Ii. Anerkendelsesprocedure

1979 ◽  
Vol 48 (1-4) ◽  
pp. 143-148
Author(s):  
Isi Foighel
Keyword(s):  
International Law ◽  
International Community ◽  
Point Of View ◽  
The Political ◽  
International Treaties ◽  
Refugee Status ◽  
Recognition Procedure ◽  
High Commissioner ◽  
Legal Position ◽  
The Individual

AbstractThe distinction between the international refugee status and the national legal position as a refugee is important. The decision is based on different legal sources and taken by different competent bodies. Furthermore, different procedures should apply to the two different questions. In practice, however, the recognition procedure is often one and the same. The relation between the refugee and the country of asylum is the most important relation and this is where most problems come up. It is a serious problem, if states refuse to grant the international refugee status in order to regulate for instance the labour market. Furthermore, there is a legal dichotomy which may create difficulties in the fact that international law such as for instance the Refugee Convention of 1951 often regulates the international refugee status, as well as the legal position as a refugee in national law. In practice, the international rules apply only if a person has been recognized as belonging to the category of people defined as refugees. This is not logic, because the recognition as a refugee is declaratory not constructive. This is important, not just from a legal point of view, but also because of diplomatic and political considerations concerning the relationship between the country of asylum and the refugee's own country. The material question of defining who is a refugee is established in international treaties which also define the competence for recognizing refugee status. This competence lies with the potential country of Asylum. At the same time, however, the competence of recognizing a refugee under the statute of the UNHCR lies with the High Commissioner. This inconsistency, however, has not in practical terms led to too many unfortunate results. It is quite normal that it is left to the states to interprete international law embodied in the principle of autointerpretaion. Autointerpretation, however, does not include a right to autodecision. The interpretation which states attach to international law has to be acceptable for the international community and the spokesmen of the international community in this respect is Unied Nations High Commissioner for Refugees. While the material problems and the problems of competence are regulated in international treaties, these treaties are, however, silent about the procedure for recognition. Very few states have a formalized procedure for the recognition of refugee status. One argument, which has been put forward, is that national authorities are reluctant to recognize the international refugee status of a person, because this recognition will have effects in other countries particularly concerning entry and status in these other countries. The author suggests that even if it is desirable for the individual refugee that his status as a refugee is recognized once and for all by all contracting parties to the Refugee Convention, it appears obvious that the conventions leave it to each state to decide on the refugee status in relation to the individual refugee as well as in relation to other states. This legal situation has drawbacks, but it means on the other hand that states cannot deny refugee status with reference to the practice of other states. The author furthermore suggests that international harmonization of the recognition procedures is desirable probably only from a political point of view, namely that states in the same region solve the problems in common so that no single state escapes its international responsibility by a particularly restrictive practice. A harmonization does not appear to be necessary out of considerations for the individual refugee, and it would probably be impossible. Certain elements should, however, be included in every recognition procedure. As far as the evaluation of facts is concerned it is quite difficult to establish judicial or administrative bodies to deal effectively with this side of the problem. The author refers to the Danish solution according to which cases are referred to the Danish Refugee Council which is a private organization for the elucidation of facts involved in the case. The Council is in a position much more freely than the official administration to use its private international connection to receive information which is beyond the judicial official administrative system. As far as the legal aspects are concerned it is necessary that there is a close contact with the international community in order to make sure that the decision of the state is acceptable to the international community. The author points out that the decision of a person's international status as a refugee is a decision for life. It is therefore necessary that at least as many legal safeguards are included in this decision as in ordinary judical proceedings. Decisions should be made by legal authorities independent of the political structure. The legal guarantees should ensure that the decision is made by persons who are independent of the political power structure, that legal counsel is offered the applicant, that there is a possibility of appeal and that the decisions and proceedings to the widest possible extent are public. If there is not complete harmony between national and international law, it will be up to the national courts to point out that there is a breach of an international obligation. According to normal practice in the Nordic countries, the court will probably go far in constructing the national rules in conformity with the international obligations. Three points in conclusion and for debate: — A person's international refugee status is something that primarily comes out of international rules and the only purpose of the recognition procedure is to establish this in relation to the country of asylum. The decision is legal and should be taken in legal forms. A person's international refugee status and the legal position which a country normally gives refugees should not be confused.

