scholarly journals The New Wars: Terrorism and “Asymmetric” Warfare

2021 ◽  
Vol 30 (4) ◽  
pp. 93-108
Author(s):  
Alexander Treiblmaier
Keyword(s):  
Rule Of Law ◽  
Legal Status ◽  
National Defense ◽  
Terrorist Organizations ◽  
The Rule Of Law ◽  
Asymmetric Warfare ◽  
New Wars ◽  
Terrorist Groups ◽  
Long Time ◽  
Rules And Principles

The term “new wars” is often used to describe how terrorist groups achieve objectives in addition to the “classic” means of intervention by states. Terrorist organizations use asymmetric methods of warfare to target the weaknesses of Western states. Consequently, conventional wars have also changed into hybrid wars. The legal status of terrorist organizations is a major problem for the rule of law. In responding to terrorist attacks, the distinction between crime and terrorism is difficult. The “war on terror” is governed by different rules and principles and is extremely difficult to wage. Conflicts last a long time and victory against terrorism is rarely possible due to the networked structure of terrorist organizations and the way they intermingle with the population. In addition to an alliance-wide approach, there is a national solution to answer these new threats in form of the comprehensive national defense in Austria.

scholarly journals Ensuring Guarantees of the Rights of the Individual and the Inalienability of his Legal Status in the System of Legal Regulation

2021 ◽  
Vol 1 ◽  
pp. 21-29
Author(s):  
Alexander Vladimirovich Konovalov ◽  
Keyword(s):  
Rule Of Law ◽  
Legal Status ◽  
Legal Regulation ◽  
Public Law ◽  
Synergistic Action ◽  
The Rule Of Law ◽  
The Core ◽  
Private And Public ◽  
The Individual ◽  
Different Levels

The article is devoted to the analysis of the general principle of law — ensuring guarantees of individual rights and the inalienability of his legal status. According to the author, they are provided by the synergistic action of private and public law regulation. The article convincingly shows that private and public law is a single system of values with different levels of generalization of terms and different methodology. At the same time, it is the private legal mechanisms that are the basis, the core of the rule of law.

scholarly journals La primauté du droit : la situation des immigrants et des réfugiés en droit canadien au regard des Chartes et des textes internationaux

2005 ◽  
Vol 28 (3) ◽  
pp. 585-624 ◽  
Author(s):  
Christian Brunelle
Keyword(s):  
Human Rights ◽  
International Law ◽  
Rule Of Law ◽  
Legal Protection ◽  
The Rule Of Law ◽  
Immigrants And Refugees ◽  
Long Time ◽  
International Obligations ◽  
The Impact ◽  
Discretionary Powers

The « rule of law » which for a long time was considered as an unwritten part of the Constitution now enjoys full constitutional status. Its enshrining in the preamble of the Canadian Charter sheds considerable light on the manner in which the rights and freedoms of the Charter should be perceived. The author opens his discussion by examining the impact that the constitutionalization of the « rule of law » has had on immigrants and refugees in Canada. As the Immigration Act of 1976 confers numerous discretionary powers which could result in their abusive use, the author analyses how the Human Rights charters applicable in Canada and in Quebec can insure the legal protection of immigrants and refugees. In the second part of his study, the author discusses the principal international texts ratified by Canada which have as their purpose the protection of the rights of immigrants and refugees. As international law is not « self-enforcing » in Canada, the author shows how the internal legal community conforms to the international obligations contracted by Canada.

scholarly journals Initiating a Non-Anthropocentric Jurisprudence: The Rule of Law and Animal Vulnerability Under a Property Paradigm

2013 ◽  
Vol 50 (4) ◽  
pp. 783 ◽  
Author(s):  
Maneesha Deckha
Keyword(s):  
Rule Of Law ◽  
Animal Rights ◽  
Legal Status ◽  
Cumulative Effect ◽  
Animal Suffering ◽  
The Rule Of Law ◽  
Canadian Law ◽  
The Individual ◽  
Level Of Importance ◽  
Court Of Appeal

