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Author(s):  
Iryna Osmirko ◽  
Ivanna Maryniv

Problem setting. Due to the fact that the constitutional norms determine the status of an international treaty, the binding nature of which has been approved by the parliament as part of national legislation, it is important to study the temporal effect of international treaties, namely their retroactivity. In general, the Vienna Convention contains a provision according to which an international treaty has no retroactive effect in respect of the States which are parties to it, except where the intention to give retroactive effect to the treaty follows from the treaty itself or the agreements of its parties. These exceptions to the general rule indicate the non-absoluteness of the latter, so it is appropriate to study the factors that determine the existence of retroactive agreements, as well as controversial and controversial issues that arise in this regard. Analysis of recent researches and publications. Scholars such as S.N. Ivanov, RA Kalamkaryan, M.A. Kapustina, II Lukashuk, OV Pushnyak and others. However, this area needs further study and analysis, given the existence of exceptions to the general provision on the lack of retroactive effect of international agreements. Target of research. Тo consider the conditions under which an international treaty has retroactive effect, to investigate the factors influencing the decision to grant retroactive effect and the issues arising in connection with the retroactivity of international treaties. Article’s main body. This study examines the non-absoluteness of the provision on the absence of retroactive effect of international agreements. Among the reasons that encourage states to anticipate retroactive effect – the interpretive or additional nature of the international agreement or the need to resolve the situation that arose before its conclusion. It should be emphasized that some agreements have retroactive effect by virtue of their object, which provides this retroactive effect, as agreed by the parties, although not explicitly stated in the contract. It is also not uncommon for certain rights and obligations to arise not because of an international treaty that has not yet entered into force, but because of customary norms that are enshrined in it. Conclusions and prospects for the development. The principle of no retroactive effect of an international agreement is not absolute. In each case, the reasons for the application of retroactivity must be decided by a judicial authority in the process of interpreting the contractual obligations. An important role in the possibility of retroactive application of an international treaty is played by its object or the co-existing customary norms of international law and the principles recognized by civilized nations as binding.


wisdom ◽  
2021 ◽  
Vol 20 (4) ◽  
pp. 95-103
Author(s):  
Volodymyr ORTYNSKYI ◽  
Valentina SHAMRAYEVA ◽  
Ihor ZEMAN ◽  
Ivanna LISNA ◽  
Oksana VALETSKA

Soft law is a set of rules and guidelines, the legal force of which is at the “negotiation” stage. It has ap- peared in international law since the 1970s as one alternative to international treaties, used in cases where, for various reasons, the parties do not want or cannot commonly decide or to sign an international treaty. Agreements of this kind do not create legal obligations between the contracting parties (under the princi- ple, contracts must be respected) but only set political obligations, observing which is at the discretion of the parties. The primary purpose of the study is to analyze the philosophy of “soft law” in the context of international management of relations. The principal object of the research is the essence and significance of the philosophy of “soft law” as such. The major results of our research are to determine the essence and significance of the philosophy of “soft law” in the context of international relations.


2021 ◽  
Vol 2 (3) ◽  
pp. 292-307

Összefoglaló. A világjárvány a Föld minden országát fenyegeti. Az ellene folytatott küzdelem eredményeit és kudarcait akkor lehet felmérni, ha a veszély elmúlt. Addig csak a vírus támadásának a más társadalmi kockázatoktól eltérő egyedi tulajdonságai tárhatóak fel. Tanulmányozásra várnak az egyes országokban bevezetett rendkívüli intézkedések és az Egészségügyi Világszervezet (WHO) globális védekezésre tett kezdeményezései. Summary. The time has not yet come for a comprehensive assessment of the COVID-19 pandemic situation. At this stage, it is possible to collect information, formulate incomplete hypotheses, and define possible research directions and methodology. With this in mind, our paper will focus primarily on domestic practices. We will study the legislation, the constitutional basis of the special legal order, the functioning of public administration organisation, the reactions of criminal substantive and procedural law and, finally, the changed tasks and functions of law enforcement administration in the emergency situation. On the basis of the information available to us, we are seeking answers to three questions. Firstly, can the pandemic be considered a global threat to societies, one with specific characteristics that are different from all other threats? Secondly, what role do the state, government in general, and public administration authorities and law enforcement in particular, have to play in combating the pandemic? Thirdly, can international cooperation achieve such a level of global capacity for action that is needed to tackle the global threat? In response to the first question, the study describes the specificities that justify the uniqueness of the pandemic in nine points: the classification as the highest risk, the three hazards theory, the incomparable nature of the consequences of pandemics and natural disasters, the exclusion of any prior consideration of risk-taking, the application of the tolerable and intolerable distinction, the inconsistency of the typology of internal and external risks, a characteristic that cannot be predicted by legislation, the mathematical measurability of consequences, and the impact on the world economy. Our second aim was to present the domestic practice of combating the epidemic through the special legal order, drawing on the evaluations of legal scholars on the subject published since 2020. We have reviewed the constitutionality of the special legal order, its impact on central state and municipal administration, on substantive and procedural criminal law, and on law enforcement administration. Attention was paid to a specific institution dictated by the exceptional situation: the hospital command system. The police officers temporarily appointed to this post are responsible for supporting the organisational work in health institutions, which cannot include medical activities requiring medical training. The third theme focused on the World Health Organisation’s response to the epidemic from a global perspective. We recalled that the idea of an international treaty was first raised by the President of the European Council, Charles Michel, at the Paris Peace Forum in November 2020 and subsequently endorsed by the G7 leaders on 19 February 2021. EU leaders then expressed their commitment to start work on the preparation of an international treaty on pandemics in the framework of the World Health Organisation. We are convinced that this threefold approach will be worth pursuing when the opportunity arises to assess good and bad practices in epidemic management. However, this will be a task for the post-COVID era.