scholarly journals Customary International Rules in Contemporary International Law // Međunarodna običajna pravila u savremenom međunarodnom pravu

2019 ◽  
Vol 9 (9) ◽  
pp. 136
Author(s):  
Duško Glodić
Keyword(s):  
International Relations ◽  
International Law ◽  
Legal Framework ◽  
International Community ◽  
Point Of View ◽  
Customary International Law ◽  
Practical Point ◽  
Legal Norms ◽  
State Practice ◽  
The Creation

This article explores the role and importance accorded to customary international law in contemporary international law. First of all, the author has explored a number of issues related to this topic. Particluarly, the manner in which norms of customary international law are being established through the relevant State practice and the formation of opinio juris, as well as how the changes in contemporary international relations generated some chages in custromary international law were examined from both theretical and practical point of view. Than, the article elaborated, in a more concrete manner, different ways of impact of changes in international relations and subjects of international law to the formation of customary international rules. It has also paid attention to the evolution in international law and its reflection to the creation of international legal norms, including customary rules. The article concluded that, despite an ever increasing number of treaties, customary rules are still present in international law and are important for regulation of international relations, thus ensuring that dynamics and developments within the international community are followed by the development of legal framework.

Part 1 Refugees, 2 Refugees Defined and Described

2021 ◽  
Author(s):  
Goodwin-Gill Guy S ◽  
McAdam Jane ◽  
Dunlop Emma
Keyword(s):  
International Law ◽  
International Community ◽  
The Other ◽  
Refugee Status ◽  
Other Hand ◽  
Local Protection ◽  
Ordinary Usage ◽  
The One ◽  
Prompt Response

This chapter defines and describes refugees. The term ‘refugee’ is a term of art, that is, a term with a content verifiable according to principles of general international law. In ordinary usage, it has a broader, looser meaning, signifying someone in flight, who seeks to escape conditions or personal circumstances found to be intolerable. For the purposes of international law, States have further limited the concept of the refugee. Defining refugees may appear an unworthy exercise in legalism and semantics, obstructing a prompt response to the needs of people in distress. On the one hand, States have nevertheless insisted on fairly restrictive criteria for identifying those who benefit from refugee status and asylum or local protection. On the other hand, the definition or description may facilitate and justify aid and protection, while satisfying the relevant criteria ought in practice to indicate entitlement to the pertinent rights or benefits. In determining the content in international law of the class of refugees, therefore, the traditional sources—treaties and the practice of States—must be examined, also taking into account the normative impact of the practice and procedures of the various bodies established by the international community to deal with the problems of refugees.

“The Rights and Obligations of Parties to International Armed Conflicts”

2018 ◽  
Author(s):  
Janina Dill
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
International Community ◽  
Armed Conflicts ◽  
International Humanitarian Law ◽  
Humanitarian Law ◽  
The Rule Of Law ◽  
Community Interest ◽  
The Individual

This chapter argues that the process commonly described as the development of international law “from bilateralism to community interest” should be dis-aggregated into its formal, procedural, and substantive dimensions. A move away from formal and procedural bilateralism is always a move towards community interest because it furthers the rule of law. In contrast, a move away from formal/procedural bilateralism does not guarantee a better protection of the community’s substantive interests. International humanitarian law is a trailblazer of procedural and formal progress, yet a slacker in the substantive move toward what is commonly taken to be community interest: protecting the individual. The chapter further shows that alongside protecting the individual, the international community has a second competing substantive interest in the regulation of warfare: preserving military efficacy. International humanitarian law’s development highlights that progress in international law is more complex than the phrase “from bilateralism to community interest” suggests .

