scholarly journals Prawo do strajku generalnego. Rozważania de lege lata i de lege ferenda

2021 ◽  
Vol 28 (4) ◽  
pp. 269-291
Author(s):  
Janusz Żołyński
Keyword(s):  
Public Sphere ◽  
International Law ◽  
The State ◽  
Eu Law ◽  
Social Sphere ◽  
The Right ◽  
General Strike

The right to a general strike. Considerations de lege lata and de lege ferenda The right to political (general, universal) strike is undoubtedly polycentric in nature, since in order to properly decode and interpret it, it is necessary to refer to both axiology, philosophy and national and international law, including EU law. Moreover, a political strike is in fact not only a result of axiological assumptions, accepted philosophical or doctrinal and political considerations. It manifests the state of the State and the level of democracy in terms of the struggle for the improvement of working and remuneration conditions, social sphere or public sphere.

The Scope and Content of Section 75(1)(a) of the Zimbabwean Constitution: An International Law Approach

2020 ◽  
Vol 53 (2) ◽  
Author(s):  
Chiedza Simbo
Keyword(s):  
International Law ◽  
Education System ◽  
Basic Education ◽  
The State ◽  
Education Act ◽  
The Government ◽  
The Right ◽  
Basic Education System

Despite the recent enactment of the Zimbabwean Constitution which provides for the right to basic education, complaints, reminiscent of a failed basic education system, have marred the education system in Zimbabwe. Notwithstanding glaring violations of the right to basic education by the government, no person has taken the government to court for failure to comply with its section 75(1)(a) constitutional obligations, and neither has the government conceded any failures or wrongdoings. Two ultimate questions arise: Does the state know what compliance with section 75(1)(a) entails? And do the citizens know the scope and content of their rights as provided for by section 75(1)(a) of the Constitution of Zimbabwe? Whilst it is progressive that the Education Act of Zimbabwe as amended in 2020 has addressed some aspects relating to section 75(1)(a) of the Constitution, it has still not provided an international law compliant scope and content of the right to basic education neither have any clarifications been provided by the courts. Using an international law approach, this article suggests what the scope and content of section 75(1)(a) might be.

Self-Defence and Israel in International Law: A Reappraisal

1976 ◽  
Vol 11 (4) ◽  
pp. 516-562 ◽  
Author(s):  
Barry Feinstein
Keyword(s):  
International Law ◽  
The State ◽  
Self Help ◽  
The Law ◽  
The Right ◽  
Self Defence

Dean Acheson frankly reconfirmed the right of self-preservation, when he asserted, “…law simply does not deal with … questions of ultimate power—power that comes close to the sources of sovereignty…. No law can destroy the state creating the law. The survival of states is not a matter of law”. It is beyond the law.Given the existence of man's elementary loyalty to autonomous states, the necessity for using force springs from the need of states to depend fundamentally on self-help in order to guarantee their survival and welfare. This search for security in a system of politics without government, forces the state to be dependent upon military self-help.

Democracy

2014 ◽  
Author(s):  
Steven Wheatley
Keyword(s):  
International Law ◽  
English Language ◽  
Family Relationship ◽  
The State ◽  
Democratic Legitimacy ◽  
International Governance ◽  
Science Literature ◽  
Democratic State ◽  
The Right ◽  
Over Time

Researchers on “democracy” in international law have to make an important methodological choice: They can examine the “democracy norm” from the perspective only of international law (state practice, treaty norms, international law texts, etc.) or they can locate their research within a wider body of social science literature, in particular considering the normative conception of democracy in political theory (electoral, deliberative, consociational, etc.) and the practice of democracy and democracy promotion identified in political science. The latter is recommended since the idea of democracy in international law did not emerge ex nihilo. To be meaningful, it seems reasonable to conclude that the international law conception of democracy must maintain its family relationship with the idea of democracy that has emerged in political thought and practice over time—after all no agreed definition of democracy exists in international law. For researchers engaged in a critique of doctrine and practice from the perspective of democratic legitimacy, more in-depth reading will be required and reading of the original materials is essential. This article introduces researchers to the key writings in the English language on democracy in international law and relevant readings that inform the debates in international law in cognate disciplines. While certain democratic elements can be found in international doctrine and practice over time, “democracy” as an identifiable principle of the international law order can be dated back to the 1990s and the ending of the Cold War. While the status and content of the “democracy norm” in international law remains contested, the influence of democratic ideals can be seen in a number of areas relating to legitimate political authority at the level of the state and, increasingly, the (democratic) legitimacy of international organizations and institutions. The principle of democracy is seen to have an influence in the functioning of international law and the practice of international relations and international governance: establishing a criterion for legitimate and lawful government, giving form to the right of peoples to political self-determination, providing a context for the enjoyment of human rights and fundamental freedoms, and establishing the basis for peaceable and nonpeaceable interstate relations. Moreover, following the globalization and fragmentation of governance functions, concern has grown increasingly with respect to the “democratic deficit” experienced by citizens at the level of the state, leading to proposals for the democratization of global governance and a literature that examines the extent to which a democratic state should accept the authority of nondemocratic international law norms.

