scholarly journals Jurisdictional Issues in the Digital Age

2021 ◽  
Vol 10 (1) ◽  
pp. 167-183
Author(s):  
Yulia Razmetaeva ◽  
Hanna Ponomarova ◽  
Iryna Bylya-Sabadash
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Digital Age ◽  
Legal Framework ◽  
Regulation Mechanism ◽  
Legal Systems ◽  
Negative Consequences ◽  
Effective Response ◽  
Judicial Practice ◽  
Universal Human Rights

The article addresses some aspects of the key challenges for legal reality and legal systems in the digital age with a focus on jurisdictional issues in special attention to cyberspace, given its independent value and self-regulatory nature. The article suggests that regarding issues through the prism of a universal human rights approach could be a pillar for resolving existing and potential digital conflicts, prevent cybercrimes. The general legal framework in light of this approach is proposed here. The article discusses scenarios for solving jurisdictional problems: (i) global—focuses on the idea that a single worldwide legal framework and a universal regulation mechanism are possible; (ii) fragmented—partly considers the possibility of a single legal framework (or a set of agreements) and rely mainly on regional mechanisms; and (iii) national—each legal system is capable of providing and effective response to the threats of the digital age and aligns its legislation and judicial practice with the latter. Finally, it is suggested to focus on the prevention and mitigation of negative consequences of the activities of all subjects of law.

scholarly journals THE ROLE OF JUDICIAL PRACTICE IN THE LEGAL SYSTEM: RUSSIAN EXPERIENCE IN THE WORLD CONTEXT

2017 ◽  
pp. 40-49 ◽  
Author(s):  
Виктор Момотов ◽  
Viktor Momotov
Keyword(s):  
Legal System ◽  
Negative Attitude ◽  
Case Law ◽  
Legal Framework ◽  
Legal Systems ◽  
Legal Norms ◽  
Judicial Practice ◽  
The Usa ◽  
Anglo American

In Russian legal science there is a wide-spread belief according to which legal precedents are not sources of Russian law, because Russian legal system forms a part of continental legal system. Various researchers believe that judicial practice does not contain legal norms and consequently case law is not a component of Russian legal framework. The present paper contains the theoretical and historical legal research of the place and role of case law in Anglo-American and continental legal systems. It’s shown that for long historical periods legal precedents were recognized as sources of law not only in Great Britain and the USA, but also in major European legal systems, while at the present time differentiation of legal systems with respect to their attitude towards case law is becoming outdated. Furthermore, based on the research of various legal scholars’ traditions (principally of the positivistic and the sociological traditions) this article demonstrates that negative attitude towards case law is largely determined by the formalistic and obsolete understanding of the term ”source of law”, coming from the misinterpretation of positivism. The paper also presents the current development trends of case law as a source of law. In particular the article outlines the proactive interpretations of new statutory provisions issued by the Plenum of the Supreme Court of the Russian Federation, the global uniqueness of such interpretations and the influence of scientific–technological progress and public needs on the highest court’s interpretations. The mutual interference of case law and statutory law is shown.

Tourism as a Tool for the Fulfilment of the Rights to Rest and Leisure Enshrined in Article No. 24 of the Universal Declaration of Human Rights

2019 ◽  
Vol 76 (3-4) ◽  
pp. 180-188
Author(s):  
Bianca Nicla Romano
Keyword(s):  
Human Rights ◽  
Legal System ◽  
Universal Declaration ◽  
Title V ◽  
Negative Consequences ◽  
Real Right ◽  
Right To Work ◽  
The Individual ◽  
The Right ◽  
Italian Constitution

Art. 24 of the 1948 Declaration of Human Rights recognises and protects the right of the individual to rest and leisure. This right has to be fully exercised without negative consequences on the right to work and the remuneration. Tourism can be considered one of the best ways of rest and leisure because it allows to enrich the personality of the individual. Even after the reform of the Title V this area is no longer covered by the Italian Constitution, the Italian legal system protects and guarantees it as a real right, so as to get to recognize its existence and the consequent compensation of the so-called “ruined holiday damage”. This kind of damage has not a patrimonial nature, but a moral one, and the Tourist-Traveler can claim for it when he has not been able to fully enjoy his holiday - the essential fulcrum of tourism - intended as an opportunity for leisure and/or rest, essential rights of the individual.

