International and Comparative Law Review最新文献

{"title":"Procedural Regulation of Involuntary Hospitalization According to the Legal Order of the Czech Republic in Comparison with German Legislation","authors":"P. Podrazil, Vojtěch Jirásko","doi":"10.2478/iclr-2019-0024","DOIUrl":"https://doi.org/10.2478/iclr-2019-0024","url":null,"abstract":"Summary The article focuses on the analysis of the procedural arrangements of detention proceedings in the legal order of the Czech Republic and the Federal Republic of Germany. Special attention is paid to the systematic (conceptual) setting of the functioning of procedural adjustments, whose current form is a reflection of the shift or departure from the historical law ratio legis of civil health detention. The historical ratio legis then consists in the protection of the personal freedom of the mentally ill, who were taken into the institution for the insane against their will. Thus, the links between guardianship and detention should not be neglected in the design of procedural procedures. Both procedures should be closely linked. The aim of the article is to analyze the concept of procedural modifications of detention proceedings under German and Czech legislation, also in connection with partial differences within individual procedural law institutes. Special attention is paid to the mutual relation between detention proceedings and custody proceedings.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"19 1","pages":"266 - 284"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44007896","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":"Preservation and Rendition of Computer Data in Slovak Criminal Procedure Code","authors":"Ivana Rabinská","doi":"10.2478/iclr-2019-0025","DOIUrl":"https://doi.org/10.2478/iclr-2019-0025","url":null,"abstract":"Summary The goal of this article is to analyse the Slovak legislation of preservation and rendition of computer data in accordance with section 90 of the Criminal Procedure Code, which was implemented in the Slovak legal order under the Convention on Cybercrime, Budapest, 23. 11. 2001. In particular, article 16 of the Convention on Cybercrime obliges the member states to adopt necessary legislative and other measures as may be necessary to enable its competent authorities to order or similarly obtain the expeditious preservation of specified computer data, including traffic data, that has been stored by means of a computer system, in particular where there are grounds to believe that the computer data is particularly vulnerable to loss or modify. In addition, the article examines the effects of the legislation adopted in practice, including the correlation problems that the legislator has not deal with and also brings up-to-date results of the fight against cybercrime.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"19 1","pages":"285 - 299"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41739269","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":"European “Judicial Monologue” of the Czech Constitutional Court – a Critical Review of its approach to the Preliminary Ruling Procedure","authors":"David Sehnálek, V. Stehlík","doi":"10.2478/iclr-2019-0020","DOIUrl":"https://doi.org/10.2478/iclr-2019-0020","url":null,"abstract":"Summary The paper analyses the use of the preliminary ruling procedure by the Czech Constitutional Court and the attitude of this court towards the EU law. The approach of the Constitutional Court to the judicial dialog is also compared with some other European constitutional courts mainly with those who have a similar role in national judiciary or with those who were able to effectively take an advantage of the preliminary ruling procedure. The paper demonstrates that the Czech Constitutional Court took the position that seems to be unsustainable from a long time perspective as the reality of the current development favours the spirit of cooperation among European highest courts.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"19 1","pages":"181 - 199"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45506456","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":"European Environmental policy and public procurement – connected or disconnected?","authors":"Ondrej Blažo, Hana Kováčiková, Lucia Mokrá","doi":"10.2478/iclr-2019-0023","DOIUrl":"https://doi.org/10.2478/iclr-2019-0023","url":null,"abstract":"Summary The EU environmental policy is challenged by current international development (withdrawal of the US from the Paris climate accord, melting of the Arctic, changes in climate, extreme weather events), the sustainable development policy agenda and also by public pressure. The interest of the public in the environmental policy is not only reflected in the Eurobarometer polls, the increase of green parties in 2019 EP elections, but it is also present in the very first European Citizens’ Initiative, the environmentally oriented Right2Water initiative, which had been presented to the Commission in 2013. Following the need to reflect upon the current problems and challenges, the scope of European Environmental Policy (EEP) has broadened from traditional direct environmental challenges, such as access to clean water, clean air, maintaining biodiversity also to other areas connected to current challenges as the climate change and sustainable development and into practical implementation in particular internal and external policies – including trade policy, competition policy or public procurement. Following analysis is focused on the position of the green agenda and EEP transfer to legislation in public procurement on European level.