International Comparative Jurisprudence最新文献

{"title":"THE RIGHT TO FREEDOM OF CONSCIENCE: WESTERN AND ISLAMIC PERSPECTIVES","authors":"Juozas Valčiukas, Mohammad Al Majali","doi":"10.13165/j.icj.2021.06.001","DOIUrl":"https://doi.org/10.13165/j.icj.2021.06.001","url":null,"abstract":"With the constant reoccurrence of the question of peaceful coexistence among people of different religions, legal traditions, and understandings of freedom and human nature, there is a need for a fresh study of the concept of freedom of conscience. This article addresses conceptual, doctrinal, and normative issues relating to the concept of freedom of conscience as a human right by examining it from Islamic and Western perspectives. Chapter 1 of this paper considers the Western perspective on the right to freedom of conscience in three key areas. The religious, philosophical, and legal aspects of this concept receive particular attention in an attempt to discern the essence of what freedom of conscience means in the West. To understand how this concept is articulated in legal terms, this article analyses both its national and international legal bases, alongside the relevant case law of the European Court of Human Rights. Chapter 2 of this paper is devoted to the study of the Islamic perspective on the concept of freedom in general and on the right to freedom of conscience in particular, in order to ascertain whether or not this right exists in Islamic legal tradition. In doing so, this paper explores the most fundamental Islamic sources – namely, the Quran and the Sunna – in order to understand the role that this freedom plays in them. Two constitutional examples from Jordan and Qatar are then analyzed, before final conclusions are delivered.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42692932","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"SHOULD THE EUROPEAN COURT OF JUSTICE DEVELOP A POLITICAL QUESTION DOCTRINE","authors":"A. Mercescu, Sorina Doroga","doi":"10.13165/j.icj.2021.06.002","DOIUrl":"https://doi.org/10.13165/j.icj.2021.06.002","url":null,"abstract":"This paper comparatively investigates the role of the so-called political question doctrine in contemporary adjudication. Equally hailed and criticized, the doctrine is an indirect discussion on the perennial question of the border between law and politics. Thus, this contribution firstly seeks to illustrate the idiosyncratic context in which the political question doctrine operates and to ascertain the instability of its meaning, as well as its evolving content over time. Second, this paper examines the scholarly debates that surround the existence of a political question doctrine in the practice of the European Court of Justice (ECJ), as well as the (in)desirability of an express articulation of the doctrine by the ECJ. This study is therefore imagined as an implicit comparison: the theoretical insights drawn from several common law jurisdictions inform the approach to EU law, while, in turn, the EU example is employed as a background against which to consider and revisit some of the doctrine’s limits and possibly even perils. Without attempting to provide a taxonomy of cases in which “political question” types of arguments may arise before the ECJ, this paper identifies – mostly through doctrinal study – examples of alternative strategies or concepts so far employed by the Court in order to deal with issues generally defined as “political”. Finally, this contribution weighs some of the advantages and disadvantages that the adoption of the doctrine would bring in practice, both in light of the Court’s position within the institutional system, and of the specific features of the EU’s legal construction as a whole.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42702469","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"WHAT CAN FRANCE LEARN FROM THE CZECH REPUBLIC’S APPROACH TO THE ISSUE OF WEARING (ISLAMIC) RELIGIOUS SYMBOLS","authors":"E. Lyapina","doi":"10.13165/j.icj.2021.06.004","DOIUrl":"https://doi.org/10.13165/j.icj.2021.06.004","url":null,"abstract":"The latest “(Anti)Separation Bill” in France stirred new waves of discussion and criticism. Given the fact that France and the Czech Republic are European secular states and members of the EU – with the former acting as a trendsetter and the latter being the second most agnostic state in the EU – this paper attempts to understand the path down which Europe is heading on the question of freedom of conscience, religion, and expression. The author examines the approach of the Czech Republic to the issue of wearing Islamic religious symbols through the prism of the Czech Supreme Court and EU experience in the European court of human rights in the fields of education and employment. The problems associated with the wearing of religious symbols, especially Islamic ones, as scarves for women