Un péage à l'orée du bois? (Essai) | A tollbooth at the forest edge? (Essay)

2009 ◽  
Vol 160 (8) ◽  
pp. 244-246
Author(s):  
Olivier Guex

Does the principle of multifunctionality mean that the forest must fulfill every requirement put forward? Does the modern notion of “commodity”, drawn from the laws of supply and demand, give forest owners the right to expect payment for every service provided? In view of the current difficult economic situation and the increase and diversification of these requirements, the questions are justified. This article does not have the pretension to provide all the answers. However, by means of further questions and through the introduction of various examples, the reader is invited to consider the subtly differentiated proportions of the importance of the public interest on the one hand as opposed to that of private interests on the other, and thus to be able to draw conclusions. Thanks to this comparative assessment, possibilities concerning the magnitude and the source of these payments should become clear.

Author(s):  
Dirk Voorhoof

The normative perspective of this chapter is how to guarantee respect for the fundamental values of freedom of expression and journalistic reporting on matters of public interest in cases where a (public) person claims protection of his or her right to reputation. First it explains why there is an increasing number and expanding potential of conflicts between the right to freedom of expression and media freedom (Article 10 ECHR), on the one hand, and the right of privacy and the right to protection of reputation (Article 8 ECHR), on the other. In addressing and analysing the European Court’s balancing approach in this domain, the characteristics and the impact of the seminal 2012 Grand Chamber judgment in Axel Springer AG v. Germany (no. 1) are identified and explained. On the basis of the analysis of the Court’s subsequent jurisprudence in defamation cases it evaluates whether this case law preserves the public watchdog-function of media, investigative journalism and NGOs reporting on matters of public interest, but tarnishing the reputation of public figures.


2015 ◽  
Vol 66 ◽  
pp. 69-88
Author(s):  
Leonardo Burlamaqui

The core point of this paper is the hypothesis that in the field of intellectual property rights and regulations, the last three decades witnessed a big change. The boundaries of private (or corporate) interests have been hyper-expanded while the public domain has significantly contracted. It tries to show that this is detrimental to innovation diffusion and productivity growth. The paper develops the argument theoretically, fleshes it out with some empirical evidence and provides a few policy recommendations on how to redesign the frontiers between public and private spaces in order to produce a more democratic and development-oriented institutional landscape. The proposed analytical perspective developed here, “Knowledge Governance”, aims to provide a framework within which, in the field of knowledge creation and diffusion, the dividing line between private interests and the public domain ought to be redrawn. The paper’s key goal is to provide reasoning for a set of rules, regulatory redesign and institutional coordination that would favor the commitment to distribute (disseminate) over the right to exclude.Keywords: knowledge management, intellectual property, patent, public, interest, public sector, private sector, socioeconomic developmen


Author(s):  
A.P. Ushakova ◽  

From the standpoint of the dominant interest criterion the article examines the justification of the legislator`s decision to apply public law methods in order to regulate relations concerning the use of land for infrastructural facilities placing. The author gives the arguments in favor of understanding the public interest as the interest of the whole society as a system, rather than the interest of an indefinite range of persons or the majority of the population. The author concludes that there is the simultaneous presence in the specified legal relations and private interests of the participants of legal relations, and public interests of society as a system. Both types of interests in these legal relations are important, but in terms of different aspects of the legal impact mechanism. Public interest is important because its realization is the purpose of legal regulation of this type of legal relations, from this point of view it acts as a dominant interest. The private interest of the holder of a public servitude is important as an incentive to attract the efforts of private individuals to achieve a publicly significant goal. The private interest of a land plot owner is important from the point of view of securing the right of ownership. It is substantiated that the public servitude is not an arbitrary decision of the legislator, but an example of application of the incentive method in the land law, which provides a favorable legal regime for a socially useful activity.


2021 ◽  
Vol 10 (1) ◽  
Author(s):  
Shelly Kamin-Friedman ◽  
Maya Peled Raz

AbstractAs of the beginning of March 2021, Israeli law requires the presentation of a Green Pass as a precondition for entering certain businesses and public spheres. Entitlement for a Green Pass is granted to Israelis who have been vaccinated with two doses of COVID-19 vaccine, who have recovered from COVID-19, or who are participating in a clinical trial for vaccine development in Israel. The Green Pass is essential for retaining immune individuals' freedom of movement and for promoting the public interest in reopening the economic, educational, and cultural spheres of activity. Nonetheless, and as the Green Pass imposes restrictions on the movement of individuals who had not been vaccinated or who had not recovered, it is not consonant with solidarity and trust building. Implementing the Green Pass provision while advancing its effectiveness on the one hand, and safeguarding equality, proportionality, and fairness on the other hand may imbue this measure with ethical legitimacy despite involving a potential breach of trust and solidarity.


