Laws doi: 10.3390/laws13020016
Authors: Mark Fowler Alex Deagon
The Australian Human Rights Commission has claimed that recognising religious corporations as litigants in religious discrimination claims departs from international human rights law, which only protects the rights of natural legal persons. In this article we respond to that claim by arguing that under international law, Australia should protect the ability of religious groups to be litigants, including corporations. The International Covenant on Civil and Political Rights requires Australia to respect and ensure individuals have the right to manifest their beliefs in community with others, and that such communities are protected against discrimination on religious grounds. This requirement entails granting religious groups the ability to pursue legal measures to preserve the enjoyment of these rights by their members.
]]>Laws doi: 10.3390/laws13020015
Authors: Andreta Slavinska Karina Palkova Evita Grigoroviča Edgars Edelmers Aigars Pētersons
The quality of healthcare varies significantly from one country to another. This variation can be attributed to several factors, including the level of healthcare professionals’ professionalism, which is closely linked to the quality of their education. Medical and healthcare education is unique in its need for students to learn and practice various clinical skills, algorithms, and behaviours for clinical situations. However, it is challenging to ensure these educational experiences do not compromise the quality of healthcare and patient safety. A simulation-based educational (SBE) approach offers a solution to these challenges. However, despite the widespread adoption of the SBE approach in medical and healthcare education curricula; its recognition for its high value among students, educators, and healthcare professionals; and evidence showing its positive impact on reducing risks to both patients and healthcare professionals, there is still an absence of a standardized approach and guidelines for integrating simulations, which includes determining when, how, and to what ex-tent they should be implemented. Currently, there is no regulation on the need for SBE integration in medical and healthcare curricula. However, the framework of this article, based on the results of the analysis of the legal framework, which includes a set of laws, regulations, principles, and standards set by various government, administrations, and authoritative institutions, will determine the fundamental aspects of the integration of the SBE approach that justify and argue the need to (1) incorporate simulation-based education across all levels of medical and healthcare education programs and (2) adhere to certain standards when integrating the SBE approach into medical and healthcare programs. This is an area that needs to be developed with the involvement of legal, health, and education experts.
]]>Laws doi: 10.3390/laws13020014
Authors: Tina Minkowitz
In this paper, I argue that the Committee on the Rights of Persons with Disabilities Guidelines on Deinstitutionalization, Including in Emergencies function as an instrument and template for reparative justice towards persons still in institutions and survivors of institutionalization. The Guidelines construct deinstitutionalization as a reparative process at both the systemic and individual levels, as well as calling for the creation of reparation and redress mechanisms. I examine the entire body of the Guidelines, highlight their reparative content, and point out where the text may fall short of this perspective and how the shortcomings might be remedied. This paper is grounded in the situation of psychiatric institutionalization and the concerns of people subjected to that system, emphasizing issues faced by this constituency and its human rights concerns for redress and legal and societal change. The issues addressed include the following: the strengthening of normative standards with regard to the abolition of psychiatric institutionalization and forced interventions and the obligation to immediately end these violations; a policy shift towards the de-medicalization of psychosocial disability; the implications of reparative justice in diminishing the role and authority of those that have operated institutions including the mental health system; the role of adult persons with disabilities as members of families and the role played by some family members in institutionalization; issues to be considered in designing reparations processes and mechanisms. Following some introductory remarks, this paper is structured to follow the outline of the Guidelines, quoting the text with interspersed comments and ending with a brief conclusion.