Do Discrimination and Inequality Exist in the Russian Legal System? International Law, National Legislation and Judicial Practice

2009 ◽  
Vol 34 (3) ◽  
pp. 211-238
Author(s):  
Sergei Iu. Marochkin
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal System ◽  
Legal Norms ◽  
Judicial Practice ◽  
Administration Of Justice ◽  
Russian Constitution ◽  
Protection Of Human Rights ◽  
Negative Phenomena ◽  
Law Making

AbstractIn this article, the author discusses the problem of ensuring equality and non-discrimination in a legal system. Equality and non-discrimination constitute universally recognized standards in the protection of human rights. At the same time, one can hardly assert that the universal community has put an end to discrimination. The author considers the problem as applied to the Russian legal system. The standard is incorporated in the Russian Constitution still remains topical in Russia. Based on his analysis of legislation and judicial practice, the author concludes that the problem reveals itself on the levels of both law-making and law application, the latter including administration of justice. As one of the conclusion, the author raises a question: is legal discrimination inherent in a legal system like other negative phenomena, such as delinquency, incoherencies, lacunas, defects, conflicts of legal norms and breaches of law-making procedural rules?

scholarly journals Dilemmas about the scope of the Act on Prevention of Domestic Violence from a human rights perspective

2020 ◽  
Vol 66 (4/2019) ◽  
pp. 193-206
Author(s):  
Darko Simović
Keyword(s):  
Domestic Violence ◽  
Human Rights ◽  
Legal System ◽  
Legal Framework ◽  
The Other ◽  
Effective Prevention ◽  
Other Hand ◽  
International Obligations ◽  
The Republic ◽  
The One

The adoption of the Act on Prevention of Domestic Violence was driven by the creation of a more effective legal framework for the protection of victims of domestic violence, and, therefore, also by the alignment of the legal system of the Republic of Serbia with international obligations. The main novelties include multi-sectoral cooperation and primarily preventive nature of the law. However, from its very adoption, it has been pointed to its noticeably repressive character, as well as to provisions with potentially harmful impacts. Hence, this paper represents a contribution to the discussion on the importance and scope of the solutions provided for in the Act on Prevention of Domestic Violence. On the one hand, it points to major novelties intended to contribute to a more effective prevention of domestic violence. On the other hand, it questions the constitutionality and appropriateness of some of the legal solutions, arguing that, in particular respects, the lawmaker had to use a wiser and more subtle approach to conceptualising the provisions of this law.

State Immunity and Fundamental Human Rights

1998 ◽  
Vol 11 (1) ◽  
pp. 9-43 ◽  
Author(s):  
Magdalini Karagiannakis
Keyword(s):  
Human Rights ◽  
International Law ◽  
Legal System ◽  
Case Law ◽  
Legal Systems ◽  
State Immunity ◽  
Analytical Approaches

Should state immunity from jurisdiction be denied to states that violate fundamental human rights in breach of international law? This article critically discusses three analytical approaches which can be used to answer the question at the level of international law. These approaches are derived from a review of principles of state immunity and fundamental human rights, including ius cogens. The article goes on to examine why the results dictated by these approaches at the level ot international law may not be reflected by municipal legal systems, using US domestic statutes and case law as an example of how a domestic legal system has dealt with this question.

Judicial navigation as official law meets culture in Turkey

2008 ◽  
Vol 4 (1) ◽  
pp. 35-61 ◽  
Author(s):  
Esin Örücü
Keyword(s):  
European Union ◽  
Human Rights ◽  
Conceptual Framework ◽  
Legal System ◽  
Union Membership ◽  
Legal Framework ◽  
Traditional Values ◽  
Human Rights Law ◽  
The People

This article aims to assess the work of the courts as navigators when law meets culture in Turkey, where the culture of the official legal system and the culture of the people do not always accord. First the conceptual framework used is analysed, then readers are introduced to the peculiarities of Turkish law and socioculture, and finally, the work of the judge is considered. Selected cases are in three groups: cases where courts face culture contrary to the vision embodied in the official legal framework; then, where courts face culture which can be catered for within the legal framework, though not in keeping with it, and now need revision because of the aspired European Union membership; and finally, where courts face demands of further Europeanisation and human rights law from the outside, which may or may not fit in the framework or the traditional values of the people.

EVIDENCE AND PROOF IN CIVIL PROCEDURE LAW OF UKRAINE: COMPLIANCE WITH INTERNATIONAL STANDARDS

2018 ◽  
Author(s):  
Anton Busakevych ◽  
◽  
Oleksandr Pryvydentsev ◽  
Keyword(s):  
Human Rights ◽  
National Level ◽  
Legal Framework ◽  
Civil Procedure ◽  
International Standards ◽  
Legal Systems ◽  
Global Trends ◽  
European Court ◽  
Civil Proceedings ◽  
Evidence And Proof

