International Comparative Jurisprudence最新文献_第8页

RESPONSIBILITY TO PROTECT. BALANCING NATIONAL INTERESTS AND INTERNATIONAL OBLIGATIONS THROUGH MULTILATERALISM 保护的责任。通过多边主义平衡国家利益和国际义务

International Comparative Jurisprudence Pub Date : 2017-03-14 DOI: 10.13165/j.icj.2017.03.008

T. Lewandowski

引用次数: 1

LESSONS OF WORLD WAR II AND THE ANNEXATION OF CRIMEA 第二次世界大战的教训与克里米亚的吞并

International Comparative Jurisprudence Pub Date : 2017-03-14 DOI: 10.13165/J.ICJ.2017.03.003

Dainius Žalimas

{"title":"LESSONS OF WORLD WAR II AND THE ANNEXATION OF CRIMEA","authors":"Dainius Žalimas","doi":"10.13165/J.ICJ.2017.03.003","DOIUrl":"https://doi.org/10.13165/J.ICJ.2017.03.003","url":null,"abstract":"The article carries out an assessment of the “reunification of Crimea with Russia” from the point of view of contemporary international law and examines the arguments of Russian scholars who aim to justify the acts of Russia in Crimea. The article aims to identify the strategies that are employed in seeking to offer an interpretation of international legal norms that corresponds to the interests of the Russian Federation. The research shows that in the legal discourse a new definition is attached to a “people” as an entity entitled to secession and right to “remedial secession” becomes, in principle, absolute, i.e. the exercise of the right to “remedial secession” is justified not only on the grounds of an actual physical threat, but also on the grounds of vague ideological threats, or temporary political instability. Moreover, the scientific discourse on justifying the „reunification of Crimea with Russia“ relies heavily on historical arguments that suggest restoring “historical justice” and reuniting historically united nations, and aims at diminishing the sovereignty of Ukraine and redefining it in such a way that enhances the scope of Russian sovereignty, while minimizing the sovereignty of post-Soviet states. The research suggests that consequently the current Russian legal discourse has become a political instrument used for constructing concepts and meanings necessary for the realization of Russia’s geopolitical interests as Russian scholars tend to manipulate international legal concepts and combine legal and pseudo-legal reasoning and subsequently an alternative pseudo-legal reality is constructed.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":"3 1","pages":"25-36"},"PeriodicalIF":0.0,"publicationDate":"2017-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47965116","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}

引用次数: 0

STATUTORY LIMITATION OF CRIMES UNDER INTERNATIONAL LAW: LESSONS TAKEN FROM THE PROSECUTION OF NAZI CRIMINALS IN GERMANY AFTER 1945 AND THE NEW "DEMJANJUK CASE LAW" 国际法下罪行的法定时效:从1945年后德国对纳粹罪犯的起诉和新的“德米扬鲁克判例法”中吸取的教训

International Comparative Jurisprudence Pub Date : 2017-03-14 DOI: 10.13165/J.ICJ.2017.03.004

David Kohout

{"title":"STATUTORY LIMITATION OF CRIMES UNDER INTERNATIONAL LAW: LESSONS TAKEN FROM THE PROSECUTION OF NAZI CRIMINALS IN GERMANY AFTER 1945 AND THE NEW \"DEMJANJUK CASE LAW\"","authors":"David Kohout","doi":"10.13165/J.ICJ.2017.03.004","DOIUrl":"https://doi.org/10.13165/J.ICJ.2017.03.004","url":null,"abstract":"Taken from the historical perspective, the article primarily examines the issue of (non-) applicability of statutes of limitation to crimes under international law, both from the perspective of the international and national law. Speaking in more detail, this paper looks at the lengthy and variable process of dealing with Nazi criminals after the WWII. It focuses especially on the prosecution of Nazi criminals in (West) Germany, which strictly adhered to application of laws of domestic provenance. Thus, among other principal challenges, the prosecuting officers (as well as the courts and the legislators) had to deal with the issue of the statute of limitation in cases of crimes, which were (as time passed by) often perpetrated several decades earlier. This approach stood in contrast to the position of the international criminal law, which generally provides for the non-applicability of the statutory limitation to crimes under international law. This topic is still actual as we may recently observe in Germany perhaps the last attempts of the prosecuting authorities to bring the deemed perpetrators of the Nazi crimes before the courts. Not only in the well covered John Demjanjuk case we could witness an attempt of the German courts to overcome the statutory limitations through a new interpretative approach to the institute of accessory to murder under the German Criminal Code. However, this shift in the German case law has not been confirmed by higher courts yet and is sometimes also subjected to criticism by legal scholars.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":"3 1","pages":"37-54"},"PeriodicalIF":0.0,"publicationDate":"2017-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48227872","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}

引用次数: 0

Object or Subject? The Ongoing 'Objectification' of Asylum Seekers 对象还是主题？对寻求庇护者的持续“客观化”

International Comparative Jurisprudence Pub Date : 2017-03-14 DOI: 10.13165/j.icj.2017.03.001

P. Kathrani

引用次数: 1

THE EUROPEAN COURT OF HUMAN RIGHTS’ CONTROL OVER STATES’ DEROGATION IN TIME OF EMERGENCY: EXAMPLE OF EFFECTIVENESS OF THE LESSONS LEARNED FROM WW2 欧洲人权法院在紧急情况下对国家减损的控制&二战经验教训的有效性实例

International Comparative Jurisprudence Pub Date : 2017-03-14 DOI: 10.13165/j.icj.2017.03.002