]]>Laws doi: 10.3390/laws13020013
Authors: Fatimah Alshehaby
Saudi Arabia boasts a diverse and abundant cultural heritage that reflects a fusion of pre-Islamic and Islamic civilizations, serving as a precious legacy for future generations. Confronted with the challenges arising from globalization and rapid development, preserving intangible cultural heritage has become increasingly challenging, particularly in the absence of comprehensive heritage policies. The initial steps toward conservation were taken in 1972 when legislation was enacted to protect historical and cultural sites. However, it was not until 2014 that a new law was introduced to address the gaps left by the 1972 law. Unfortunately, this legal protection predominantly centered on tangible aspects of cultural heritage, leaving the equally important intangible cultural heritage neglected and unprotected. This study aims to evaluate the existing legal mechanisms in Saudi Arabia for the preservation and protection of intangible cultural heritage. It identifies the existing deficiencies and obstacles in the current cultural heritage framework regarding the preservation of intangible cultural heritage in Saudi Arabia. Our analysis focuses on how Saudi Arabia aligns with the principles and guidelines established by the 2003 UNESCO Convention for the Safeguarding of Intangible Cultural Heritage.
]]>Laws doi: 10.3390/laws13020012
Authors: Kimberly Maslin
When Hannah Arendt writes about the law, she does so as a political theorist, genocide survivor and critic of modernity. She also writes as a phenomenologist, which is to say, she is mindful not only that people create the law, but that law constitutes a people. In Origins, she calls attention to the importance of the rule of law in the emergence of totalitarianism. In On Revolution, she seeks a way of grounding political authority in something other than an Absolute. In the process, Arendt looks to another group of intellectuals who grappled with the nature of authority under conditions of modernity—the Early German Romantics. Romantic fragments are philosophical, poetic, even musical. For Arendt, the most highly valued fragments are historical because these fragments provide not only protection against totalitarianism but also a possible solution to the problem of authority. In this article, I explore Arendt’s interpretation of the Declaration of Independence as a historical fragment. She draws on a phenomenological approach to fragments, found primarily in the work of Rahel Varnhagen and Dorothea Veit-Schlegel, to create a resilient yet malleable basis for authority, thereby grounding political authority in concrete historical events, rather than in human nature.
]]>Laws doi: 10.3390/laws13020011
Authors: Lawrence M. Mute Agnes K. Meroka-Mutua
When it is realised meaningfully, barrier-free access enables pedestrians with disabilities to use streets without being impeded by non-existent or poorly maintained sidewalks, inaccessible overpasses or underpasses, crowded sidewalks, lack of traffic controls, lack of aids at street crossings, unsafe motorist behaviour, and poor signage and lighting. While Kenya has laws in place that are intended to facilitate barrier-free access, in reality, these laws are not implemented, resulting in the violations of rights of pedestrians in general, and pedestrians with disabilities in particular. Using the lived experiences of pedestrians with disabilities, this article reflects on the policy, legislative, and practical contexts which undermine access. It shows that despite the range of policy and legal instruments which Kenya has adopted or enacted to ensure the public in general can access streets, pedestrians with disabilities enjoy arising benefits only marginally. The article’s thesis is that continental policy and normative instruments and institutions may impel Kenya towards ensuring that pedestrians with disabilities have meaningful barrier-free access.
]]>Laws doi: 10.3390/laws13010010
Authors: Javier Morán Alina Kilasoniya
The European Union classifies “novel foods” as those not widely consumed before 15 May 1997. This category includes recently created, innovative foods, as well as those made using new technologies and processes, and foods with a traditional consumption history outside the EU. Distinguishing between “novel” and “conventional” foods is legally significant, as the former require official authorization under the Novel Foods Regulation. The regulation prioritizes safety, accurate labeling, and nutritional parity with replaced foods. Regulation (EU) 2015/2283, effective from 1 January 2018, replaced prior regulations, facilitating access to the EU market for novel and innovative foods while maintaining high safety standards. Classifying botanical products as novel can be intricate. Safety assessments for plant products must consider diversity in species, varieties, ecotypes, and chemotypes, as cultivation practices influence chemical composition. The article reviews the legislation applicable to botanicals and proposes different ways to evaluate in advance whether a product is “novel” or not, emphasizing the evaluation of the origin and consumption history of foods of plant origin.