CIVIL ACTION IN CRIMINAL PROCEEDINGS AS A UNIVERSAL MEANS OF REDRESS FOR PECUNIARY AND NON-PECUNIARY DAMAGE CAUSED BY CRIME

2021 ◽  
pp. 64-79
Author(s):  
Sergey V. Potapenko ◽  
◽  
Vladimir A. Sementsov ◽  
Keyword(s):  
Civil Rights ◽  
Point Of View ◽  
Moral Injury ◽  
International Standards ◽  
International Treaties ◽  
Criminal Proceedings ◽  
Legal Standards ◽  
Procedural Law ◽  
Judicial Practice ◽  
The Individual

The article notes that sufficient reimbursement for injury to victims of crime is an urgent and global issue, for which solution international legal standards, which are regarded as general-ly recognized principles and regulations of international law and international treaties, as well as enactments containing their official interpretation, are significant. The article critically evaluates the point of view of some individual scientists who deny the need to stipulate the civil claim concept the in the Code of criminal procedure of the Russian Federation as it exists in modern Russian criminal proceedings not only due to the historical experience of the legislator, have long appreciated the evident advantages of the united proce-dure, but also in its consistency with foreign trends in the development of this concept, aimed at ensuring the implementation of international standards in the sphere of promotion and pro-tection of the human and civil rights. Despite the fact that the legislator applies different concepts in determining the conse-quences of torts (including crimes) in the regulations of substantive and procedural law as follows: harm and damage, there has been concluded that it is the injury (property or moral) that constitutes the attribute of obligations caused by the injury infliction, which allows the term to be used legitimately when covering issues of reimbursement for injury in criminal proceedings. Taking into account that a civil claim in criminal proceedings is a way to reimburse not only property, but also moral damage caused by a crime, the most urgent issues that need to be resolved are identified as follows: 1) lack of general doctrinal approaches to determining moral injury and its correlation with other types of injury; 2) inconsistency of the current investigative and judicial practice in determining the amount of compensation for moral injury; 3) ineffectiveness of procedural mechanisms for compensation for moral injury caused by a crime. The current judicial practice of refusing to satisfy claims for reimbursement of moral injury in the case of a crime against property, in the absence of violence against the victim and other actions affecting the life, health, and dignity of the individual has been recognized as not complying with the requirements of the law regulating the status of the victim and the civil plaintiff. According to the authors' point of view, the lack of unified approach to determining of the amount of moral injury caused by crimes is due to the evaluative nature of its definition, when there are no clear estimative criteria, which leads to a tendency to reduce the amount of reim-bursement, although reimbursement for moral injury in an adequate amount would more guarantee the restoration of violated rights of citizens in the sphere of criminal proceedings. Since moral injury can be the result not only of a crime, but also of illegal criminal prose-cution or illegal conviction of a person involved in its commission, it is necessary to establish a unified amount of reimbursement for the injury.

Drøftelse af flygtningebegrebets definition

1979 ◽  
Vol 48 (1-4) ◽  
pp. 139-141
Keyword(s):  
International Law ◽  
Nordic Countries ◽  
Precise Definition ◽  
The Other ◽  
General Definition ◽  
Refugee Status ◽  
Strict Adherence ◽  
High Commissioner ◽  
Definition Of ◽  
Legal Concepts

