Theories of justification of diplomatic privileges and immunities: problems and ways of solution

2020 ◽  
pp. 74-79
Author(s):  
Marina Okladnaya ◽  
Yurii Burdai
Keyword(s):  
International Law ◽  
Host Country ◽  
Foreign Relations ◽  
Legal Status ◽  
Rapid Development ◽  
Criminal Prosecution ◽  
Main Body ◽  
Theoretical Justification ◽  
The Family ◽  
Problem Setting

Problem setting. The question of the theoretical justification for the existence of a significant number of privilegesand immunities enjoyed by a diplomatic agent has never lost its relevance. This is due to the fact that they are virtuallyunpunished and inviolable in the territory of the host country in the performance of their duties. D. B. Levin also paidattention to problematic issues concerning privileges and immunities. Scholars such as J. Brownie and V. M. Repetskynoted that the list of privileges should be complete given the rapid development of foreign relations between the subjectsof international law, while L. G. Falaleeva, V. V. Marakhovsky and P. M. Prybluda raised the question of unfoundednessof some privileges enjoyed by the diplomatic corps. The purpose of this work is to summarize the theoretical achievements concerning the argumentation of diplomaticprivileges and immunities, their use by members of the family of a diplomatic agent. We will also try to formulateproposals for possible innovations and restrictions on the legal status of the family of a member of the diplomatic corps. Analysis of recent research. At the doctrinal level, theories arguing for the use of diplomatic privileges and immunitiesby members of a diplomatic agent’s family are highly controversial. Among the modern works devoted to thesubstantiation of diplomatic privileges and immunities, it should be noted the works of Yu. G. Demin, D. B. Levin, V. M.Repetsky. Article’s main body. The article presents a detailed analysis of international law and the views of scholars and specialistsin this field, discusses current theoretical and applied issues of the theories of justification of diplomatic privilegesand immunities. Conclusions. After analyzing the theories of substantiation of diplomatic privileges and immunities, we concludedthat their presence is an integral part of the performance of their functions by a diplomatic agent of any rank. The purposeof such benefits and privileges is not to provide the diplomat with an additional opportunity to violate the law, but toensure his smooth exercise of his functions.The responsibility imposed on the accrediting country for acts committed in essence by persons who are not civilservants is too great and unjustified. We have also established that personal inviolability is an important aspect of theunimpeded stay of family members in the host country. But we propose to narrow this privilege, namely to establish arule that would provide for the possibility of criminal prosecution of a family member of a diplomatic agent, which entailsa sanction related to imprisonment in accordance with the national legislation of the host country.

An issue of legal personality of Kyivan Rus’ in Ukraininan law science

2021 ◽  
Author(s):  
Marina Okladnaya ◽  
Vadym Ptytsia
Keyword(s):  
International Relations ◽  
International Law ◽  
General Position ◽  
The State ◽  
Main Body ◽  
Complex Issue ◽  
Legal Personality ◽  
History Of ◽  
History Of International Law ◽  
Problem Setting

Problem setting. Legal personality of Kyivan Rus’ is very complex issue, which contains elements such as contract law, law of war, ambassadorial law, general position of the state in the international relations sphere. The condition of Kyivan Rus’ in medieval history can be determined only after analyzing researches of well-known scientists, who had different opinions on this subject. In spite of the fact that a lot of researches were made on this topic, there is no clear and unambiguous answer to the question: “was Kyivan Rus’ independent and equal subject of international law?” In our opinion, this topic is actual even nowadays, because without an analysis of the issue it is impossible to form a modern understanding of Ukrainian statehood and its features in different periods. Analysis of recent researches and publications. Valuable contribution to the research of Kyivan Rus’ position in international relations sphere were made by lots of scientists in areas of Ukrainian history and history of international law such as O. Zadoroznyi, P. Tolochko, O. Butkevich, A. Dmitriev, Y. Dmitriev, M. Kotlyar, V. Pashuto, D. Feldman, V. Butkevich, I. Shekera, O. Pavlenko etc. Target of research is to analyze and compare opinions of different authors on the issue of determining Kyivan Rus’ as legal entity of international law. To achieve this target these tasks have to be solved: to research and analyze modern scientists’ studies about the position of Kyivan Rus’ in international law sphere in medieval period; to compare scientists’ views on legal personality of the state and come to a certain conclusion on this issue. Article’s main body. In this article author analyzes different periods of Kyivan Rus’ existence, general position of the state in international relations sphere and opinions of different scientists on this subject. Also, the article provides a comparison of scientists’ views on the topic of legal personality of international law of Kyivan Rus’. Conclusions. Kyivan state in different periods of its existence was in various international legal positions. Despite of the fact, that features of international law of Kyivan Rus’ is a topic for controversy, Ukrainian and foreign scientists came to the conclusion that Rus’ was full-fledged subject of international law and after its collapse it revived in the Principality of Galicia-Volhynia, Zaporozhian Sich and the Cossack Hetmanate, Ukrainian People’s Republic, UkSSR (as independent UN member) and modern independent Ukraine.