Marine Toullier

{"title":"THE EUROPEAN COURT OF HUMAN RIGHTS’ CONTROL OVER STATES’ DEROGATION IN TIME OF EMERGENCY: EXAMPLE OF EFFECTIVENESS OF THE LESSONS LEARNED FROM WW2","authors":"Marine Toullier","doi":"10.13165/j.icj.2017.03.002","DOIUrl":"https://doi.org/10.13165/j.icj.2017.03.002","url":null,"abstract":"This Article has two aims: the first is to check if the European Court of Human Rights has learned lessons from WW2, being a safeguard for the arbitrary abuses, the escalating of violence, protectionism, nationalism, etc, and the second aim is to analyse if European Court is playing a moderating role towards the Member States in controlling state’s derogation in time of emergency. Because of terrorism, we are at a crossroads, like the tightrope walker who roams on a thread at a vertiginous height and can fall any time. We reached a crucial point, where our societies have the choice between two roads: growing of the extremes, withdrawal behaviours, nationalism, escalation of intolerance, even civil wars between cultural or ethnical or religious groups inside the population, or, a multidimensional integration to guarantee both for state and human beings security, survival of our free-based societies and our values. To help European States to choose the second path, the European Court of Human Rights should be a helpful instrument, because it supposed to put forward measures to control what are genuine abuses and prevent the states from authoritarian drifts. This Article will study from the case law about states’ derogation in time of emergency, if the conditions are gathered for the European Court of Human Rights to constraint member states to be reasonable. The structure of the study of the European Court of Human Rights case law will follow the level of control of the European judge: 1. The Court exerts a limited control over the conditions of implementation of Article 15, 2. But the Court imposes a stricter control over the respect of the Convention for the Protection of Human Rights and Fundamental Freedoms by the measures taken in the framework of the derogation of Article 15.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":"3 1","pages":"8-24"},"PeriodicalIF":0.0,"publicationDate":"2017-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45364347","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}

引用次数: 1

Capital flows in international investment law – trends, framework and reasons: focus on emerging China 国际投资法中的资本流动——趋势、框架和原因——聚焦新兴中国

International Comparative Jurisprudence Pub Date : 2017-03-14 DOI: 10.13165/J.ICJ.2017.03.007

Andrius Bambalas

引用次数: 0

CASE LAW OF THE COURT OF JUSTICE OF EUROPEAN UNION ON UNFAIR CONTRACT TERMS DIRECTIVE: IMPLICATIONS ON ESTONIAN DOMESTIC LAW 欧洲联盟法院关于不公平合同条款指令的判例法:对爱沙尼亚国内法的影响

International Comparative Jurisprudence Pub Date : 2017-03-14 DOI: 10.13165/J.ICJ.2017.03.010

P. Kalamees, K. Sein

{"title":"CASE LAW OF THE COURT OF JUSTICE OF EUROPEAN UNION ON UNFAIR CONTRACT TERMS DIRECTIVE: IMPLICATIONS ON ESTONIAN DOMESTIC LAW","authors":"P. Kalamees, K. Sein","doi":"10.13165/J.ICJ.2017.03.010","DOIUrl":"https://doi.org/10.13165/J.ICJ.2017.03.010","url":null,"abstract":"The present article analyses the relevant judgments of the CJEU and looks into whether Estonian legislation and the case law of the Estonian Supreme Court (Riigikohus) concerning standard terms are consistent with the interpretations given by the CJEU. The article does not investigate all aspects associated with the rules on standard terms but rather concentrates only on the procedural obligations of a national court in deciding upon the unfair nature of standard terms and the consequences of establishing the unfairness of standard terms. The article also enquires whether the Estonian legislation on the order for payment procedure is in line with the UCTD. The authors submit that Estonian law - both the rules on standard terms as well as the procedural rules - is generally consistent with the requirements set out by the CJEU. In most cases, the Estonian Supreme Court (Riigikohus) also follows the procedural standards created by the CJEU case law on UCTD. Nevertheless, the Estonian rules on order for payment procedure not in all aspects meet the CJEU standards set in the recent Finanmadrid case, as the Estonian procedural law does not allow the unfairness control of standard terms in the initial proceeding nor at the later enforcement stage. Therefore, the Estonian Code of Civil Procedure needs to be changed to bring it in line with the UCTD.","PeriodicalId":32140,"journal":{"name":"International Comparative Jurisprudence","volume":"3 1","pages":"115-131"},"PeriodicalIF":0.0,"publicationDate":"2017-03-14","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48049051","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}

引用次数: 3

Violated or protected. Women's rights in armed conflicts after the Second World War 被侵犯的或被保护的第二次世界大战后武装冲突中的妇女权利

International Comparative Jurisprudence Pub Date : 2016-12-01 DOI: 10.1016/j.icj.2016.12.002

Natalia Buchowska

引用次数: 7

Civil actions for damages caused by war crimes vs. State immunity from jurisdiction and the political act doctrine: ECtHR, ICJ and Italian Courts☆ 战争罪损害赔偿民事诉讼与国家管辖豁免和政治行为理论:欧洲人权法院、国际法院和意大利法院

International Comparative Jurisprudence Pub Date : 2016-12-01 DOI: 10.1016/j.icj.2017.02.002

Francesco De Santis di Nicola

引用次数: 2

EU in the face of migrant crisis: Reasons for ineffective human rights protection 面对移民危机的欧盟:人权保护不力的原因

International Comparative Jurisprudence Pub Date : 2016-12-01 DOI: 10.1016/j.icj.2017.01.003

Simas Grigonis

引用次数: 13