The article is devoted to the consideration of the legal nature of the institution of proof in civil proceedings and the compliance of national norms with international standards. The legislative definition of the concept of evidence, enshrined in the Civil Procedure Code of Ukraine, is analyzed and some features of evidence in foreign countries are considered. The authors note that in order to conduct an effective comparative analysis of the evidentiary procedure in Ukraine and abroad, it is advisable to study the case law of the European Court of Human Rights, as one of the main institutions whose jurisdiction extends to all member states of the Council of Europe and improve national legislation and bring it into line with international standards. It should be noted here that in all legal families the institution of proof is the cornerstone of justice. The development of legal systems was due to the systematic reform of procedural legislation, the creation of new models aimed at meeting the requirements of the time. The European Court of Human Rights, using the traditions and features of common and continental law, has repeatedly stated that the future position of the court in resolving this conflict between the parties and making a reasoned decision depends on the quality and completeness of the evidence presented. The recommendations contained in the court decisions reflect the progressive trends of both legal systems and are aimed at strengthening guarantees of justice at the national level. According to the authors, the foundations have already been laid for the formation of a new perception of the institution of evidence in Ukraine, as its reform took place taking into account European standards of civil proceedings and under the influence of global trends in this area. However, this process is currently incomplete and needs to be intensified with the need to develop clear criteria for assessing evidence at the level of national law, which would apply the court to the case, as is the case in the Anglo-Saxon legal system. The authors draw attention to the fact that today in Ukraine it is appropriate to introduce a "standard of proof" in civil proceedings, i.e. the use of a balance of probability to assess the circumstances of the case. The article also analyzes the gaps in the legislation on the issue raised in the topic of the work, in particular, offers proposals for improving the legal framework of Ukraine to improve the procedure of proof in civil proceedings.

Human rights: Early days or coming to an end?

2018 ◽  
Vol 36 (4) ◽  
pp. 311-318
Author(s):  
Morten Kjaerum
Keyword(s):  
Economic Theory ◽  
Human Rights ◽  
Rule Of Law ◽  
Tax Evasion ◽  
Liberal Democracy ◽  
Local Communities ◽  
The Other ◽  
Negative Consequences ◽  
Universal Human Rights ◽  
End Times

The speech addresses how human rights are being challenged and to what extent we are witnessing the end times of human rights. Neo-liberalism and populism coming from different corners converge and contribute to the erosion of human rights as well as rule of law institutions. Attempts to link human rights to one or the other economic theory contribute to lifting human rights away from their status of being universal. Human rights are not there to substitute ideological systems, instead it is a far more limited project. In the latter part of the speech new bottom-up trends pulling in the opposite direction are highlighted. As an outcome of the financial crisis and the growing inequality, a stronger awareness has emerged globally about the negative consequences of corruption and tax evasion on human rights and democratic institutions. Human rights are regaining a momentum and credibility in that space. This is closely linked to the new human rights city movement, where local communities take greater responsibility in realizing human rights for their citizens. Finally, in this part the mainstreaming of human rights in laws and political strategies is addressed together with the concept human rights by design. The speech ends on a forward-looking note recognizing the immense challenges that confronts the liberal democracy and human rights currently, however, also recognizing the depth of human rights in most communities.

scholarly journals The legal system for horse protection in ancient China

2021 ◽  
Vol 12 (3) ◽  
pp. 28-42
Author(s):  
Lihong Gao ◽  
Da Su
Keyword(s):  
Animal Welfare ◽  
Legal System ◽  
Good Life ◽  
Legal Framework ◽  
Legal Systems ◽  
Ancient China ◽  
Animal Protection ◽  
Ecological Awareness ◽  
The Face ◽  
History Of

The concept of "animal welfare" originated relatively recently and refers to fulfilling the basic needs of animals to avoid unnecessary suffering. However, in ancient China, ecological awareness similar to current “animal welfare” had already been awoken and codified in the form of a series of legal systems, among which were specific regulations for horses that entailed giving them a good life, as well as a series of “animal welfare” regulations more in line with the current sense, such as not hitting them in the face, nor using genetically related horses for breeding. This paper analyses the current legal framework of animal protection to trace the legal system on horse protection throughout the history of China.

scholarly journals The global flood of COVID-19 contact tracing apps: sailing with human rights and data protection standards against the wind of mass surveillance

2021 ◽  
Vol 92 ◽  
pp. 01035
Author(s):  
Irena Nesterova
Keyword(s):  
Human Rights ◽  
Data Protection ◽  
Value Added ◽  
Legal Framework ◽  
Global Scale ◽  
Fundamental Rights ◽  
Contact Tracing ◽  
Effective Response ◽  
Democratic Principles ◽  
Mass Surveillance

Research background: Countries all around the world are rapidly introducing contact tracing apps and other surveillance technologies to tackle the spread of COVID-19 raising serious concerns about human rights and democratic principles. Purpose of the article: The article aims to analyse how human rights and data protection law regulate the COVID-19 contact tracing apps and reveal the biggest challenges that countries face in applying the essential requirements. Methods: The article will analyse the legal framework and compare many guidance documents issued by the international organisations, including the Council of Europe, the OECD and many EU institutions on the data protection requirements for contact tracing tools and the main challenges the governments face in different countries. Findings & Value added: The article will reveal that the existing human rights and data protection standards already impose significant requirements for contact tracing apps requiring to comply with such principles as legality, necessity, proportionality, transparency, purpose limitation, temporariness. Although countries tend to deviate from some of these standards a choice between effective response to crises and fundamental rights should not be made. The article argues that the global flood of digital surveillance technologies requires new regulatory framework and governance mechanisms to enable impact assessment, oversight and monitoring of these technologies both during and after the crises not only to ensure that they are lawful and ethical, but also to limit the dependency of governments on large technology companies as well as to prevent mass surveillance becoming the new normal on a global scale.

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