scholarly journals Family Rights of the Child and Their Legislative Support

2021 ◽  
Vol 39 (71) ◽  
pp. 205-223
Author(s):  
Vitalii M. Cherneha ◽  
Liudmila V. Kuznetsova ◽  
Oleh V. Fedorchenko ◽  
Olena A. Kaminska ◽  
Sergіі V. Bezpalko
Keyword(s):  
International Law ◽  
Legal Status ◽  
State Level ◽  
Free Expression ◽  
Practical Implementation ◽  
Rights Of The Child ◽  
Legal Relationship ◽  
Parents And Children ◽  
The Family ◽  
Legislative Support

The objective of the study was to identify the legal mechanisms for the protection of the family rights of the child and to outline the main problems of their implementation. The child's family rights system was found to contain the child's intangible basic rights, which establish his or her legal status in the family. This system includes the child's right to life, name, citizenship, knowledge of his parents, care of parents, coexistence with parents, preservation of his identity and citizenship, free expression of his own views. It states that the protection of the family rights of the child and the legal relations of parents and children is based on four principles. It is determined that the practical solution of issues related to the exercise of the family rights of the child is regulated by international law, which makes it possible to resolve issues related to the legal relationship between parents and children at the inter-State level. It is concluded that perspectives on legislative support for the family rights of the child demand further empirical research, as well as a theoretical and methodological justification for determining the legal mechanisms of their practical implementation.

scholarly journals LEGAL PROTECTION ON INDONESIAN LABOR IN ABROAD

2018 ◽  
Vol 2 (1) ◽  
pp. 53
Author(s):  
Arpangi Arpangi
Keyword(s):  
International Law ◽  
Migrant Workers ◽  
Foreign Relations ◽  
Legal Protection ◽  
Foreign Minister ◽  
Active Role ◽  
Legal Aid ◽  
The Family ◽  
The Republic ◽  
The Government

The number of cases of migrant workers abroad need to establish protection which is able to overcome the problems or issues that have so far linked with the placement and protection of migrant workers, both before leaving for work and after returning to Indonesia. As stipulated in the Act no. 39 2004 Article 6 that the government is responsible for enhancing the protection of migrant workers abroad, so here takes an active role from the government on how to protect workers without pressure from other parties. In order to protect workers, it is also require the participation of various parties, such as the family of migrant workers, labor organizations, and other parties that exist. In order to provide protection to workers, it is not only the duty of the minister of labor alone, but also the duty of the foreign minister. This is in accordance with the wording of Article 19 (b) of Law No. 37 of 1999 on Foreign Relations, which is representative of the Republic of Indonesia is obliged to provide care, protection and legal aid to citizens and legal entities abroad Indonesia in accordance with national legislation and international law and practice.

Sports competitions as an atypical way to recognize ad hoc in international law

2020 ◽  
pp. 87-92
Author(s):  
Ivan Shchehlakov
Keyword(s):  
International Relations ◽  
International Law ◽  
Ad Hoc ◽  
The State ◽  
The Other ◽  
International Exchange ◽  
Intercultural Dialogue ◽  
Main Body ◽  
Legal Consequences ◽  
Problem Setting

Problem setting. Nowadays there are frequent cases of sports competitions between states, which are not formally a recognition of the state, but show the establishment of certain relations between the states, one of which does not recognize the other one. In addition, since the second half of the 20th century sport has become an integral part of international relations. Furthermore, it contributes to the intensification of international exchange, allowing people to establish intercultural dialogue and overcome political nature’s conflicts. Target research. To determine the legal consequences of sports competitions between states, one of which is not recognized by the other, and to find out whether these cases constitute an ad hoc recognition. Analysis of recent researches and publications. The topic of recognition in international law was an object of research of a large number of both domestic and foreign scientists, among which Janatayev H. M., Mitik O. V., Tunkin G. I., Holina E. A., Feldman D. Yi., whose doctrinal developments provide an important theoretical basis for studying the issue of determining atypical ways of an ad hoc recognition. Article’s main body. Features of ad hoc recognition were analyzed in the article. It was established that for an ad hoc recognition a participation of official representatives of the states in negotiations are important. It is also determined that competitions with the participation of Kosovo Republic and other states which did not recognize it, are recognition ad hoc. Conclusions and prospects of development. It is proposed to consider the participation of non-State entities, which are authorized by the State to represent it in certain sports, in preparation for inter-state competitions in which the states, one of which do not recognize the other one, take part as an ad hoc recognition.