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"19 1","pages":"239 - 265"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43386307","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":"JANKUV, Juraj. Legal Mechanisms of Protection of the Human Environmental Rights in Public International Law, Law of the European Union and Legal Order of the Slovak Republic, Leges, Praha, 2018, 200 pp.","authors":"Naděžda Šišková","doi":"10.2478/iclr-2019-0027","DOIUrl":"https://doi.org/10.2478/iclr-2019-0027","url":null,"abstract":"The scientific aim of this monograph is to identify the enshrining and mechanisms of protection of six human environmental rights – human right to environment, human procedural environmental rights, human right to water and human right to sanitation in public international law, European Union law and Slovak municipal law in order to summarize the current state of protection of human environmental rights under the above-mentioned legal systems and branches and to consider possible changes de lege ferenda that may improve provisions of these legal systems and branches in the mentioned area. This aim author formulates in the first part of the monograph named “Introduction”.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"19 1","pages":"313 - 317"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48343204","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":"Humanitarian Intervention: Fairy Tale about One Swallow Which Made Summer?","authors":"Ondřej Svaček","doi":"10.2478/iclr-2019-0018","DOIUrl":"https://doi.org/10.2478/iclr-2019-0018","url":null,"abstract":"Summary In its final report on aggression and the use of force, the International Law Association opined that the only way in which unilateral humanitarian intervention could possibly be seen as a legal exception to the prohibition of the use of force is if State practice and opinio juris were to be found establishing its status as an additional exception in customary international law. After the airstrikes conducted by the US, the UK, and France against Syria in April 2018, which took place in reaction to unprecedented usage of chemical weapons against civilian population by regime of Bashar Asad, some States and part of scholars argued that this permissive rule (exception) has already crystalized and humanitarian intervention became part of international law. The aim of this article is to assess whether these opinions are relevant or whether they are simply premature. The text is divided into three parts. Firstly, legality of humanitarian intervention is considered in the framework of the UN Charter and customary international law on the use of force based on evaluation of scholarly debates and the most prominent examples of State practice before 2018. Then, the article describes methodology that is employed in relation to the creation (modification) of customary international law in general and peremptory norm concerning the prohibition on the use of force in particular. This part analyzes how possible normative changes of jus ad bellum should be assessed. The third part evaluates justifications and reactions of States with respect to the use of force against Syria in April 2018 that were presented by the international community of States. The article concludes that the concept of humanitarian intervention remains still illegal even after the airstrikes against Syria from 2018, what conforms to the prevailing opinion presented in contemporary scholarly literature. Even though the positive echoes identified in State practice (and doctrine) are yet premature, they indicate that process of gradual normative change has already been triggered. At the same time, the expectations concerning crystallization of a new possible exception to the general prohibition on the use of force should not be too exaggerated.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"19 1","pages":"131 - 154"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45370708","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":"Cybersecurity in the Making – Policy and Law: a Case Study of Georgia","authors":"Vladimeri Napetvaridze, Archil Chochia","doi":"10.2478/iclr-2019-0019","DOIUrl":"https://doi.org/10.2478/iclr-2019-0019","url":null,"abstract":"Summary The given article is an evaluation of the implementation and development of Georgia’s cybersecurity policy, and its influence on Georgia’s global cybersecurity index. The study covers the period from 2008 to 2018. In 2008 Georgia became one of the first victims of hybrid warfare. During the August 2008 Russo-Georgian war, Georgian government websites were attacked by hackers affiliated with Russia. In the given period, cybersecurity was not the priority direction for Georgia, therefore