Legal State is the Goal of the Rule of Law

2020 ◽  
Vol 2 (4) ◽  
pp. 109-130
Author(s):  
V.V. Ershov ◽  
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal Positivism ◽  
The Rule Of Law ◽  
Word Combination ◽  
History Of Development ◽  
History Of ◽  
Definition Of ◽  
The Right ◽  
Legal Understanding

Introduction. The term “legal state” can be found in numerous international and national legal instruments, as well as in the works of contemporary scholars and scholars of previous generations. This word combination is widely used by politicians and lawyers. Its various applications dictate the need for a definition of the essence of the “rule of law” and its manifestations. Theoretical Basis. Methods. From the position of scientifically grounded concept of integrative legal understanding, according to which only principles and norms of law contained in a single, multilevel and developing system of national and international law forms implemented in the state, the article concludes that it is theoretically debatable that in the special literature, international and national legal documents and legal acts two separate concepts of “rule of law” and “legal state” exist. Results. The notion of the rule of law has a long history of development. In the relevant context, the concept appeared as early as in the writings of Plato and Aristotle. At present, there are also many scientific works devoted to the study of this issue, which is still relevant. The article analyses the notion of the “rule of law” from the perspective of legal positivism as well as the scientifically grounded and scientifically debatable concept of integrative legal understanding. Based on the results of the study, the author concludes that the concept of “the rule of law” has evolved in different historical epochs under the influence of social, economic factors, emerging scientific views, but is still incomplete. From the perspective of the scientifically based concept of an integrative legal understanding, the author believes that it is theoretically more reasonable to view the rule of law as the goal of regulating legal relations in a legal state, self-limited not only by “internal” law, but also limited by “external” law. Discussion and Conclusion. Concepts of the rule of law according to the types of legal understanding of the researchers can be classified into concepts developed on the basis of: legal positivism (‘thin’ concepts; scientifically debatable concepts of integrative legal understanding, arguably synthesising both the right and the wrong); scientifically substantiated concepts of integrative legal understanding. According to the latter approach, a valid legal state is not only self-limited by “internal” law, but is also limited by “external” law, and theoretically more precisely by the principles and norms of law contained in a single, evolving and multilevel system of national and international law forms.

scholarly journals PRINCIPLES OF INTERNATIONAL LAW AND THEIR ROLE IN CONFLICT RESOLUTION IN KOSOVO AND CRIMEA. Part 2

2019 ◽  
Keyword(s):  
International Law ◽  
International Community ◽  
Self Determination ◽  
Local Authorities ◽  
Territorial Integrity ◽  
Legal Norms ◽  
Conflict Situations ◽  
History Of ◽  
Definition Of ◽  
The Right

The second part of the article considers the issue of the contradiction of the realization of the right to self-determination and the principle of territorial integrity of Serbia and Ukraine on the example of Kosovo and Crimea. It presents an analysis of the legitimacy of the will expression of Kosovars and Crimeans and its compliance with the norms of international law. The preconditions and factors of the ethnopolitical conflict are examined and the main problematic issues that caused controversies between the central and local authorities in Kosovo and Crimea are identified. The article emphasizes that the result of the plebiscites in Kosovo (1998) and Crimea (2014) was the declaration of independence, denied by central authorities of Serbia and Ukraine and met with mixed reactions by the international community. The self-proclaimed republics have only external features of statehood and are subject to external administration of other countries. A latent opposition of geopolitical opponents in the international arena is noted, which is to some extent traced through the position on the recognition / non-recognition of Kosovo and Crimea. The article draws attention to the fact that inconsistent interpretations of certain principles of international law promote secession movements in countries where conflicts periodically arise between central and local authorities. The emphasis is placed on the necessity of a clearer definition of the aforementioned international legal norms and obligations undertaken by subjects of international law. The article holds that in order to avoid such situations as in Kosovo or Crimea, to eliminate conflicts related to the possibility of an ambiguous interpretation and application of the principles of international law, an internationally recognized system of more stringent and comprehensive measures should be introduced to cease and prevent threats to the territorial integrity of countries. A strong position of the international community on the abovementioned principles with the history of the liberation movements of these peoples taken into account should become the measure precluding the aggravation of conflict situations related to the aspiration of peoples for self-determination.