Fear of the Wandering Gay: some reflections on citizenship, nationalism and recognition in same-sex relationships

2012 ◽  
Vol 8 (2) ◽  
pp. 268-282 ◽  
Author(s):  
Zvi Triger
Keyword(s):  
International Law ◽  
Legal Status ◽  
Proper Solution ◽  
Same Sex ◽  
Legal Subject ◽  
Sexual Deviancy ◽  
Law And Policy ◽  
The Family ◽  
History Of ◽  
Privileged Class

AbstractThroughout the history of the modern state, homosexuality has been a legal category, and not simply a medical or a psychiatric one. Fear of that legal subject manifests itself in law and policy not only about ‘the family’ but also about nationhood and citizenship. This is an article about this fear of the ‘Wandering Gay’, about the ways in which this fear has influenced domestic and international law regarding recognition in same-sex relationships, and about ways in which it can be overcome. I begin by introducing the Wandering Gay as a hidden driving cultural concept behind a state's reluctance (and in some places, outright objection) to recognise same-sex relationships. I then compare American and Israeli immigration policies concerning immigrants' sexuality, and discuss the different focuses of each system: while American policy (prior to its reform) was mainly concerned with ‘sexual deviancy’, Israeli policy was concerned with otherness, particularly non-Jewishness, in general. However, as I argue, homosexuality is one way in which individuals are ‘othered’ by Israeli immigration policy, since they cannot acquire legal status based on their marital status. I then contend that marriage is being used as a weapon against LGBT individuals, and that this is done from within a discourse that elevates marriage to a right that only heterosexual citizens are entitled to. I argue that marriage is used as a means of discrimination against minorities, and I question whether the proper solution to this violation of human rights is indeed to add more and more minorities to the privileged class of those who can marry, thus equipping them with the weapon of marriage to use against others.

scholarly journals Offences against Internationally Protected Persons: Problems of International Legal Qualification

2021 ◽  
pp. 61-77
Author(s):  
V. E. Tarabrin ◽  
R. A. Kantur
Keyword(s):  
International Law ◽  
Armed Conflict ◽  
Legal Status ◽  
Geneva Convention ◽  
Comparative Method ◽  
Criminal Prosecution ◽  
Legal Doctrine ◽  
The Status ◽  
Rules And Principles ◽  
The One

INTRODUCTION. The article examines various aspects of the international legal qualification of offences committed against internationally protected persons. The analysis of different elements of corpus delicti was laid at the heart of the study: namely, those of actus reus (whether the offence was perpetrate in the situation of an armed conflict), mens rea (whether the perpetrator was moved by a special intent, particularly the terrorist dolus specialis), and the legal status of a perpetrator (whether he or she was a state agent).MATERIALS AND METHODS. The materials of the study encompass international conventions, rules and principles of customary international law, case law of international courts and tribunals and international legal doctrine. The paper uses the comparative method and those of analysis and synthesis.  RESEARCH RESULTS. The key result of the study consists in the assumption that offences against internationally protected persons can be considered as either a conventional crime within the meaning of the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (including, if a terrorist dolus specialis is established, as a crime of terrorism), or (in case of armed conflict) a violation of laws and customs of war, for this category of persons falls within the definition of protected persons by implication of Article 4 of the 1949 IV Geneva Convention, which gives grounds for the application of Article 146 of the 1949 IV Geneva Convention for purposes of the their criminal prosecution.DISCUSSION AND CONCLUSIONS. Given the result of the study, it is states that the following test can be applied for purposes of international legal qualification of offences against internationally protected persons: first, it is necessary to establish whether the offence of committed in a situation of armed conflict; second, it is highly important to enquire about the intent of the delinquent. If there is a terrorist dolus specialis, the offence can be qualified as terrorism-related. Moreover, it is necessary to establish the status of the delinquent and whether the one is a state agent or a private person, or, even if the person is a state agent, whether the one is a person acting sua sponte; additionally, the status of a delinquent and its relation with the belligerent state in regard to the situation of armed conflict is also significant for the qualification of respective offences in light of international law

scholarly journals Some current issues of classification of legal guarantees in labor law