]]>Laws doi: 10.3390/laws13010009
Authors: Albert Sanchez-Graells
Public sector digitalisation is transforming public governance at an accelerating rate. Digitalisation is outpacing the evolution of the legal framework. Despite several strands of international efforts to adjust good administration guarantees to new modes of digital public governance, progress has so far been slow and tepid. The increasing automation of decision-making processes puts significant pressure on traditional good administration guarantees, jeopardises individual due process rights, and risks eroding public trust. Automated decision-making has, so far, attracted the bulk of scholarly attention, especially in the European context. However, most analyses seek to reconcile existing duties towards individuals under the right to good administration with the challenges arising from digitalisation. Taking a critical and technology-centred doctrinal approach to developments under the law of the European Union and the Council of Europe, this paper goes beyond current debates to challenge the sufficiency of existing good administration duties. By stressing the mass effects that can derive from automated decision-making by the public sector, the paper advances the need to adapt good administration guarantees to a collective dimension through an extension and a broadening of the public sector’s good administration duties: that is, through an extended ex ante control of organisational risk-taking, and a broader ex post duty of automated redress. These legal modifications should be urgently implemented.
]]>Laws doi: 10.3390/laws13010008
Authors: Kody W. Cooper
A growing number of states have responded to negative trends in civic knowledge, trust, and engagement by creating new institutes or schools at state universities, with the express aim of reinvigorating civic education and thoughtful, engaged citizenship. In seeking to increase civic knowledge, champion viewpoint diversity, model civil discussion of ideas, combat polarization, and embrace the civic responsibilities of higher education, these institutes can be seen as carrying forward the American founders’ vision of civic education, the moral foundations of law and constitutionalism, and the constitutional principles of free speech and federalism.
]]>Laws doi: 10.3390/laws13010007
Authors: Amelia Cahyadini Sherly Ayuna Putri Tasya Safiranita Muhammad Jaka Hidayat
Digital transformation fuels technological advancement and widespread public use of Internet networks, leading to a growth in digital platform users. This increase is highly likely to boost platform profits by obtaining more insights into user behavior. Additionally, digital platforms generate income through monetization. The purpose of this research is to examine the role and challenges of technology architecture as an instrument of digital tax imposition in Indonesia and to see further the digital tax arrangements in Indonesia and several countries in the world. This research uses a normative juridical approach by examining the norms or rules formulated in law without excluding empirical facts in the field. The results show that the imposition, implementation, and regulation of digital taxes have potential and challenges from various aspects. Their success will depend on the ability to overcome these challenges while maximizing the opportunities of technological architecture to increase digital taxes. Furthermore, to regulate digital tax itself, governments can update and integrate digital tax arrangements, as well as collaborate with other related parties regarding the arrangements or principles used for the imposition of digital tax.
]]>Laws doi: 10.3390/laws13010006
Authors: Eleni Gavriil
The article herein examines the case-law interplay between human rights and international investment law. An example of this interplay is the relation of property rights to protection from expropriation. In this study, a conceptual framework is developed, which represents the various ways of case-law interaction between the two disciplines regarding protection of property. This is achieved by using a cross-reference approach, where it is proven that the two legal fields overlap and share these common principles, albeit with their structural differences. This interplay has various dimensions, and this article aims at analysing them and ultimately illustrating that human rights and international investment law are not independent from each other.
]]>Laws doi: 10.3390/laws13010005
Authors: Barry A. Whaley Jonathan G. Martinis Giuseppe F. Pagano Sara Barthol Jessica Senzer Pamela R. Williamson Peter D. Blanck
Since the passage of the landmark Americans with Disabilities Act of 1990, the United States federal government, states, and localities have passed laws and created policies intended to ensure that people with disabilities had full and equal access to public spaces. Nevertheless, more than three decades after the ADA, people with disabilities continue to face architectural and other barriers to community inclusion and participation. This article describes laws, policies, and initiatives that are implemented in the United States at the federal, state, and local levels to address these barriers, examines their effectiveness, and describes the views of advocates working in furtherance of the rights of people with disabilities and the inclusiveness of public spaces. We conclude by providing brief recommendations for ways federal, state, and local governments may ensure people with disabilities have full and equal access to public spaces.