that cover their heads (i.e., the hijab) have been relevant for the past few decades, and remain open questions even in democracies such as the EU member states. This paper will discuss the position of one secular state – the Czech Republic – through the case law in this area, as well as providing an overview through the decisions of the European Court of Human Rights in the cases of the EU member states. The aim of this article is not to compare political trends and judicial approaches between France and the Czech Republic, but rather to provide alternative approaches to the right to manifest religion as demonstrated by latest judgement of the Czech Supreme Court – a source of inspiration in the vein of the motto “Liberty, equality, fraternity”.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44287194","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"THE LEGAL SITUATION OF A CHILD IN MEDIATION IN LIGHT OF THE REGULATIONS OF INTERNATIONAL LAW","authors":"Magdalena Tabernacka","doi":"10.13165/j.icj.2021.06.007","DOIUrl":"https://doi.org/10.13165/j.icj.2021.06.007","url":null,"abstract":"In light of international law, children should be participants in family mediation. International law creates a basis for the extensive use of mediation in resolving conflicts to which children are party. These include not only family mediations, but also civil mediations and those that take place in connection with the use of educational measures, as a reaction to prohibited acts committed by children or in the event of conflicts in educational institutions in which children participate. The participation of children in mediation may take the form of direct participation in mediation sessions, but it may also take the form of various types of direct and indirect consultations in which the child expresses their opinion on the proposed decisions. Mediation enables children to obtain appropriate information on their legal and factual situation, adjusted to their cognitive resources. Mediation in which children participate is of considerable educational importance as a result of the fact that, in conditions of personal experience, children learn non-confrontational methods of resolving conflicts in social relations. The accession by a state to an international agreement, which within the scope of its regulation also covers the procedural rights of children or specific legal solutions applicable in mediation, means that the state is obliged to apply legislative solutions that will ensure the application of the standards provided for in these agreements with regard to the legal and factual situation of a child who is a party to mediation or in relation to a child whose interests are affected by mediation between other persons.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44685869","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"ACCESS TO MODERN ENERGY SERVICES THROUGH THE PRISM OF CHILDREN’S RIGHTS: AN OVERVIEW FROM THE PERSPECTIVES OF THE CONVENTION ON THE RIGHTS OF THE CHILD AND THE POLICY AND LAW APPROACHES OF CERTAIN EU MEMBER STATES AND UKRAINE","authors":"Yu. L. Vashchenko","doi":"10.13165/j.icj.2021.06.006","DOIUrl":"https://doi.org/10.13165/j.icj.2021.06.006","url":null,"abstract":"The aims of this research are: to explore the connection between the right to access to modern energy services and children’s rights, as stipulated by the Convention on the Rights of the Child; to analyze how the rights of children are addressed in the energy policy and law of certain EU Member States and Ukraine; and to develop recommendations on how to make national energy policy and law more child-sensitive. To achieve these goals, the following objectives were set: 1) to explore the correlation between the right to access to modern energy services and children’s rights under the Convention on the Rights of the Child; 2) to analyze the Integrated National Energy and Climate Plans (NECPs) of certain EU Member States in order to find out how children’s rights are addressed in policy and law and to identify the most common practices; 3) to analyze the current and prospective legislation in Ukraine that relates to children’s rights to modern energy services; and 4) to develop recommendations on how to make national energy policy and law more child-sensitive. The main results of this research are: 1) access to modern energy services is vital for children’s enjoyment of their rights (e.g., the right to life, survival, and development, the right to health, the right to education, the right to adequate housing, the right to be protected from any form of violence, neglect, or negligence, and the right to be heard); 2) states shall specifically address issues of children’s rights (in particular, by tackling energy inequality, considering the risks for the concrete category of children, targeting certain rights of children that