This article discusses a recent Canadian entry to the accretion of legal texts which question, to various degrees, law’s anthropocentrism: the dissenting judgment of the Alberta Court of Appeal in Reece v. Edmonton (City of). Written by Chief Justice Catherine Fraser, the 162-paragraph dissent stands out in the Canadian landscape (and is impressive even in the international scene) given the existing Canadian law addressing animal issues that either regulate animals as objects and/or subordinate animal interests to human or corporate ones. This article argues that the dissent in Reece departs from the standard legal instrumentalist view of animals by providing a non-anthropocentric analysis of the animal interests at stake. The decision thus provides a new way of thinking about animals when compared to the existing Canadian jurisprudence. The dissent’s departure from the traditional anthropocentric legal view of animals is seen in three main ways: (1) the level of importance it assigns to the animal interest legally at issue by connecting it to the rule of law; (2) the respect it affords to critiques of animals’ current legal status (including the animal rights critique seeking to abolish the property status of animals and the default subordination of animal interests to human or corporate ones); and (3) the empathy and respect it gives to the individual animal at the heart of the legal dispute by recognizing her as a sentient and vulnerable being whose subjectivity matters. The cumulative effect is a judgment that not only provides the most sophisticated Canadian judicial analysis to date of the law’s relationship to animals, but impugns the traditional anthropocentric paradigm through which the law minimally responds to (some) animal suffering.

scholarly journals General Anti-Avoidance Rules Revisited: Reflections on Tim Edgar's "Building a Better GAAR"

2020 ◽  
Vol 68 (2) ◽  
pp. 579-611
Author(s):  
David G. Duff
Keyword(s):  
Rule Of Law ◽  
Tax Avoidance ◽  
Policy Response ◽  
The Rule Of Law ◽  
Consistent Manner ◽  
Rules And Principles ◽  
Subjective Element ◽  
The Relationship ◽  
Explicit Rule

In addition to the requirement of a tax benefit or advantage, the application of most modern general anti-avoidance rules (GAARs) turns on two elements: a "subjective element," which considers the purpose for which the transaction or arrangement resulting in the tax benefit or advantage was undertaken or arranged; and an "objective element," which considers the object or purpose of the relevant provisions to determine whether the tax benefit resulting from the transaction or arrangement is consistent with this object or purpose. Although these two elements are present in most modern GAARs, the function of each element within these rules and the relationship between them are often poorly understood. Other unresolved issues concern the roles of artificiality and economic substance in the application of these rules, and the relationship, if any, between these concepts and the "subjective" and "objective" elements of the rules. A final set of issues involves the uncertainty that GAARs may engender, the ability of judges to apply these rules and principles in a coherent and consistent manner, and the compatibility of these rules and principles with the rule of law. The author addresses these issues by reflecting on Tim Edgar's article "Building a Better GAAR." The first part of the paper considers the rationale for a general anti-avoidance rule or principle, arguing that such a rule not only represents a useful policy response to the harmful consequences of tax avoidance (the consequentialist argument that Professor Edgar espoused), but also may be justified on the non-consequentialist grounds that it protects the integrity of the provisions at issue and thereby upholds the rule of law. In the second part of the paper, the author builds on this analysis to consider the design of a general anti-avoidance rule or principle, arguing that it should be codified in the form of an explicit rule, should include subjective and objective elements such as the "purpose" and "misuse or abuse" requirements in the Canadian GAAR, and should be informed by concepts of artificiality and economic substance that apply to, respectively, the subjective and objective elements of the rule.

scholarly journals Presecular character of Montenegrin Law on Freedom of Religion in context of Fuller's demands for internal morality of law

2020 ◽  
pp. 7-26
Author(s):  
Vladimir Đurić ◽  
Vasilije Marković
Keyword(s):  
Social Context ◽  
Rule Of Law ◽  
Basic Principle ◽  
Legal Status ◽  
Religious Communities ◽  
Freedom Of Religion ◽  
The Rule Of Law ◽  
Material Sources ◽  
Internal Morality ◽  
The Law

The authors analyse the new Montenegrin Law on Freedom of Religion or Belief and the Legal Status of Religious Communities from two aspects: the aspect of the socio-political context of its adoption (material sources of law) and formal aspects of the provisions of the Law itself (formal source of law) in order to point out the serious imperfections of that Law. Regarding the first aspect, wider social context in Montenegro is analysed in comparison with European regulative principles of area of religious freedoms. As for the provisions of the Law itself, they are considered in the context of Fuller's theory of the internal morality of law and its 8 requirements that make law possible in order to examine in detail whether and to what extent the Law fulfils the principles of legality as a basic principle for realization of the rule of law. The conclusion of the analysis from both aspects is that the analysed Law is also full of imperfections and obviously incompatible with the values of the rule of law.

scholarly journals Globalisation as a facilitator of terroris

2018 ◽  
Vol 8 (1) ◽  
Author(s):  
MA. Genc Mekaj
Keyword(s):  
Rule Of Law ◽  
Terrorist Attacks ◽  
Gradual Change ◽  
The Rule Of Law ◽  
Cultural Boundaries ◽  
The World ◽  
Terrorist Groups ◽  
Economic Boom ◽  
Traditional Communities ◽  
Over Time