2018 ◽  
Author(s):  
Rob Kitchin

This paper considers, following David Harvey (1973), how to produce a genuinely humanizing smart urbanism. It does so through utilising a future-orientated lens to sketch out the kinds of work required to reimagine, reframe and remake smart cities. I argue that, on the one hand, there is a need to produce an alternative ‘future present’ that shifts the anticipatory logics of smart cities to that of addressing persistent inequalities, prejudice, and discrimination, and is rooted in notions of fairness, equity, ethics and democracy. On the other hand, there is a need to disrupt the ‘present future’ of neoliberal smart urbanism, moving beyond minimal politics to enact sustained strategic, public-led interventions designed to create more-inclusive smart city initiatives. Both tactics require producing a deeply normative vision for smart cities that is rooted in ideas of citizenship, social justice, the public good, and the right to the city that needs to be developed in conjunction with citizens.


Author(s):  
César Aguado Renedo

El estudio tiene por objeto el comentario de la STC 185/2012, de 17 de octubre, que declara inconstitucional el término «favorable» como condición imprescindible del informe del Ministerio Fiscal que el legislador establecía para que el juez pudiese decretar la custodia compartida de los hijos menores por sus progenitores separados cuando estos discrepaban entre ellos sobre la misma. La inconstitucionalidad declarada es doble: porque tal regulación vulneraba el principio de reserva jurisdiccional en favor de los jueces y tribunales que dispone el art. 117.3 CE y porque lesionaba el derecho a la tutela judicial efectiva garantizado en el art. 24.1 CE. La Sentencia tiene un Voto Particular disidente suscrito por varios Magistrados, que niega tales tachas: de un lado, poniendo como ejemplos algunas determinaciones legales sobre cuya constitucionalidad no hay duda y que en consecuencia avalarían la regulación cuestionada; y, de otro y sobre todo, fundando esa juicio de conformidad constitucional del precepto cuestionado en la doctrina del propio Tribunal acerca de la noción de «densidad normativa», que ampara al legislador para regular pormenorizadamente las materias objeto de su atención. El comentario pretende demostrar que los ejemplos con los que se compara en el Voto Particular la regulación declarada inconstitucional no son equiparables a ésta y que tal doctrina constitucional sobre la «densidad normativa» no resultaba aplicable tampoco a la misma. De modo que la imposibilidad de que el juez decretase la custodia compartida de menores en caso de desacuerdo de sus progenitores sobre ella si el informe del Fiscal era contrario (o simplemente neutro o inexistente) era, en efecto, disconforme con la exclusividad jurisdiccional de los jueces y no se compadecía con la tutela judicial efectiva en juego en tales supuestos.The study is about the STC 185/2012, which asserted the unconstitutionality the «favorable» term as a prerequisite of the report of the Public Prosecutor which the legislator established so the judge could impose the joint custody of the children by their parents separated when they disagreed among themselves for that type of custody. The unconstitutionality declared is twofold: because such regulation violated the principle of jurisdictional reservation in favor of the judges and courts proclaimed in the art. 117.3 CE, and because it quite the right to effective judicial protection guaranteed in the art. 24.1 CE. The decision has a dissenting opinion signed by four judges, which denies such studs: on the one side, taking as examples some legal determinations envelope whose constitutionality is no doubt and, that consequently warrantee the questioned regulation; on the other side, and above all, founding that his trial constitutional conformity in the Court’s doctrine about the notion of «normative density», which covers the legislator to regulate detail matters. The comment aims to demonstrate that the examples that are compared in the dissenting opinion declared unconstitutional regulation are not comparable to this, and that such a constitutional doctrine about the «normative density» was not applicable either to the same. So the impossibility that the judge imposed the shared custody of children in case of disagreement of the parents about it if the report of the Prosecutor was opposite (or simply neutral or non-existent) was, indeed, non-conforming with the jurisdictional exclusivity of the judges and violated the right to effective judicial protection at stake in such cases


2020 ◽  
Vol 20 (2) ◽  
pp. 333-360
Author(s):  
Jonathan Collinson

Abstract This article rationalises the case law of the European Court of Human Rights under Article 8 of the European Convention on Human Rights in deportation cases involving children. The Court engages in a balancing exercise between the right to family life of the deportee’s family on the one side, and the public interest in deportation on the other. This article expands on existing case law analysis by suggesting that in deportation cases, the Court considers Article 8 as a form of commonly held right, rather than an individual right held by one member of the family. Furthermore, the balance is argued to be constructed as a relationship between two factors on both sides, rather than of a sole factor on either side as being determinative. This article concludes that the best interests of the child (one of the ‘Üner criteria’) is not adequately reflected in the Court’s deportation decision-making practice.