]]>Laws doi: 10.3390/laws13010004
Authors: Luciane Amaral Corrêa Münch Taís Schilling Ferraz
From the perspective of defuturing design philosophy, this article discusses the close relationship between the growing body of artificial-intelligence (AI) artifacts in the Brazilian Judiciary and the phenomenon of litigiousness therein. Litigiousness has traditionally been tackled through mechanisms that increase productivity and efficiency in case processing, a strategy that has not succeeded in reducing litigiousness, as data make evident. Analyzing data from relevant sources, this article demonstrates that AI artifacts mostly perform tasks related to clustering and mass handling of cases, following the same path dependency. Consequently, they entail risks of judges’ alienation and loss of agency, which can negatively impact citizens’ fundamental rights. Moreover, they defuture; that is, they erase other (preferable) futures. Albeit AI artifacts can play a part in tackling litigiousness, there should be a critical reflection upon futuring and defuturing. Therefore, this article recommends that SoDF—a systemic approach to design that seeks to explore design consequences, futuring and defuturing—be mandatory to any AI design process. Additionally, it proposes continuous judicial monitoring for alienation and loss of agency, as well as investments in judicial education to empower judges to effectively control and supervise AI artifacts. Finally, it suggests a further research agenda.
]]>Laws doi: 10.3390/laws13010003
Authors: Adam J. MacLeod
Renewed attention to equity in higher education is welcome because true equity helps us to reason together well. When administered correctly, the jurisprudence of equity models civil discourse and, therefore, can teach us how to carry out civic engagement reasonably. Equitable interpretation of the law teaches us how to understand each other charitably. And equity’s deference to law teaches us how to reason well together about our practical problems. Law is the practical reasoning that we do together. Equity serves the ends of justice by serving law, rather than undermining it. These functions of equity in adjudication point toward a model of equity in practical reasoning and civic discourse more broadly. Research method: jurisprudence.
]]>Laws doi: 10.3390/laws13010002
Authors: Mihaela Tofan Alina-Adriana Arseni
The present study aims at providing an overview of the international, European, and national legal frameworks relating to the obligation of intermediaries of financial transactions to report to tax authorities, and the professional secrecy which applies to their professions, as well as the conflict between the two. The authors address these topics from theoretical and jurisprudential perspectives, both at national and European levels, using doctrinaire, documentary, and comparative approaches. The analyses pointed out that the focus is placed on lawyer–intermediaries’ activities and liabilities when their activity is covered by confidentiality and legal privilege. Specific attention was revealed to be necessary when the conditions under which an exemption from the reporting obligation applies, and the particularities of the effects of the regulation in these scenarios. The topic of observing the legal framework and solving the possible conflicts generated by the divergent regulation of the law enforced has been the subject matter of recent European case laws that impact all the legal systems of the European Union’s member states, which has necessitated an examination of the hierarchy of law systems within the European Union member states and to emphasize the practical jurisprudential effects.
]]>Laws doi: 10.3390/laws13010001
Authors: Marco Greggi Anna Miotto
In 2022, the European Commission introduced, for the first time in its history, a windfall profit tax to be applied on “excessive” profits realized by qualified businesses operating in the “Oil and Gas” sector. Immediately after its implementation, questions arose as to its sustainability and its consistency with constitutional principles of the different member states regulating the domestic power to tax. To assess the consistency with the aforesaid rules, the article samples two countries, inside and outside the EU (Italy and Australia, respectively), and the historical precedents of the matter. Italy has been chosen due to the particularly stringent set of principles regulating the power of the legislature to tax, and Australia has been chosen because of the long-standing experience with superprofit taxes. In most of the scenarios analyzed, one common feature emerged: the complexity in defining the “Extra” nature of the profits and, consequently, the uncertainties in the calculation of the taxable base. In the case of Italy, for instance, the legislator had to intervene in several different moments to fine-tune the taxable base and restore certainty to the tax system. As a conclusion, while the taxation of extra profits should not per se be disregarded, its implementation demands a more robust and precise legal framework together with the understanding that the introduction of such a levy would be a one-way journey for the tax systems: windfall profits taxes would be here to stay.