Terrorism is a phenomenon that develops over time, always bringing about gradual change of form and activity. Terrorist groups organize terrorist attacks based on ideologies. Terrorism is one of the biggest problems facing the world today. Terrorists are always at odds with the rule of law, with the norms and ideals of civilization itself. Terrorism is the use of fear or violence to overthrow a government and society in accepting a radical political or social change. It is geographically widespread and ideologically selected.The process of globalization, which includes the technological, economic boom, cultural boundaries between countries around the world has fostered a culture corrupt market in traditional communities. Many places consider this as a threat to their country. Globalization has somewhat helped terrorism, moreover has brought the involvement of the latest and latest technologies

scholarly journals Penyelesaian Tunggakan Kredit Ringan Dikaitkan Dengan Prinsip Kehati-Hatian Bank

2018 ◽  
Vol 2 (2) ◽  
pp. 247-257
Author(s):  
Lisa Ade Justicia ◽  
Darmawan Darmawan ◽  
Teuku Muttaqin Mansur
Keyword(s):  
Research Methods ◽  
Rule Of Law ◽  
Social Reality ◽  
Legal Action ◽  
The Rule Of Law ◽  
Savings Bank ◽  
Long Time

Penelitian ini bertujuan untuk mengetahui penerapan prinsip kehati-hatian pada pelaksanaan perjanjian kredit ringan di PT. Bank Tabungan Negara (Persero) Tbk mengetahui faktor penyebab terjadinya kredit macet pada kredit ringan di PT. Bank Tabungan Negara (Persero) Tbk serta untuk mengetahui penyelesaian yang ditempuh oleh PT. Bank Tabungan Negara (Persero)Tbk atas kredit ringan yang macet. Penelitian ini menggunakan metode penelitian yuridis empiris. Dimana hukum dilihat sebagai norma dan juga sebagai kenyataan sosial. Hal ini diperlukan dengan adanya pertimbangan untuk suatu aturan hukum yang berlaku dalam praktek dengan mewawancarai beberapa informan dan responden. Hasil penelitian menunjukkan bahwa kredit ringan tidak hanya dapat diambil oleh nasabah debitor yang mempunyai payroll di Bank BTN, namun juga berlaku nonpayroll. Kredit ringan tidak mengharuskan nasabahnya menyerahkan suatu objek untuk dijadikan jaminan. Oleh karena itu penyelesaian tunggakan kredit ini bisa saja membutuhkan waktu yang lama dalam penyelesaiannya karena memerlukan beberapa pertimbangan dan tindakan hukum agar nasabah debitor kembali membayar angsuran tepat waktu bahkan melunasinya. This study aimed to determine the application of prudential principles in the implementation of the Kredit Ringan agreement in PT. Bank Tabungan Negara (Persero) Tbk, the cause of bad credit and settlement pursued by PT. State Savings Bank (Persero) Tbk on Kredit Ringan that stalled. This study used empirical juridical research methods, where law is seen as a norm and as a social reality. This was necessary with consideration of the rule of law applicable in practice by interviewing some informants and respondents. The result of the research showed that not only the debtor customers who have payroll in BTN Bank are allowed to take Kredit Ringan, but this also applies to non-payroll customers.Kredit Ringan does not require its customers submit an object to be collateralized. Therefore, the settlement of credit arrears may take a long time because it requires some consideration and legal action for the borrower's customers to pay back the installment on time and even pay it off.

Rules for serving administrative arrest: analysis of proposals to modern legislation

2021 ◽  
pp. 182-187
Author(s):  
M. Spivak
Keyword(s):  
Human Rights ◽  
Rule Of Law ◽  
Legal Status ◽  
Legal Regulation ◽  
Social Orientation ◽  
Detention Facility ◽  
The Rule Of Law ◽  
Facility Placement ◽  
Administrative Penalty ◽  
The Given