AbstractThe main subject of the debate was whether or not it is advisable to extend the concept of refugee beyond the present strict legal definitions and include more humanitarian concerns as suggested by Poul Hartling. On the one hand it was maintained in alia that — an extension of the international concept would create a discrepancy between the national concepts and the international concept — the concept of refugee applicable at the time of passing legislation concerning refugees still pertains — the quota-systems require strict adherence to legal definitions — the unsuccessful conference on territorial asylum proved the difficulty of adopting common norms of a broad humanitarian nature wrich is at the same time acceptable to governments - it was easier for the UNHCR in his pragmatic international work of a humanitarian administrative and social nature to adopt a wide concept, whereas the national refugee agencies whose problems is primarily that of issuing residence permits have to apply a more precise and narrow definition. Others took the view that — even in international law the concept of refugee is not totally static; in this respect it was mentioned that in spite of unmerous laws on refugees in Sweden, a precise definition has never been found - a liberal interpretation of existing written norms was called for rather than attempts to establish totally new definitions in a legally binding form - humanitarian concerns are not opposed to legal concepts; on the contrary, the legal concepts emerge from humanitarian and other political concerns — the definition in international law is to be considered a minimum norm. It was suggested that the refugee concept could be much wider in the field of assistance rather than in the field of protection. The dichotomy of having two refugee concepts, an international and a national come out as a practical problem when it comes to recognizing the refugee status. Theoretically, the dichotomy does not create serious problems, because the recognition is declaratory, not constitutive. In practical terms, there is a problem, however, because there is only one (effective) recognition of refugee status, the national recognition. It was noted that the High Commissioner often responded spontaneously to emergency situations involving wholely or in part groups of people falling beyond or on the verge of his mandate. The UN General Assembly, however, never failed to welcome such action thereby accepting a wider definition of UNCHR's mandate. The problems of de facto refugees were discussed. Reluctance was expressed towards extending the number of categories of refugees, e.g. by adding C and D categories to the A and B categories existing in the Nordic countries. It was preferable to extend the general definition of refugee in the manner of e.g. the Netherlands, Switzerland, or Sweden. A consequence of recognizing de facto refugees explicitly one way or the other was that the concept of de facto refugee would disappear. A common international definition which includes de facto refugees was called for. On the other hand, a warning was issued against adopting a very precise definition thereby creating new limits and new categories of people needing humanitarian assistance or protection but falling outside accepted categories. The problem of lacking international sanctions against countries which do not apply the international minimum standards was mentioned. It was pointed out, however, that the good offices and diplomatic initiatives of the High Commissioner often proved highly effective. Finally, a number of participants invited the High Commissioner to engage deeper into regional arrangements and to open a regional office in the Nordic countries.

scholarly journals The Ukrainian Crisis: A Test for International Law?

2017 ◽  
Vol 5 (1) ◽  
pp. 37
Author(s):  
Marcin Marcinko ◽  
Bartosz Rogala
Keyword(s):  
International Law ◽  
International Community ◽  
Legal Order ◽  
Self Determination ◽  
Political Crisis ◽  
The Political ◽  
Hybrid Warfare ◽  
Territorial Integrity ◽  
Ukrainian Crisis

The ongoing conflict in Ukraine raises significant questions related to the fundamental features of international law. The chief concern is the efficacy of the said legal order as well as territorial integrity and right to self determination. Since the political crisis has led to a military clash, so-called hybrid warfare and the rules on occupation are also discussed. It seems the current geopolitical scene has led to what some perceive as a watering down of the rules of international law and further exposure of the flaws of the UN. International law, however, despite its shortcomings and limitations, still offers valid solutions to the international community as a way to solve not only the discussed conflict, but also many others.

scholarly journals INTERNATIONAL LEGAL MECHANISM FOR ENSURING HUMAN RIGHTS

2021 ◽  
Vol 117 (4) ◽  
pp. 26-35
Author(s):  
MYKHAILOVSKYI Victor
Keyword(s):  
Human Rights ◽  
International Law ◽  
International Treaties ◽  
International Protection ◽  
National Minorities ◽  
Human Rights Council ◽  
High Commissioner ◽  
Occupied Territories ◽  
The Government ◽  
High Level