The right to the truth in international law: fact or fiction?

2006 ◽  
Vol 88 (862) ◽  
pp. 245-273 ◽  
Author(s):  
Yasmin Naqvi
Keyword(s):  
Human Rights ◽  
International Law ◽  
Criminal Law ◽  
The State ◽  
Legal Concept ◽  
The Right ◽  
Practical Implications ◽  
Legal Right

The right to the truth has emerged as a legal concept at the national, regional and international levels, and relates to the obligation of the state to provide information to victims or to their families or even society as a whole about the circumstances surrounding serious violations of human rights. This article unpacks the notion of the right to the truth and tests the normative strength of the concept against the practice of states and international bodies. It also considers some of the practical implications of turning “truth” into a legal right, particularly from the criminal law perspective.

Intervention: Individual and Collective

1945 ◽  
Vol 39 (4) ◽  
pp. 645-663 ◽  
Author(s):  
Charles G. Fenwick
Keyword(s):  
Civil War ◽  
International Law ◽  
The State ◽  
The Other ◽  
Central Theme ◽  
Entire Volume ◽  
Foreign Government ◽  
Internal Affairs ◽  
The Right

Of all the terms in general use in international law none is more challenging than that of “ intervention.” Scarcely any two writers are to be found who define this term in the same way or who classify the same situations under it. To one writer it is the interference of one state in the affairs of another; to a second writer it is “ unwarranted” interference; to a third it is interference in the domestic or internal affairs of the state; to a fourth it is interference in external as well as internal affairs. Some writers include interference of a third state between two belligerents in time of war, by taking sides with one against the other; others include only interference between the parties to a civil war. Some include “ diplomatic intervention,” where the intervening state interferes in behalf of its citizens in cases of alleged denial of justice by the other state; others regard such interference merely as “ interposition,” since it does not involve an attempt to control the character of the foreign government but merely to influence its conduct. Many jurists regard all intervention as illegal; an American jurist constructs an entire volume on international law around the central theme of the right of intervention.

Hot Pursuit

2016 ◽  
Author(s):  
Bill Gilmore
Keyword(s):  
Law Enforcement ◽  
International Law ◽  
Use Of Force ◽  
The State ◽  
Law Of The Sea ◽  
Customary International Law ◽  
Cross Border ◽  
Legal Justification ◽  
The Right ◽  
Self Defence

This chapter examines the doctrine of ‘hot pursuit’ used by the state to exercise its coercive powers beyond national territory for law enforcement purposes. It discusses hot pursuit by sea, land, and air in the context of international law, particularly with respect to self-defence and reprisal. Whilst hot pursuit is well recognized in the customary international law of the sea, it has yet to achieve that form of normative recognition in relation to pursuit on land or by air. The chapter considers the debate over hot pursuit as a legal justification for cross-border military incursions independent of the right of self-defence and describes the concept of extended constructive presence before concluding with an analysis of hot pursuit in a use of force context.

The Existing Cause of Biafra and its Right to Self-determination

2020 ◽  
pp. 1-19
Author(s):  
Yinka Olomojobi
Keyword(s):  
International Law ◽  
Regional Differences ◽  
The State ◽  
Self Determination ◽  
State Sovereignty ◽  
The South ◽  
Sovereign State ◽  
Independent States ◽  
The Right

Abstract There has been recent agitation for self-determination in the south-east of Nigeria for the state known as Biafra (a pro-secessionist group). The principle of self-determination is a well-debated discourse since it connects with the right to secede and create a sovereign state. Like a marriage at gunpoint, a reluctant partner will always want a way out of the marriage, and will take a hike at the first opportunity. Given this political inheritance, Nigeria has fallen prey to several attempts to undermine state sovereignty originating in ethnic and regional differences. The controversy has concerned both the principle’s status in international law and its charter. This principle has played a prominent part in the emergence of former colonies as independent states. The aim of this article is to explore the ongoing agitation for a Biafran Republic and to assess whether it is in conformity with the right to self-determination.