government portals were easy targets for cybercriminals and the government couldn’t prevent the cyberattacks. After 2008, the government decided to develop a state cybersecurity policy. In 2012 the country ratified the Council of Europe’s cybersecurity convention. At the same time, the “Law of Georgia on Information Security” which had become a basic document of the cybersecurity state policy implementation, had been adopted. The document was followed by a cybersecurity strategy. During the following years, based on cybersecurity strategy document, Georgia implemented 2 action plans and defined the relevant state agencies responsible for “cyber safety” of the country. As a result of the reforms, in 2017, according to the International Telecommunication Union (ITU) Cybersecurity Global Index, Georgia has been ranked among the top ten countries. The given article is a chronological description of a Georgian cyberpolicy and cybercapabilities evolution. It includes cases of organized cybercrime carried out against the state and examples of the development of Georgian cybersecurity policy which was reflected on the global international cybersecurity index of the country.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"19 1","pages":"155 - 180"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41678881","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":"Nature of Mediation Clauses from the Point of View of Private International Law","authors":"Miluše Hrnčiříková","doi":"10.2478/iclr-2019-0022","DOIUrl":"https://doi.org/10.2478/iclr-2019-0022","url":null,"abstract":"Summary Mediation as a popular method of ADR is more and more often used while solving cross border disputes. Although the mediation clauses are included into the commercial contracts almost automatically, no attention is paid to its validity, enforceability and other legal consequences. The article provides a study on the nature of mediation clauses that crucially influences the law governing validity of mediation clauses. It is the position of the author that mediation clauses are primary institutes of the substantive law and thus the governing law should be determined in accordance with the Rome I regulation.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"19 1","pages":"224 - 238"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44012600","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":"Searching for Armed Non-state Actors’ Role in the Process of Formation of Customary Law","authors":"Agata Kleczkowska","doi":"10.2478/iclr-2019-0016","DOIUrl":"https://doi.org/10.2478/iclr-2019-0016","url":null,"abstract":"Summary The paper explores the problem of the formation of the ‘(quasi-) customary law’, as a source of law created by, or contributed to by armed non-state actors (ANSAs). It argues that, despite some views presented in the doctrine of international law, claims of a quasi-customary international law are without foundation in the current state of international law. The paper is divided into three parts. The first part presents the views of legal doctrine concerning the customary law as contributed/created by non-state actors. The second section argues that ANSAs do not form practice and opinio juris which would allow them to create their ‘own’ customary law. The final part presents the possible challenges and consequences of including ANSAs in the process of formation of customary international law as created by States. In summary the conclusions posit that it could be potentially very harmful for international humanitarian law and the protection of human rights.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"19 1","pages":"115 - 97"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45712849","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":"Superior Responsibility in the Bemba Case – Analysis of the Court’s Findings on Necessary and Reasonable Measures","authors":"Michala Chadimová","doi":"10.2478/iclr-2019-0026","DOIUrl":"https://doi.org/10.2478/iclr-2019-0026","url":null,"abstract":"Summary This article critically analyses an interpretation and application of necessary and reasonable measures to prevent or repress crimes committed by the subordinates in the Bemba case. The aim of the Article is to analyse the Pre-Trial Chamber, Trial Chamber and Appeal Chamber findings on necessary and reasonable measures in connection to responsibility of person effectively acting as a military commander. In doing critically analyses of the interpretation and application, this article evaluates legal challenges faced by the ICC in using superior responsibility, with special focus on the relevance of motives behind the measures taken by a superior or commander and the issue of remote commander. This study provides first comprehensive analysis of necessary and reasonable measures requirement in the Bemba case and as such, offers the latest development on the superior responsibility doctrine applicable at the ICC.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"19 1","pages":"300 - 312"},"PeriodicalIF":0.0,"publicationDate":"2019-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44452867","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}