Background. The problem of protecting human rights has existed throughoutthe existence of mankind. Modern globalization affects the effectiveness of international institutions in the field of human rights. After all, the rapid processes of development and adoption of international documents in the field of human rights require not only worldwide recognition, but also unquestioning implementation. In this regard, the study of the mechanism for exercising the powers of the UN Human Rights Council in the temporarily occupied territories of Crimea and Donbas is especially relevant. The aim of the article is to establish a mechanism for exercising the powers of the UN Human Rights Council to respect and ensure human rights in Ukraine, in particular in the temporarily occupied territories of Crimea and Donbas. Materials and methods. Both general and special legal methods of cognition were used during the research. The normative basis of the study were international treaties, international law and the work of domestic and foreign scientists. Results. International protection of human rights is one of the most important branches of public international law. The creation of the United Nations has opened a new page in the field of human rights institutions. In order to promote and ensure human rights in Ukraine, in particular in the temporarily occupied territories of the Autonomous Republic of Crimea and Donbas, the UN Human Rights Council implements a number of mechanisms: closely cooperateswith the UN High Commissioner for Human Rights. periodic inspections. The UN Human Rights Council serves as a forum for discussing thematic issues on all human rights. Thus, within the high-level segment of the UN Human Rights Council, on February 23, 2021, for the third year in a row, the UN General Assembly debated on the agenda item «Situation in the Temporarily Occupied Territories of Ukraine» initiated by our state. Within the framework of this event, support for the sovereignty and territorial integrity of Ukraine was expressed. Conclusion. Ukraine’s cooperation with the UN Human Rights Council is increasing pressure from the international community to respect the rights of indigenous peoples, national minorities, social human rights, democracy and the rule of law. During the Russian aggression on the territory of Ukraine, the UN Human Rights Council adopted a resolution «Cooperation with Ukraine and its assistance in the field of human rights», an agreement was concluded between the Government of Ukraine and the Office of the UN High Commissioner for Human Rights. Ukraine. Thus, despite the recommendatory nature of the powers of the UN Human Rights Council, this international institution significantly affects the level of human rights in the temporarily occupied territories of Ukraine, and contributes to the further development of human rights in Ukraine. Keywords: human rights, UN Commission on Human Rights, UN HumanRights Council, Office of the UN High Commissioner for Human Rights, UN Human Rights Monitoring Mission.

scholarly journals Prawo do opieki dyplomatycznej i konsularnej – przyczynek do rozważań w świetle standardu międzynarodowego

2019 ◽  
pp. 143-162
Author(s):  
Krzysztof Kozłowski
Keyword(s):  
International Law ◽  
Host Country ◽  
Standard Of Care ◽  
Point Of View ◽  
Legal Standard ◽  
The Subject ◽  
Definition Of ◽  
The Individual ◽  
The Right ◽  
Subjective Rights

This article aims at analyzing the right to diplomatic and consular protection in the context of the standard resulting from international law. It tries to give a definition of this institution, pointing to its public and subsidiary nature. It also points out that diplomatic and consular assistance is carried out in a situation of conflict between the interests of the individual and the country of origin, and that of the host country. The article also discusses the subject and subject matter of consular and diplomatic care.                 Moreover, the study comments on the specific features of this right from the point of view of the complexity and effectiveness of the protection of rights at the international level. In this context it was pointed out that the right to diplomatic and consular protection is not a classic right, but can be considered as an instrument for the operation of other rights or freedoms. The right to consular and diplomatic care is devoid of homogeneous regulation, but also depends on the legal standard of care offered by the home state and must be within the limits set by the host country. The scope of its application may be related to any legal event that may occur when the entity is in a situation of contact with the legal system of the receiving state.                 The discussions under consideration highlighted the subsidiarity of the right to diplomatic and consular assistance for the exercise by the individual of his or her rights and freedoms. However, There is no complete protection standard in this respect, which is conducive to the lack of exhaustive regulation at the convention level, which, in extreme cases, can jeopardize the exercise by the individual of his or her subjective rights, that is to ensure its adequate protection standard in the territory of the host country.