scholarly journals PROSPECTS FOR THE IMPLEMENTATION OF THE EUROPEAN ADMINISTRATIVE SPACE IN UKRAINE

2019 ◽  
pp. 116-120
Author(s):  
M. A. Boiaryntseva
Keyword(s):  
Rule Of Law ◽  
Public Authorities ◽  
The Rule Of Law ◽  
Legal Proceedings ◽  
National Courts ◽  
Administration Of Justice ◽  
Administrative Courts ◽  
Definition Of ◽  
The Right ◽  
Discretionary Powers

In the article the author determines the peculiarities of consideration and resolution of administrative disputes in foreign countries. The author emphasizes that the priority international and European principle of the implementation of justice is the observance of the rule of law. It has been determined that the contents of the precedents of the European Court of Human Rights testify that they not only contain substantive decisions, but also the norms whose application solves the problem of the interpretation of legal institutions, in particular, such as the principles of the administration of justice. The author stresses that the achievement of the requirements of ensuring the rule of law and the rule of law in accordance with European standards requires the definition of the limits of exercising discretionary powers by public administration bodies. The discretionary powers of public authorities and local self-government bodies cannot be unrestricted, and national courts should determine the limits of interference in their implementation. It is substantiated that the performed characteristic of the aforementioned normative legal acts allows us to conclude that it is necessary to study the principles of the implementation of legal proceedings in the European administrative space as a conditional "benchmark" of the development of the system of administrative courts established by the current legislation. It is stressed that the recommendations that require their implementation in the current administrative-procedural legislation include the implementation of such standards for the implementation of legal proceedings as foreseen requirements for the abolition of the right to appeal in the event that a person failed to comply with part of the court decision that provided for immediate enforcement; definition of procedure for pre-trial and extrajudicial settlement of administrative disputes. It is substantiated that borrowing from the experience of administrative tribunals established in the Anglo-Saxon judicial system, where administrative complaints are dealt with by specially authorized lawyers, is one of the possible ways of solving the problems of a significant load on the system of administrative courts of Ukraine. The author concludes that the effectiveness of the national justice system as a whole, and in particular, administrative justice, depends on the implementation and further implementation of international and foreign standards for the administration of justice.

scholarly journals LEGAL TECHNOLOGIES AND THE IMPLEMENTATION OF THE IDEA OF THE RULE OF LAW

2020 ◽  
Vol 16 (3) ◽  
pp. 126-137
Author(s):  
Елена Березина
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Legal System ◽  
Special Role ◽  
Legal Practice ◽  
Legal Doctrine ◽  
The Rule Of Law ◽  
Legal Standard ◽  
Russian Constitution ◽  
Legal Understanding

The article analyzes such a principle of the rule-of-law state as the rule of law, which is reflected both in the legal doctrine and in the legislation of many states of the world, as well as in international law, becoming an international legal standard. The content of this principle differs depending on the specifics of society legal system and a type of legal understanding. For uniform understanding and application of this principle, it is necessary to enshrine this principle in the Russian Constitution. The paper substantiates the following statement: while implementing the idea of the rule of law, a special role is played by legal technologies that allow the synthesis of legal science, legal practice and legal education in order to transform and improve the legal system of society.

