International and Comparative Law Review最新文献

{"title":"Dualistic Data Property Right: Solution for Controllership of Data in the European Union?","authors":"Petra Žárská, Matúš Mesarčík","doi":"10.2478/iclr-2021-0013","DOIUrl":"https://doi.org/10.2478/iclr-2021-0013","url":null,"abstract":"Summary Personal data are new assets in the digital economy. While personal data are protected by GDPR in the European Union, its economic value is not protected. Unless, the economic value of personal data is addressed in legal systems of Member states, the interests of people are not fully covered. The article aims to fill the vacuum by introducing new property right to data, the dualistic data property rights. The dualistic data property right is conceptually inspired by Copyright. The article proposes the character and content of the right that is in line with existing legal system and GDPR as well. The authors embark on analyses of all aspect of the dualistic property right and its benefits for the digital economy.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"21 1","pages":"43 - 67"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43514103","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 Interrelation Between the EU Charter of Fundamental Rights and the Schengen Agreement: The Ne Bis in Idem Example Through the CJEU Case Law","authors":"K. Margaritis","doi":"10.2478/iclr-2021-0012","DOIUrl":"https://doi.org/10.2478/iclr-2021-0012","url":null,"abstract":"Summary The ne bis in idem principle is of fundamental nature to the legal order of every democratic society. The concept of this principle refers to the prohibition, on behalf of State authorities, on prosecuting the same person more than once for the same conduct. In two preliminary ruling procedures, the national courts set questions to the Court of Justice regarding the compatibility of articles 54 and 55 CISA respectively with article 50 of the EU Charter of Fundamental Rights. In the first case, the Court ruled that article 54 CISA is compatible with article 50 of the Charter whilst, in the second, the Court, essentially, found unnecessary to reply to the question. The aim of this paper is to offer a review on the impact of these two judgments in the formulation of article 50 of the EU Charter and subsequently, propose an alternative approach on the interpretation of this provision, in line with the core of the ne bis in idem principle, in order to underline the significant role of the Charter in the future of the Union.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"21 1","pages":"29 - 42"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41390187","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":"Military Necessity and Cultural Heritage Protection in Laws of War: Historical Overview","authors":"Ivan Ryška","doi":"10.2478/iclr-2021-0018","DOIUrl":"https://doi.org/10.2478/iclr-2021-0018","url":null,"abstract":"Summary The article examines the development of the concept of military necessity in relation to cultural property. Starting from 18th century and Emmerich de Vattel it continues to codifications of International Humanitarian Law in 19th century and finally focuses on 1954 Hague Convention and its 1999 Second Protocol. The article underlines the most significant trends in the development and aims to illustrate increasing respect for cultural property during the conflict. In its final section it presents more current issues related to cultural property protection and armed conflict: inclusion of human rights protection and matter of dual-use objects. Both questions are introduced in decision of the International Criminal Tribunal for the Former Yugoslavia in Prlić et al. case that investigates destruction of Stari Most in Mostar. The decision shows that some new elements have to be considered in assessment of military necessity related to cultural property.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"21 1","pages":"187 - 211"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42265271","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 Migrants’ Right to Respect for Family Life – The Problematic Developments of the European Court of Human Right’s Case Law","authors":"Jennie Edlund, V. Stehlík","doi":"10.2478/iclr-2021-0021","DOIUrl":"https://doi.org/10.2478/iclr-2021-0021","url":null,"abstract":"Summary This paper analyses the inconsistency in the case law of the European Court of human Rights when applying Article 8, the right to respect for family life, of the European Convention of Human Rights in the immigration context. Even though Article 8 has permeated the area of immigration policy, critics claim that the case law has shown a number of extremely problematic developments. The main question of the paper is how the Court can be more consistent when determining a States’ compliance with Article 8. It examines whether the use of the same compliance test for all immigration cases could offer a more structured framework. The paper also explores additional adjustments in the application of Article 8 in order to improve the current development of the inconsistent case law.