5. Sovereignty inside the State

2015 ◽  
pp. 84-104
Author(s):  
Vaughan Lowe
Keyword(s):  
International Law ◽  
The State ◽  
National Character ◽  
Legal Concept ◽  
External Threats ◽  
Sovereign Equality ◽  
The Right

Limitations on the right to use force are a key element among the principles by which international law secures the sovereign equality and independence of States against external threats. ‘Sovereignty inside the State’ examines the principles of international law that spell out in positive terms the content of that equality and independence. Each State has the sovereign right to decide upon its social and economic structures, and to lay down laws that will influence the national character of the State and of life within it. The legal concept of jurisdiction determines the reach and priority of those laws. That freedom is not unlimited: it is constrained by obligations of the State under international law.

Treatment of Enemy Aliens

1918 ◽  
Vol 12 (1) ◽  
pp. 27-55 ◽  
Author(s):  
James W. Garner
Keyword(s):  
National Security ◽  
International Law ◽  
The State ◽  
Alexander Hamilton ◽  
Substantial Agreement ◽  
Government Grants ◽  
German Authority ◽  
The Subject ◽  
Jay Treaty ◽  
The Right

Writers on international law are now in substantial agreement that a belligerent ought not to detain enemy subjects, confiscate their property, or subject them to any disabilities, further than such as the protection of the national security and defense may require. Vattel, in 1758, appears to have been the first writer to adopt the view that had come to be generally held by publicists at the time the present war broke out. “The sovereign,” he said, “who declares war has not the right to detain the subjects of the enemy who are found within his state, nor their effects. They have come to his country in public faith; in permitting them to enter and live in the territory, he has tacitly promised them all liberty and surety for their return. A suitable time should be given them to withdraw with their goods; and if they stay beyond the time prescribed, it is lawful that they should be treated as enemies, though as disarmed enemies.” Alexander Hamilton, in defending the Jay Treaty of 1794, declared that the right of holding property in a country always implies a duty on the part of its government to protect that property and to secure to the owner full enjoyment of it. “Whenever, therefore,” he added, “a government grants permission to foreigners to acquire property within its territories, or to bring and deposit it there, it tacitly promises protection and security — the property of a foreigner placed in another country, by permission of its laws, may be justly regarded as a deposit of which the society is the trustee.” Westlake, in 1907, adverting to the numerous treaty stipulations on the subject, remarked that they might be deemed to amount to “a general agreement, on the part of governments, that modern international law forbids making prisoners the persons of enemy subjects in the territory at the outbreak of war, or, saving the right of expulsion in case of apprehended danger to the state, refusing them the right of continuous residence during good behavior.” Referring to the right of expulsion, Ullmann, a respectable German authority, remarks that expulsion can be resorted to against the subjects of the enemy state, but only after a suitable delay has been offered in order to enable those affected to wind up their affairs.

Some Reflections on Israel's Temporary Legislation on Unification of Families

2010 ◽  
Vol 43 (2) ◽  
pp. 457-467 ◽  
Author(s):  
Ruth Lapidoth ◽  
Ofra Friesel
Keyword(s):  
International Law ◽  
Gaza Strip ◽  
The State ◽  
Provisional Measure ◽  
Israeli Arabs ◽  
The Law ◽  
The Government ◽  
The Gaza Strip ◽  
The Individual ◽  
The Right

In 2003 Israel adopted the Nationality and Entry into Israel (Provisional Measure) Law, 5763-2003. The Provisional Measure deals generally with entry into Israel; at first it dealt only with entry into Israel of residents of the West Bank and the Gaza Strip, and later it was extended also to nationals and residents of Iran, Iraq, Lebanon and Syria. It is particularly relevant for cases of unification of families and immigration for the purpose of marriage.The following article offers a short summary of the law as it has been amended in 2005 and 2007, as well as its interpretation by the government (since 2008) and then examines its conformity with international law. The Provisional Measure involves a clash between the right of the individual to marry the person of his choice and establish a family on the one hand, and the right of the state to regulate freely immigration and entry into its territory on the other hand. Since international law has not established a right to family unification nor to immigration for the purpose of marriage, the right of the state prevails in this matter. Yet, the Provisional Measure deviates from international law in a different aspect, as it leads to a de facto discrimination, mostly of Israeli Arabs. This discrimination is not permitted by the Convention for the Elimination of all Forms of Racial Discrimination, to which Israel is a party. It is recommended that Israel amends the law in order to bring it into conformity with international law.

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