Author(s):  
John T. Cumbler

When James Olcott spoke before Connecticut farmers for “anti-stream pollution,” he urged the public to mobilize to stop water pollution by “ignorant or reckless capitalists.” In identifying the “ignorant and reckless capitalists,” Olcott focused the attention of the farmers on industrial waste and the role of manufacturers in their search for profits in causing pollution. Although manufacturers and the courts argued that industrialization brought wealth and prosperity to New England and hence was a general good, Olcott challenged this idea. He saw the issue as a conflict between industrialization and its costs on the one hand and the public good on the other. Concern over industrial pollution and the potential conflict between it and public health had already arisen in Massachusetts. Although the Massachusetts State Board of Health realized that the interests of the “capitalists” and those of the public health officials might be in conflict, in 1872 it hoped that with improved knowledge, “a way will be eventually found to joining them into harmonious relations,” much as Lyman believed science and technology would resolve the conflict between fishers and mill owners. The board's interest in “harmonious relations” also reflected a realization that at least for the last several years, the courts had seen pollution as an inevitable consequence of civilization and had been favorable toward industrialists, especially if no obvious alternative to dumping pollution existed. In 1866, William Merrifield sued Nathan Lombard because Lombard had dumped “Vitriol and other noxious substances” into the stream above Merrifield's factory, “corrupting” the water so badly that it destroyed his boiler. Chief Justice Bigelow ruled that Lombard had invaded Merrifield's rights. “Each riparian owner,” the judge wrote, “has the right to use the water for any reasonable and proper purpose. . . . An injury to the purity or quality of the water to the detriment of the other riparian owners, constitutes in legal effect, a wrong.” In 1872, Merrifield again went to court, claiming the City of Worcester regularly dumped sewage into Mill Brook, by which the waters became greatly corrupted and unfit to use.”


2016 ◽  
Vol 1 (2) ◽  
pp. 357
Author(s):  
Fatbardha Doçi

In Albania reality are made a lot of surveys to predict the result of elections. It is so important to have the exactly result of the election of another items to predict. A prestigious company has done the survey in Albania reality, but they have “Forgotten“ that the Albania reality is different from the reality, because they have used the same questionnaires in Albania reality.It is so important to have the right measurement and to have the reliability and the validity of the survey. So we have types of measurement and in my research I have used one of them. If we used the right measurement, we can have a small margin of error and the result of the surveys should be the reliability than the other cases. I have decided to make the survey in Albanian reality lot of survey in two different realities. One of them I have used two kinds of sample, when one of them is systematic sample and another is quota sample. A comparison between two surveys is made providing the same questionnaire (with delicate questions) in the same place and time. The only difference was in the last step of the sample: one of the surveys has made the interviews based on the quota (gender, group age), whereas the other has used the systematic schema (with step – door by door). The margin decided by this way included also the one produced by the used of the quota. The expectation was a determination of differences between answers by this distinction.


2021 ◽  
Vol 138 (2) ◽  
pp. 325-368
Author(s):  
Michael Rhimes

Civil forfeiture powers are a useful tool in the fight against crime — particularly the organised kind. They deter such crime by removing the proceeds from wrongdoers, thereby diminishing the incentives for offending. However, as the courts in South Africa have long recognised, the forfeiture powers must be calibrated to ensure a fair balance between the public interest in crime deterrence and private interests such as the right to property. Achieving this balance when forfeiting proceeds is a vexed question which this article seeks to explore. It argues that while the forfeiture of proceeds will usually be justified by the legitimate aim of crime deterrence, forfeiture should nevertheless be subject to a proportionality check. This check is arguably required by the property clause in s 25(1) of the Constitution of the Republic of South Africa, 1996, and is justified by the need to constrain the breadth of the powers under the Prevention of Organised Crime Act. It then explores what situations might justify refusing forfeiture of proceeds, and how the proportionality check should be applied.


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