THE DESOVEREIGNIZATION OF THE STATE: DEVIATION FROM THE PRINCIPLES OF INTERNATIONAL LAW OR AN OBJECTIVE NECESSITY

2018 ◽  
pp. 68-77
Author(s):  
Aleksey Vladimirovich Kondratyev ◽  
Svetlana Viktorovna Vorobyeva
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
The State ◽  
State Sovereignty ◽  
Limiting State ◽  
National Interests ◽  
The Rule Of Law ◽  
Economic Support ◽  
The Right ◽  
Stable Development

We examine processes of desovereignization and the loss of a state political subjectivity. Noted the necessity of research and analysis of state sovereignty in the context of globalization and threats to international peace, which affect the degree of independence of the state and require the search for legal and political levers to protect the monolithic right of the state to independence, inviolability and non-interference in internal affairs. Has been made an attempt to search for detect and establish acceptable grounds for limiting state sovereignty. It is established that the voluntary restriction of sovereignty with the transfer of powers to supranational entities has constructive consequences in the form of good-neighborly cooperation, financial and economic support of states from international financial institutions, etc. In cases where, in order to establish the rule of law, protect human rights and freedoms and under other good intentions, the policy of the state is interfered with by both the organs of the international community and individual states that have endowed themselves with the right of “international arbiter”, fears for the stable development of national states increase. It is concluded that any limitation of sovereignty should not lead to interference in the national interests of the state and to the loss of political and legal independence.

Retroactive Law and Proactive Justice: Debating Crimes against Humanity in Germany, 1945–1950

2010 ◽  
Vol 43 (3) ◽  
pp. 428-463 ◽  
Author(s):  
Devin O. Pendas
Keyword(s):  
World War Ii ◽  
International Law ◽  
Rule Of Law ◽  
Turning Point ◽  
Crimes Against Humanity ◽  
World War ◽  
The Rule Of Law ◽  
Domestic Courts ◽  
History Of ◽  
History Of International Law

The Nuremberg Trial may well be the most famous trial of the twentieth century, which is as it should be. After all, the Nuremberg Trial, while perhaps not as unprecedented as is frequently assumed, did mark a decisive turning point in the history of international law. It marked the first broadly successful attempt to impose the rule of law not just on the conduct of war but also, in a limited way, on domestic atrocities as well. The fame of this single trial has had the unfortunate side-effect of overshadowing the literally thousands of other Nazi trials that took place after World War II, however. These additional trials can be divided into three categories: those that took place in the domestic courts of victim nations, those that took place in occupation courts, and, perhaps least well-known, those that took place inGermancourts.

scholarly journals RULE OF LAW, STATELESS INDIANS AND EMPLOYMENT RIGHTS

2020 ◽  
Vol 11 ◽  
pp. 51-73
Author(s):  
Tamara Joan Duraisingam
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Second Generation ◽  
Research Question ◽  
Human Beings ◽  
Indian Community ◽  
Customary International Law ◽  
The Rule Of Law ◽  
The Right ◽  
Employment Rights

This paper focuses on the Rule of Law and it’s reach in terms of the stateless Indian in Malaysia. The term rule of law has been a term used by politicians to secure political mileage during election campaign periods and continues to be used upon formation of a new government. Regardless of its transcendent nature and noble assurance of a government of laws and not men, there would be gaps in the usage of the term rule of law as it does not reach all levels of community. As beneficent as the concept maybe, it does not serve to assist the stateless Indian community in securing employment in the state. Hence the significance of the research is to identify the gaps in the application of Rule of Law in Malaysia towards the stateless Indian. This study is a purely conceptual one which evaluates the constitutional concept of rule of law and its limitations in providing employment rights for Stateless Indians. The predominant research question is whether the Rule of Law as understood by constitutional philosophers helps mitigate the plight of the stateless Indian. It investigates that notion that perhaps stateless Indians are not stateless after all but have been given that categorisation so as to allow for their plight to be catapulted into the international sphere where customary international law and treaty law could in ideal circumstances apply to the stateless Indian. It proposes a thesis that regardless of how closely a State like Malaysia follows and upholds the rule of law, the stateless Indian Community in Malaysia will not necessarily enjoy second generation rights that ought to be made available to all human beings. The second generation right specifically referred to in this research is the right to employment for the stateless Indian.

