rights of recognition, guarantee, protection, fair legal certainty and equality before the law. Discretionary power or freies ermessen attached to administrative power even according to the principle of constitutional state every authority should be based on law, but in certain situation and condition in which the law has not or does not clearly regulated, the officials or administration agencies should make an action or decision based on policy or discretionary of power. Although freies ermessen is created in the form of regulation that is known as policy rule or beleid regel but the act of administration agencies that is freies ermessen that is most potential for abuse of power. Therefore, in sentence of Corruption Crime it is based on the purpose of sentence namely improving and protecting society thus the criminal responsibility who is always asked for the convict in the criminal act while it is still based on purpose of sentence.
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In the introductory remarks, the paper highlights the shared past of the central European countries and the most important historical moments for the development of the public administration. Further, the paper points out various theoretical approaches to the definition of the term public service, public administration and its classification concerning the academic background in the Czech Republic. Subsequently, the primary public service legislation in the Czech Republic is referred out. On this basis, public service and administration challenges and issues are formulated. The authors approach the concept of public service in a broader sense, focusing on public service in general, service of the state officials, officials of territorial self-governing municipality units, as well as public services provided by the private sector. The paper examines the new role of the public administration in the global health and public services crisis. The authors evaluate the possibilities of the new governance methods for re-directing the public service and administration to the new role of the crisis and post-crisis managers.
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In many parts of the world, globalisation creates a phenomenon which integrates states into federal-like structures, even if they are not necessarily of the known, classical type, like the European Union, for instance. The international doctrine and practise also credit federal states with a higher potential for economic growth compared to unitary states. Starting from the undeniable fact that the economy and politics are closely linked together, some authors are trying to stretch the benefits of the federal system beyond what it can actually offer and argue that federalism may be the solution to other categories of political issues that the unitary states face. Minority population is one such category. This study aims at showing that the state structure is irrelevant to solving the problems arising from the status of belonging to a national minority. This article is the first part of the study, dedicated to the analysis of the object of regulation, represented by the rights of national minorities.
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This paper is dedicated to the functioning and importance of independent agencies versus balance in the proper functioning of the legal system of the state. Independent institutions are the key element of a functioning democracy. Together with the legislature, the executive and the judiciary they enable a developed system of maintaining balance, increasing accountability and mitigating undue political influence. The challenges that accompany Kosovo's transitional democracy continue to hamper the development of institutions ranging from persistent resource shortages to political interference. The Government and Assembly of Kosovo should lead by example and publicly demonstrate their unwavering support for independent institutions. They must respect their full independence guaranteed by the Constitution and the law. The reasonable legal basis provides reasons for encouragement along with the strong institutional structure that most of the institutions analyzed possess. Otherwise, if current practices continue, then security institutions will have no motive to cooperate with independent institutions.
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Исследователям трудно объяснить феномен признания государств.Автор решила рассмотреть этот вопрос через призму доктрины признаниягосударств в классическом международном праве. Основой для данной работыстало исследование наиболее плодовитого ученого российской иммиграции‒ М.А. Циммермана. Основная гипотеза статьи сфокусирована вокруг идеи о том,что узкие политические интересы государства могут быть преодолены толькосилой сбалансированных коллективных правовых решений по вопросу признания.
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В статье анализируются вопросы рецепции права, его понимания,роли в развитии и модернизации национальной правовой системы. Приведеныи анализированы различные научные взгляды о рецепции права, и о его ролив модернизации правовой системы. Констатируется, что к настоящему временинет единой целостной доктрины рецепции права, что нередко приводит к разномупонятия этого правового явления. Это обстоятельства ставит перед теориейправа необходимости разработки доктрины рецепции права, включающую понятия,сферы, пределы, условия рецепции права. В статье выдвинуты обоснованныепредложения и рекомендации, направленного на совершенствование рецепции правав правовую систему Узбекистана в перспективе.
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The purpose of the article is to present the fundamental rules and regulationsconstituting the position of the judge in Poland, which finds its basis first of all in theregulations of the basic law interpreted over the years by the Constitutional Court, butnow – in the norms of international law. Moreover, the author included his thoughts onthe issues of the legitimization of judicial power and its relationship with the legislativeand the executive. He also referred to the ongoing discussions on the status of the NationalCouncil of the Judiciary as a constitutionally-established body, whose task is to guaranteethe independence of courts and the independence of judges in Poland. Furthermore, thearticle discusses the procedure and criteria of appointing a candidate to the position ofa judge to different levels of the judiciary. It also deals with the basic elements guaranteeingthe effectiveness of the principles of the independence of the judiciary such as neutrality,irremovability, incompatibility, immunity and the judge’s material status.
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The constitution defines the competences of a two-instance court consisting of16 voivodship administrative courts and the Supreme Administrative Court as the controlof public administration bodies. The judiciary in this respect is, therefore, subject to checkingthe legality of administrative bodies. This control generally does not provide for substantiveadjudication replacing administrative acts. Administrative courts do not take over the case torecognize but perform its control. Such a case is still being decided by a public administrationbody.
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The COVID-19 pandemics, which we have been going through for almost a year, has shown, beyond any doubt, that health and safety of workers must be a priority not only for the employer (and the employee), but also for the legislator, for those who interpret and apply the law and for the society as a whole. Up to this date, the health and safety of the workers, although predominantly the prerogative of individually considered states, have also been addressed by a number of international organizations, such as the European Union or the Council of Europe,whose action complements and to strengthens the action of States and provides individuals with a wider and more varied range of remedies for situations in which their rights are violated. Starting from these premises, in this study we will address the issue of health and safety at work as they appear in the Charter of Fundamental Rights of the European Union.
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In terms of content, compulsory share is the most efficient and effective testation restriction. In the European Continental legal systems, this institution allows a testator’s family members to inherit a legally defined portion of the inheritance against the testator’s will. In modern legal theory and practice, the question is increasingly raised regarding the justifiability of guaranteeing the compulsory share. Views advocating a comprehensive restriction, even an outright abolition, of this institution are gaining prominence, arguing as they are for each individual to thus be able to fully exercise their property rights as they see fit. Although this has been the subject of fierce debate in legal circles recently, one must bear in mind that the compulsory share is a very important inheritance law institution with multiple functions, and that it should not be called into question in Europe. Therefore, the present author outlines the classical theories justifying the existence of the institution of compulsory share, analyses their basic tenets and ideas, and goes on to put forward his observations regarding which arguments can be used to defend regulating compulsory inheritance in modern legal systems.
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