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"21 1","pages":"116 - 137"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45751102","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":"Critical Views on the Right to Be Forgotten After the Entry Into Force of the GDPR: Is it Able to Effectively Ensure Our Privacy?","authors":"Hovsep Kocharyan, Lusine Vardanyan, Ondrej Hamuľák, T. Kerikmäe","doi":"10.2478/iclr-2021-0015","DOIUrl":"https://doi.org/10.2478/iclr-2021-0015","url":null,"abstract":"Summary This scientific paper is devoted to the critical analysis of the right to be forgotten after the entry into force of the GDPR, including the analysis of the existing case-law of the Court of Justice of the European Union (hereinafter – the CJEU) on the above right, as well as the legislative experience of the EU member States. The main research questions of this paper are as follows: Does the right to be forgotten effectively protects human privacy? What are the main shortcomings of the right to be forgotten in law enforcement practice? How can such shortcomings be corrected in order to improve the effectiveness and practicality of the right to be forgotten? The authors try to find reasonable solutions to the practical issues related to the realization of the right to be forgotten and offer their vision of improving the effectiveness of this right in the European legal practice.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"21 1","pages":"96 - 115"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46570219","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":"Similarities and Differences Between the Albanian and Italian Succession Law","authors":"Ervin Pupe, Enkelejda Koka, Carlo Venditti, Raffaele Picaro, Rea Ajazi, D. Veshi","doi":"10.2478/iclr-2021-0019","DOIUrl":"https://doi.org/10.2478/iclr-2021-0019","url":null,"abstract":"Summary In 1994, Albania codified the current civil code, harmonizing the national legislation with the democratic values of the Western European Countries. This paper fills the gap in the national and international scientific literature since there is no scientific contribution that examines the Albanian law of succession showing the similarities and differences between the Albanian and the Italian civil codes. This is fundamental because according to Article 33 Albanian Private International Law (Albanian Law no. 10 428 of June 2011), which governs cross-border succession law, in the case of immovable goods, the rule of lex rei sitae has been codified. Thus, in the case of immovable goods, the Albanian succession law will be applied to them. In the conclusion, this research demonstrates that the Albanian Law of Succession of 1994 is different in many ways from the rules established in the Italian Civil Code of 1942.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"21 1","pages":"212 - 229"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47215791","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":"Asia and the ICC: The Development of International Criminal Law in a World Changing Order","authors":"Harsh Mahaseth, Ayushi Bansal","doi":"10.2478/iclr-2021-0017","DOIUrl":"https://doi.org/10.2478/iclr-2021-0017","url":null,"abstract":"Summary Although Asia houses over 50 percent of world’s population, it is under-represented in the ICC. This underrepresentation is due to rationales both legal and political in nature. While the Asian nations do lack enthusiasm towards ratifying the Rome Statute, there could be tangible benefits to becoming a part of the ICC. This could help in the ongoing development of international law in Asia as well as greater recognition of human rights, international justice and accountability, thus, further emphasizing the importance of the rule of law in the continent. The benefits of ratifying the Rome Statute outweigh any disadvantages, real or perceived, and thus, domestic steps need to be undertaken to lead to eventual ratification. This paper will trace the histories of International Criminal Law and analyse the Asian participation in its discourse while further exploring the reasons for the disinclination of the Asian nations to join the ICC.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"21 1","pages":"162 - 186"},"PeriodicalIF":0.0,"publicationDate":"2021-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42722200","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":"“This Content is not Available in your Country” A General Summary on Geo-Blocking in and Outside the European Union","authors":"Ondrej Hamuľák, L. Kiss, T. Gábriš, Hovsep Kocharyan","doi":"10.2478/iclr-2021-0006","DOIUrl":"https://doi.org/10.2478/iclr-2021-0006","url":null,"abstract":"Summary The phenomenon of geo-blocking is one of the new challenges of the digital era. Geo-blocking is a modern form of discrimination that differentiates between consumers on the basis of their geographical location. The phenomenon ultimately affects the situation of the citizen concerned and may also constitute an obstacle to the single market. Digital time has put a number of issues to be resolved on the legislator’s table in recent years, one of which is