depend on access to modern energy services, and introducing concrete actions and outcome indicators) in the strategic documents and legal acts that relate to universal access to modern energy services; 3) the social protection of low-income families with children in the form of discounts for energy bills and state support for the implementation of energy efficiency improvement measures in residential buildings (as mechanisms for tackling energy poverty), the encouragement of the energy renovation of pre-school and school buildings, and the development of special educational tools on sustainable energy for pupils are considered the most common practices in certain EU Member States; 4) whilst Ukrainian energy policy and law includes some instruments that relate to children’s rights as energy consumers, it lacks a complete approach; and 5) the energy policy and law of Ukraine should specifically address children’s rights as energy consumers, specifically those based on the common approaches used in EU Member States, in order to consider the peculiarities of children’s energy needs.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46496772","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"CONDITIONS FOR THE BANKRUPTCY OF NATURAL PERSONS: WHICH BALTIC STATE IS THE MOST ATTRACTIVE FOR BANKRUPTCY?","authors":"Mari Schihalejev, Toomas Saarma, Edvīns Draba","doi":"10.13165/j.icj.2021.06.008","DOIUrl":"https://doi.org/10.13165/j.icj.2021.06.008","url":null,"abstract":"In recent years, lawmakers have struggled with a multitude of negative effects caused by the rapidly rising tide of debt distress among natural persons. Data from 2020 confirm the relevance of the bankruptcy of natural persons in the Baltic states. One of the factors that determine the choice of a natural person to go bankrupt is the provision of reasonable grounds to open bankruptcy proceedings. This article uses comparative analysis to answer, from the perspective of the debtor, the question of: in which Baltic state does the most favourable regime for initiating a bankruptcy case exist for a natural person?","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43766769","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"NON-JUDICIAL DIVORCES AND THE BRUSSELS II BIS REGULATION: TO APPLY OR NOT APPLY?","authors":"Katažyna Bogdzevič, Natalija Kaminskienė, Laima Vaige","doi":"10.13165/j.icj.2021.06.003","DOIUrl":"https://doi.org/10.13165/j.icj.2021.06.003","url":null,"abstract":"This paper aims to analyse the international consequences of private divorces, which are available in several European countries. Particular attention is drawn to the amendments suggested by the Lithuanian legislator, which intend to transfer certain functions of the courts to notaries. In particular, Lithuanian notaries would have competence in the dissolution of marriage provided there is mutual consent between spouses. The authors discuss how private divorces are regulated in different countries, whether the amendments suggested by the Lithuanian legislator would introduce a “private divorce” into Lithuanian law, and what the implications of private divorce are in private international law. In particular, the scope of application of the Brussels II bis Regulation is addressed. As yet, there is no consensus as to whether the Regulation applies to private divorces. However, the analysis in this paper shows that it would be beneficial to include such divorces in the above-mentioned Regulation. This would ensure a greater legal certainty for international couples.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45639801","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A STAY OF INDIVIDUAL ENFORCEMENT ACTIONS AS A BASIS FOR EFFECTIVE RESTRUCTURING PROCEEDINGS","authors":"Remigijus Jokubauskas, Marek Świerczyński, Audronė Balsiukienė","doi":"10.13165/j.icj.2021.06.009","DOIUrl":"https://doi.org/10.13165/j.icj.2021.06.009","url":null,"abstract":"This article focuses on the implementation of a stay of individual enforcement actions in corporate restructuring proceedings. The authors analyse the general goals of a stay of individual enforcement actions in restructuring proceedings by considering, for instance, the economic reasons for such a stay, when it should be applicable, and the exceptions that should be established for its application. The Directive on restructuring and insolvency, adopted on 20 June 2019, reforms the regulation of a stay of individual enforcement actions in Member States of the European Union, aims to increase the efficiency of restructuring proceedings by providing legal instruments to facilitate a debtor’s negotiation of a restructuring plan, and provides certain rules as to how a debtor’s assets should be protected during these negotiations. Namely, a stay of individual enforcement actions and the protection of essential executory contracts should protect a debtor and ensure the equality of all creditors (pari passu) during the negotiation of a restructuring plan. However, in practice these goals result in less protection – especially for ordinary creditors. The authors analyse which aspects of a stay of individual enforcement actions are harmonized under the Directive on restructuring and insolvency, and whether they are sufficient to ensure the effective negotiation of a restructuring plan. Nevertheless, a fair balance between the interests of the debtor and their creditors should be ensured in restructuring proceedings, and the authors assess whether or not such a balance is established.