Author(s):  
Ondrej Blažo ◽  
Adam Máčaj

Las violaciones de los derechos humanos perpetradas por empresas son una realidad que ha sido un tema de derecho internacional y órganos de los derechos humanos por un período considerable. A lo largo de los años, se contemplaron diversas propuestas e instrumentos de carácter diverso para la regulación de la conducta empresarial. Todos son objeto de un intenso escrutinio y se han convertido en elementos polémicos entre los Estados involucrados en las negociaciones. El único documento adoptado por consenso en las Naciones Unidas, los Principios Rectores sobre Empresas y Derechos Humanos, contiene reglas no vinculantes. Sin embargo, los intentos de producir un tratado internacional vinculante nunca cesaron y actualmente se debaten con una participación considerable de la Unión Europea (UE). El objetivo de este artículo es analizar el progreso en el marco de desarrollo de las relaciones de las actividades comerciales con los derechos humanos, considerar la participación de la UE y determinar si la UE puede seguir avanzando en el estándar de protección, especialmente si tiene competencia suficiente para concluir el posible acuerdo de empresas y derechos humanos y qué enfoques son viables para que la UE implemente dicho acuerdo en su ordenamiento jurídico.


2021 ◽  
Vol 12 (1) ◽  
pp. 87-107
Author(s):  
Trevor Daya-Winterbottom

The Antarctic Treaty 1959 has now been in place for 60 years and is regarded by informed commentators as one of the most successful multi-party international treaty systems. This paper provides an opportunity to look back and take stock of previous success, and more importantly, an opportunity to assess the future prospects of the treaty system. New Zealand has played a key role in the Antarctic Treaty system and has had a long involvement with Antarctica since accepting the transfer of sovereignty over the Ross Dependency in 1923. This paper therefore focuses on the effectiveness of the Antarctic Treaty system through a New Zealand lens.


2021 ◽  
Author(s):  
Carlo Tosco

The European Landscape Convention is an international treaty of great importance in the European institutional framework, but it contains a number of unclear and controversial points. This article investigates the relationship between the Convention and history, disclosing several critical aspects. In particular, it is worth mentioning that from the text of the Convention the term history/histoire is missing. The essay explores the reasons for this absence, in relation to a more general crisis of historical culture that affects the European nations. This crisis had already been foreseen by a number of authors, such as Jean-François Lyotard, Eric Hobsbawm, Claude Lévi-Strauss and François Hartog. In Italy, the most recent book by Adriano Prosperi (Un tempo senza storia, 2021) investigates the crisis of historical culture in contemporary societies, severely affecting schools and students’ educational programmes. The European Convention apparently shares this approach that constitutes a real threat to a proper knowledge of landscapes as repositories of collective memory and cultural heritage.


2021 ◽  
Author(s):  
◽  
Dara Lenetha Ayanna Modeste

<p><b>Domestic courts are often confronted with circumstances in which their interpretation of municipal legislation which purports to implement an international treaty differs significantly from that of other jurisdictions that have implemented that same treaty. States parties often come to realise these differences when they are called upon to cooperate in facilitating the execution of the relevant treaty. This is clearly undesirable as it defeats the purpose of treaty negotiation which is to attain consistency in approach amongst states parties.</b></p> <p>This dissertation proposes a solution to that problem. It is based on the hypothesis that uniformity in the drafting techniques used to implement different types of international treaties will eliminate, or at least reduce, the incidence of domestic legislation's deviating from the true intentions of the treaty it proposes to implement. The dissertation tests this hypothesis by examining the approach taken by different jurisdictions in implementing selected treaties. The study reveals that there is merit to the hypothesis. However, there are several factors which determine which drafting technique will best implement the terms of a treaty in a particular jurisdiction. Therefore, the same implementation technique may not be suitable for all contracting states. What is required is a structured approach to treaty implementation. This comes with an appreciation of the factors that will indicate and should be used to determine which drafting technique is the most suitable.</p> <p>By way of solution to the problem posed, a guide is formulated. It provides a set of best practices for treaty implementation.</p>


2021 ◽  
Author(s):  
◽  
Dara Lenetha Ayanna Modeste

<p><b>Domestic courts are often confronted with circumstances in which their interpretation of municipal legislation which purports to implement an international treaty differs significantly from that of other jurisdictions that have implemented that same treaty. States parties often come to realise these differences when they are called upon to cooperate in facilitating the execution of the relevant treaty. This is clearly undesirable as it defeats the purpose of treaty negotiation which is to attain consistency in approach amongst states parties.</b></p> <p>This dissertation proposes a solution to that problem. It is based on the hypothesis that uniformity in the drafting techniques used to implement different types of international treaties will eliminate, or at least reduce, the incidence of domestic legislation's deviating from the true intentions of the treaty it proposes to implement. The dissertation tests this hypothesis by examining the approach taken by different jurisdictions in implementing selected treaties. The study reveals that there is merit to the hypothesis. However, there are several factors which determine which drafting technique will best implement the terms of a treaty in a particular jurisdiction. Therefore, the same implementation technique may not be suitable for all contracting states. What is required is a structured approach to treaty implementation. This comes with an appreciation of the factors that will indicate and should be used to determine which drafting technique is the most suitable.</p> <p>By way of solution to the problem posed, a guide is formulated. It provides a set of best practices for treaty implementation.</p>


2021 ◽  
Author(s):  
Dominique Vervoort ◽  
Xiya Ma ◽  
Alia Sunderji ◽  
Hloni Bookholane

Tweetable abstract In November, dozens of nations and the WHO will draft the international treaty for pandemic preparedness and response. Will the treaty be the needed change in global health equity or are we doomed to repeat history?


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