the phenomenon of geo-blocking. Already in 2015, the European Commission led by Juncker (2014–2019) adopted the Digital Single Market (DSM) strategy, which marked the European Union’s (EU) path towards innovation by creating a new digital dimension of the Single Market. In order to achieve the DSM strategy and the digital objectives, a number of legislative acts have been put in place to address the elements of the DSM and exploit the benefits of technological modernisation. The geo-blocking phenomenon is presented in this study, partly in terms of practical aspects and partly with regard to the geo-blocking regulation. The Ursula von der Leyen-led Commission (2019–2024) identifies “a Europe fit for the digital age” among its six priorities. Among the priorities, the “promotion of a European way of life”, must be linked to the digital priorities, as our smart tools and our digital presence are becoming an integral part of our lives – and our common way of life – especially at this time of the COVID-19 pandemic. Innovation has also been accelerated by the current exceptional situation, the health emergency caused by COVID-19, forcing us to work remotely, remote contacts and the constant use of our smart tools. The realisation of digital well-being is therefore also an integral part of our lifestyle. In the intersection of digitalisation and development and the promotion of a common European way of life, we can find a single market in which we can experience a significant aspect of our European way of life – the free movements and cross-border transactions – even through our online presence. The internal market is the dimension for the proper functioning of which the Union institutions can adopt a legislative act. In addition, measures taken to remove barriers and remove obstacles are essential for the functioning of the internal market. Joint action against geo-blocking as an internal market barrier will also play a role in creating digital prosperity by promoting the proper functioning of the internal market by promoting e-commerce and electronic content access. The aim of the study on the one hand is to present issues related to geo-blocking in a brief and descriptive manner from the perspective of the social, economic and legal environment linked to the internal market. On the other hand, the study briefly presents the legal environment of geo-blocking in the USA, Russia, China and Japan.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"21 1","pages":"153 - 183"},"PeriodicalIF":0.0,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43406240","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":"Destroying Disability: Expanding Application of the Genocide Convention","authors":"Brickelle Bro","doi":"10.2478/iclr-2021-0005","DOIUrl":"https://doi.org/10.2478/iclr-2021-0005","url":null,"abstract":"Summary Disability is not a protected class under the Genocide Convention, even though disabled people across the world frequently face egregious human rights violations. Many of those practices should be considered genocide because they meet the criteria listed in the definition. In order to amount to genocide, an action must be committed with the intent to destroy a group, in whole or in part, by killing, causing serious harm, inflicting conditions of life calculated to bring about destruction of the group, prevent births, or forcibly transfer children out of the group. Disabled people have been subjected to all these actions. By refusing to grant this group status as a protected class, the international community has allowed acts of genocide to continue into the twenty first century. To prevent future genocides against this group, and advance disability rights on a global scale, disabled people need the protections provided in the Genocide Convention.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"21 1","pages":"124 - 152"},"PeriodicalIF":0.0,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43687523","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 Covid-19 Vaccine: Patents vs. People?","authors":"Iza Razija Mešević","doi":"10.2478/iclr-2021-0002","DOIUrl":"https://doi.org/10.2478/iclr-2021-0002","url":null,"abstract":"Summary The article is looking into the issue of global equitable access to Covid-19 vaccines from the perspective of intellectual property rights, in particular patents. The discussed topics include instruments that could potentially facilitate access to patent protected health technologies (Covid-19 vaccines). Some of them are non-voluntary in nature, like the compulsory licenses in accordance with the TRIPS Agreement and others rely on the voluntary participation of the pharmaceutical industry, such as the C-TAP and the Medicines Patent Pool. The article also explores the controversial initiative regarding an “intellectual property waiver” proposed by a number of WTO members.","PeriodicalId":36722,"journal":{"name":"International and Comparative Law Review","volume":"21 1","pages":"43 - 78"},"PeriodicalIF":0.0,"publicationDate":"2021-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45294142","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}