scholarly journals The right to obtain information

2020 ◽  
pp. 343-362
Author(s):  
عبدالله ذنون عبدالله الصواف
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
Political Action ◽  
The State ◽  
Political Rights ◽  
Human Right ◽  
The Rule Of Law ◽  
Democratic Culture ◽  
Right To Information ◽  
The Right

The right to obtain information is closely related to the extension of democratic culture and the expansion of its influence within the societies by establishing the rule of law and the ability to govern honestly and vividly through the spread of information and making the citizen aware about it. Here, the trilogy of transparency, accountability and questioning is evident to make political action governed by controls that reduce opportunities for corruption and prevent the exploitation of power by not excluding any oversight bodies over all legislative, executive and judicial powers. The right to obtain information according to the traditional division of jurists of international law was considered among the civil and political rights, even if this division suffers from a kind of inaccuracy, as the right to information interferes with all rights, whether civil, political or economic, and other divisions that may arise because it is the basic principle for the exercise of any human right. The respect of this right is a measure of the state in its respect of the citizen and the extent of its democracy, or, as it is said, the oxygen of a democratic government. Proceeding from this, when any official party tries to prove its righteousness and respect for the citizen, the repetition of phrases interspersed with the word transparency, meaning that it has nothing to be afraid being declared. This suggests that the right of the citizen to obtain information is either a grant from the state, although there are legal bases that confirm that this right is in contrast to the state and it is permissible to compel any party to provide the information it hides while observing certain restrictions that may be related to national security or public order. Accordingly.

A Non-Aligned Crusade for International Law?

1989 ◽  
Vol 2 (2) ◽  
pp. 240-247
Author(s):  
Marcel Brus
Keyword(s):  
International Law ◽  
Early Development ◽  
Rule Of Law ◽  
Foreign Affairs ◽  
International Affairs ◽  
The Rule Of Law ◽  
Peaceful Settlement ◽  
The Pacific ◽  
History Of ◽  
The Hague

From 26 to 29 June the Ministers of Foreign Affairs of the Movement of Non-Aligned Countries convened at the premisses of the Peace Palace in The Hague to discuss the issue of peace and the rule of law in international affairs. This meeting was the start of a campaign for aDecade of International Law. This was the first occasion that an extraordinary ministerial conference of the Non-Aligned Movement was not held in one of its member countries. The Hague was chosen to underline the historic ties between this city and the (early) development of international law. This year it will be 90 years ago that the First Hague Peace Conference was held on the initiative of Emperor Nicholas II of Russia. This conference (together with the Second Hague Peace Conference of 1907) became a landmark in the history of the codification of international law and especially the development of mechanisms for the peaceful settlement of international disputes between states. The two most important conventions that were adopted at that conference were the Convention with Respect to the Law and Customs of War on Land and the Convention for the Pacific Settlement of International Disputes.

scholarly journals On the essentials of international law in Xi Jinping Thought on the Rule of Law

2021 ◽  
Vol 30 (60) ◽  
pp. 133
Author(s):  
Liu Huawen
Keyword(s):  
International Law ◽  
Rule Of Law ◽  
International Governance ◽  
Xi Jinping ◽  
Central Idea ◽  
The Rule Of Law ◽  
Work Related ◽  
History Of ◽  
Current Change ◽  
The Common

Xi Jinping Thought on the Rule of Law was formally established in November, 2020 at the First Central Conference on Work Related to Overall Law-based Governance in the history of the Communist Party of China (CPC). It includes a wealth of ideas about international law, which are embodied in his propositions on and accounts of international law, and it has been developed under the current change of the world situation never seen for a century. Essentially, for his thought on international law, the core principles are the Five Principles of Peaceful Coexistence, and the central idea is to promote building a community with a shared future for mankind, and the main proposition is that the common values of mankind be the guideline for the global governance and international law. As reflected in his thought on the rule of law, the international governance of law is also closely related to the domestic rule of law. His propositions concerning the international governance of law shall be the important guidelines for China to study and practice international law, and will promote and then lead the progress and development of contemporary international law.

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