scholarly journals The application of international treaties of the Russian Federation in the legal proceedings in arbitration courts of Russia

2017 ◽  
Vol 1 (3) ◽  
pp. 174-189
Author(s):  
Olga Kiseleva
Keyword(s):  
International Law ◽  
Russian Federation ◽  
System Analysis ◽  
Point Of View ◽  
Official Publication ◽  
Legal Analysis ◽  
International Treaties ◽  
Application Process ◽  
The Russian Federation ◽  
Commercial Courts

The article substantiates the necessity of a system analysis of the processes of applicationof the norms of international treaties by commercial courts of the Russian Federation. Thisneed is justified, at least, by the following: an insignificant amount of special research inthis field in comparison with a similar subject within the courts of general jurisdiction, thecreation of a relatively new body of supranational control over compliance with the normsof international treaties in the field of commercial courts’ practice.The purpose of the study is to identify problems of application of international treaties ofthe Russian Federation arbitration courts of Russia.The author uses methodology of formal legal analysis of Russian legislation and courts’ decisions.The results and scope of it’s application. The author, taking into account the specifics ofcommercial proceedings and the nature of disputes heard in commercial courts, proposedlegal grounds in a concentrated form which allow to state the existence of the obligation toapply the norms of international treaties by Russian commercial courts. Two levels of suchgrounds can be stated – international and domestic.Publication of the texts of international treaties as a problematic segment of their applicability.The article highlights one of the problematic segments of the application process ofthe norms of international treaties for the purpose of more detailed reflection. The practiceof commercial courts demonstrates that in both legislative acts and acts of applying law,the concepts of "official publication" and "bringing to the public" are alternated with eachother. Despite the reform, the procedure of official publication has not acquired the characterof a systemic institution of Russian law. This significantly complicates the activity ofadministering justice with respect to the legislative acts of international law.Conclusions. From the point of view of international law, the state, independently determiningthe procedure and methods of implementing international treaties within its legalsystem, is not limited in its ability to burden itself with the need to abide by additional proceduresnot provided by the international legal system of procedures. Official publication,as a necessary procedure for the entry of a legislative act into the force, represents such anadditional procedure designed to protect more effectively human rights and freedoms andto streamline law enforcement practice. In this connection, the author formulated the provisions,the implementation of which can help in matters of systematization of the institutionof official publication of international treaties of the Russian Federation.

scholarly journals Language Norms of International Treaties

2020 ◽  
Vol 11 (3) ◽  
pp. 532-544
Author(s):  
Natalia V. Alontseva ◽  
Yury A. Ermoshin
Keyword(s):  
International Law ◽  
Point Of View ◽  
Translation Theory ◽  
International Treaties ◽  
Syntactic Structures ◽  
Different Types ◽  
Important Means ◽  
Language Norms ◽  
Lexical Composition ◽  
International Document

This article discusses features of the implementation of linguistic norms in international treaties.The proposed study has a purpose to identify linguistic means present in international document texts, i.e. treaties that are to fix the agreement that parties achieve with a view to establishing relations and regulating them in future. The research material is 1000 texts of international treaties. The total amount of factual material analyzed is over 6000 pages. Our methodology is based on the works by domestic and foreign authors on general theory of speech activity, laws of perception and understanding of speech, and the peculiarities of the generation of a statement, translation theory, and international law. One of the most important means of expressing information in a text is its lexical composition. International treaties texts comprise different types of vocabulary (common, terminological, specialized, etc.) that performs text- and style forming functions. From the point of view of grammar, compiling international treaties involves using particular grammatical forms and categories, syntactic structures and types of phrases. The essence of international treaties texts implies the presence of special clichs of a business style. In the preparation and editing of international treaties, the adequate use of appropriate vocabulary and grammatical means leads to a reduction of ambiguities and discrepancies in the texts of these documents.

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