2020 ◽  
pp. 63-67
Author(s):  
Maryna Pyzhova
Keyword(s):  
Rule Of Law ◽  
Legal Status ◽  
Labor Relations ◽  
Labor Law ◽  
Labor Rights ◽  
Main Body ◽  
The Rule Of Law ◽  
The Right ◽  
Problem Setting

Problem setting. Today, Ukraine is going through times of change in the whole society. In view of this, the issue of legalguarantees and their implementation is extremely important, because they are the legal means that should ensure the unimpededrealization of the whole set of his rights, including labor rights. Article 43 of the Constitution proclaims the right of everyoneto work and a number of other rights related to labor relations. At the same time, if a system of legal guarantees for the realizationof labor rights is not developed, the proclaimed rights can be described as declarative.Describing the guarantees provided by labor law, we say that they provide a transition to the actual implementation of theopportunities enshrined in law, that is, they are needed for the exercise of rights and freedoms, and for responsibilities. It seemsthat the realization of rights, freedoms and responsibilities, in fact, is only part of a more general problem – the application oflaw and the rule of law. Analysis of recent research. The works of many labor scientists, in particular: N. Bobrova, M. Vitruk, D. Karpenko, T.Markina, P. Nedbayl, K. Urzhinsky, are devoted to the study of guarantees in labor law V. Skobelkin, O. Smirnov, N. Stolyar,L. Surovskaya, O. Yaroshenko and others. Target of research is to consider and characterize the classification of legal guarantees in labor law. Article’s main body. The article considers topical issues of classification of legal guarantees in labor law. The variousclassifications proposed by scientists are covered, their analysis is carried out. It is noted that there should be an awarenessof the purpose of establishing legal guarantees, first of all – to ensure the fullest exercise of the rights granted to employees.It is concluded that the system of legal guarantees of labor rights of the employee should be effective both quantitativelyand qualitatively. The number of legal guarantees must be sufficient, optimal, and the means, methods and conditionsthemselves must be real. Conclusions and prospects for the development. Thus, there is no single generally accepted classification of legalguarantees in labor law. At the same time, the totality of all the above legal guarantees is an independent element of thecontent of the legal status of the employee. By their regulatory influence, they cover all stages of labor relations, affectcertain parties directly related to labor relations.

scholarly journals Some considerations on the application of measures of influence for offenses in the informational field

2020 ◽  
pp. 52-59
Author(s):  
Susanna Vodoriezova
Keyword(s):  
Rapid Development ◽  
Legal Responsibility ◽  
Main Body ◽  
Coercive Measures ◽  
Depth Analysis ◽  
State And Society ◽  
The Subject ◽  
Lawful Conduct ◽  
Theoretical Issues ◽  
Problem Setting

Problem setting. The article is devoted to the study of general theoretical issues on the peculiarities of the application of measures of influence for offenses in the informational sphere, identifies the types of liability for offenses in the informational sphere. Target of research. The purpose of this article is to analyze the measures of legal influence for violations of the law in the informational sphere. Analysis of recent researches and publications. Issues related to the study of the peculiarities of the application of measures of influence for offenses in the informational sphere, were the subject of research by such scientists as: V. V. Belevtseva, A. O. Volkova, I. F. Korzh, V. Ya. Nastyuk, G. M. Pisarenko and others. However, given the rapid development of informational relations, existing approaches to their regulation, including relations on the application of measures of influence in the informational sphere, need to be reconsidered and updated. Article’s main body. Considering the category of “measures of influence”, it should be emphasized that measures of legal responsibility are only part of the whole system of measures of influence that can be applied to the offender. It should be emphasized that the measures of legal responsibility for their intended purpose are punishable, ie the purpose of their application is to punish the subject for deviation from the lawful conduct provided by law. At the same time, the purpose of applying measures of influence is not only to punish the offender. Measures of influence can be used to restore the violated rights, to ensure the existing state of legal relations before their commission, the cessation of offenses, etc. In fact, the category of “measures of influence” in its content is broader than “legal liability”. Conclusions and prospects for the development. Тhe intersectoral nature of the current information legislation of Ukraine necessitates further in-depth analysis of measures of influence for offenses in the informational sphere in order to ensure informational security of man, state and society. Specific examples indicate that measures of influence for informational offenses can be divided on the following grounds: a) purpose (security, suspending and punitive); b) values - basic and additional (within a specific coercive measure); c) variability - non-alternative (only a specific measure of influence is envisaged for the relevant offense) and alternative (several coercive measures are envisaged for the commission of a specific offense, the person authorized to apply coercive measures has the opportunity to choose); d) the procedure for application - judicial and extrajudicial.

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