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"66262434","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"THE ASSOCIATION AGREEMENT AND THE IMPLEMENTATION OF DOMESTIC REFORMS TOWARDS STRENGTHENING THE RULE OF LAW, IN GEORGIA, MOLDOVA, AND UKRAINE","authors":"Malkhaz Nakashidze","doi":"10.13165/j.icj.2021.06.005","DOIUrl":"https://doi.org/10.13165/j.icj.2021.06.005","url":null,"abstract":"The European Union has an Association Agreement with Georgia, Moldova, and Ukraine. One of the important commitments of this document is to bring the rule of law, democracy, and human rights systems closer to European standards. This article discusses the reforms carried out in the above mentioned Eastern Partnership countries in the field of rule of law and the developments, achievements, and current challenges of democratic institutions. It also analyzes the role of the European Union and the legal significance of the Association Agreement in ensuring progress towards the rule of law and democratic transformation.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":"1 1","pages":""},"PeriodicalIF":0.0,"publicationDate":"2021-06-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42060337","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"RESERVATIONS TO UN HUMAN RIGHTS TREATIES: SOVEREIGN STATES SEEKING TO AVOID THEIR OBLIGATIONS?","authors":"Aistė Augustauskaitė-Keršienė","doi":"10.13165/j.icj.2020.12.002","DOIUrl":"https://doi.org/10.13165/j.icj.2020.12.002","url":null,"abstract":"This article explores specific reservations that are being declared to international treaties intended to protect human rights, and also whether the 1969 Vienna Convention on the Law of Treaties is sufficient to ensure such rights. The author considers if reservations declared by a state(s) are incompatible with the object and purpose of a treaty, and what consequences might follow if such a declaration(s) is made. To this end, the article investigates the practice of states that are party to the International Covenant on Civil and Political Rights, International Covenant on Social and Economic Rights, United Nations Convention on the Rights of Persons with Disabilities, and the United Nations Convention against torture and other Cruel, Inhuman or Degrading Treatment. These treaties were selected because they lay down significant principles for the protection of specific human rights, and also because they are frequently challenged through reservations which seek to alter fundamental provisions. On a theoretical level the regulation of reservations does not appear to be problematic, however on closer examination various reservations point to the inadequacy of current regulation in the 1969 Vienna Convention in terms of the protection of human rights. Accordingly, this article considers a major group of states that seek to become parties to treaties pertaining to human rights, but then make reservations with the intention of diluting fundamental provisions. Specifically, this applies to Islamic countries whose reservations claim incompatibility with Islamic law and by reference to their own cultural diversity. By objecting to the reservations, state parties must decide whether or not their reservation is compatible with the object and purpose of the treaty. According to provisions of the 1969 Vienna Convention on the Law of Treaties, a treaty may prohibit reservations for some or all of the treaty’s provisions, which complicates the position of state parties. Indeed, the withdrawal of reservations can be considered more problematic after analysis of practical cases of various states than it is shown in theory. The author’s analysis is intended to ascertain whether or not the 1969 Vienna Convention on the Law of the Treaties regime is suitable for the process of making reservations to the human rights treaties, and how the applicable regulation could be improved and thereby offer possible solutions to the problems outlined above.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":"6 1","pages":"118-133"},"PeriodicalIF":0.0,"publicationDate":"2020-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45633389","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}