The analysis of the legislation on the application of administrative arrest was carried out. It is established that the position of the legislator comes down to the fact that administrative arrest is the most severe measure of administrative penalty, which is applied in exceptional cases. Appointed only by a court decision (judge) if, in the circumstances of the case, taking into account the identity of the offender, the judge concludes that the application of other types of penalties will be insufficient. The uniqueness of administrative arrest is manifested in the fact that it is established for committing administrative offenses with a special anti-social orientation. The statistics of application of administrative arrest by types of administrative offenses and also number of persons on whom the given penalty is imposed on regions of Ukraine are resulted. It is emphasized that in practice administrative arrest as a type of penalty is used very rarely, in some cases its application is complicated by the procedure of its imposition. Attention is focused on certain provisions of the Draft Law “On the rules of administrative arrest” on the introduction of the principles of administrative arrest; features of the legal status of arrested persons; the procedure for placing a person in a temporary detention facility; placement of persons subject to administrative arrest; rights and responsibilities of arrested persons. The expediency of amendments to the Code of Ukraine on Administrative Offenses is analyzed. In particular, parts two of Article 32 (Administrative arrest), parts one of Article 294 (Entry into force of a judge’s decision on an administrative offense and revision of the decision), Article 326 (Execution of a decision on administrative arrest and detention on guard duty). As well as additions to the Code by Article’s 326–1 (Petition for the imposition of the pretext and its consideration), 326–2 (Execution of the decision on the exercise of the pretext) and 328–1 (Petition for suspension of the term of administrative arrest and its consideration). The author of the article proposes to amend paragraph 2 of Article 6 of the Draft Law “On the Rules of Administrative Arrest”. Thus, adhere to the principle of non-discrimination enshrined in art. 3 of the draft law. According to the author, it would be logical, if there is an established procedure, to establish liability for violation of the rules and conditions of administrative arrest in the form of a separate provision to the Code of Ukraine on Administrative Offenses. The general conclusion is that the adoption of the Laws “On Rules of Administrative Arrest” and “On Amendments to the Code of Ukraine on Administrative Offenses in connection with the adoption of the Law of Ukraine “On Rules of Administrative Arrest”” will improve the legal regulation of application and administrative arrest, as a type of administrative penalty, to address a number of issues that exist in this area, which will ultimately contribute to the rule of law and respect for human rights in the application of the penalty.

Ukrainian kleptocrats and America’s real-life House of Cards: Corruption, lobbyism and the rule of law

2017 ◽  
Vol 50 (1) ◽  
pp. 29-40 ◽  
Author(s):  
Taras Kuzio
Keyword(s):  
Rule Of Law ◽  
Real Life ◽  
Think Tanks ◽  
Washington Dc ◽  
Political Consultants ◽  
The Rule Of Law ◽  
House Of Cards ◽  
Political Forces ◽  
Long Time ◽  
European Values

Washington DC is not only a center for democracy promotion programs by government-funded and private foundations and think tanks. Washington DC has also attracted hundreds of millions of dollars for lobbyists, political consultants and think tanks from authoritarian political forces and kleptocrats who have little in common with American and European values. Both Republicans and Democrats have been recipients of these illicit funds from state officials and oligarchs who are seeking to ingratiate themselves with American public opinion. Political consultants, lobbyists, lawyers and think tanks which receive funds from such sources are part of a bigger problem of reverse corruption and cynicism and the export of authoritarian practices from Ukraine and post-Soviet states to the West. This was clearly seen in the hiring of Paul Manafort, Viktor Yanukovych’s long-time political consultant by US presidential candidate Donald Trump. Trump’s promise to ‘drain the (Washington) swamp’ rings hollow after it was revealed he accepted funds from a Ukrainian oligarch who had earlier donated funds to the Clinton’s (Reader 2016).

scholarly journals Constitutional court procedure and constitutional control in the field of lustration

2021 ◽  
pp. 99-115
Author(s):  
Oksana Shcherbanyuk
Keyword(s):  
Rule Of Law ◽  
Constitutional Court ◽  
Constitutional Courts ◽  
The Rule Of Law ◽  
Judicial Control ◽  
European Court ◽  
Long Time ◽  
The Law ◽  
Judicial Procedure ◽  
The Right

The article considers the constitutional court procedure and constitutional control in the field of lustration.  These issues are considered through the prism of the rule of law, its understanding by the Constitutional Court of Ukraine in its practice.  It is emphasized that the application of the principle of publicity and the requirements of increased publicity is due to the importance of cases heard by constitutional courts, as well as the results of judicial activity. Along with this, the issue of long-term consideration by the Constitutional Court of Ukraine of the law determining lustration is analyzed in detail. The study is updated by the fact that the European Court of Human Rights on the complaints of citizens of Ukraine found a violation of the right of the lustrated to a fair trial due to excessive time of national trials for their release.  It is concluded that the Law on Lustration should serve its most important function in establishing the rule of law in the country. In legal science there is a situation when the views of scholars on the essence of judicial procedure are contradictory, which gives rise to different understandings of this legal phenomenon by representatives of different scientific schools.  For a long time, the problem of judicial procedure was inextricably linked with the consideration of the category of the process, the essential idea of which significantly influenced the understanding of the limits of the procedure in law. The constitutional Court as the only organ of the constitutional-judicial control may be seen as a special (organized on a state basis), the carrier of the intellectual potential of theories of constitutional law.

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