]]>Laws doi: 10.3390/laws12060091
Authors: Xiayang Chen Weiqiu Long
As the green bond market expands, an increasing number of Green Bond External Reviewers (hereafter ‘GBER’ or ‘GBERs’) have gained momentum among investors and financial regulators. A GBER enhances the credibility of green bonds and prevents greenwashing risk in the green bond market by reducing the information asymmetry between issuers and investors. China is the second largest issuer of green bonds in the world. The current Chinese GBER legal framework is insufficient to ensure green bond market sustainability. Our purpose in this paper is to analyze the inadequacies of the Chinese GBER regulatory framework and to provide suggestions for overcoming the potential challenges within it. A textual analysis of primary legal sources and secondary academic sources serves as the main research methodology in this study. This paper provides an in-depth analysis of China’s GBER regulatory framework and addresses its shortcomings and weaknesses. Furthermore, given the evolving stage of the Chinese green bond market, this paper analyzes potential challenges for GBERs and proposes some suggestions to ensure high-quality reviews by GBERs.
]]>Laws doi: 10.3390/laws12060090
Authors: Ana Tereza Souza Domingos Carolina Oliveira Mesquita Emiliano Lobo de Godoi Thiago Augusto Mendes
The planning and application of public policies in the panorama of the right to adequate food stands out for the development of the food supply of the Brazilian population. However, it is questionable whether these public policies have been effective in contributing to adequate nutrition. The aim of this article is to study the effectiveness of public food security policies in Brazil between 2012 and 2022. Also, urban agriculture is analyzed as an alternative food policy that can be carried out by the population, and contributes to the use of urban space. To understand the country’s food security situation and the effectiveness of public policies in avoiding a scenario of hunger and insecurity, the hypothetical-deductive method and the technique of bibliographical and documentary research are used, together with the theoretical framework in the theory of the cycle of public policies. It is concluded that the public policies developed were gradually weakened, and that between 2019 and 2022, the Brazilian government took measures discouraging the implementation of food policies. Brazil, with disjointed policies, facing the pandemic and an economic crisis, is in a situation of food insecurity and has portions of the population in a situation of hunger.
]]>Laws doi: 10.3390/laws12060089
Authors: Dominique Moritz Ben Mathews
In 2020, the United Kingdom’s Divisional Court made international headlines for their decision in Bell v Tavistock (2020) [...]
]]>Laws doi: 10.3390/laws12060088
Authors: Daisy Ball James Suleyman
On 27 March 2023, Aiden Hale broke into the Covenant School, a private Christian academy in Nashville, TN, and killed three students and three staff members. Hale, a former student at the school, was transgender. Although assigned female at birth, Hale identified as male, asked to be called by a male name, and used he/him pronouns. In the aftermath of the shooting, a newfound wave of anti-trans rhetoric soared, once again putting members of the transgender community in harm’s way. In this article, we review the details of the Covenant School shooting and consider them in the context of the anti-trans movement in the United States, a movement that has escalated as transgender people have become more visible and more vocal in society. We then present findings from an extensive content analysis of newspaper coverage in the two weeks following the shooting (27 March–10 April). In so doing, we add to the literature on K-12 school shootings and gender studies, specifically stigma towards the transgender community.
]]>Laws doi: 10.3390/laws12060087
Authors: Treasure Hlayisani Mathebula Kolawole Olusola Odeku
While the colonial and apartheid regimes utilised draconian, arbitrary, segregated, discriminatory, and exclusive anti-black social-socioeconomic policies and laws to deny the majority of black South Africans access to and participation in various economic activities, post 1994 democratic South Africa has strategically introduced progressive policies and laws to ensure that black South Africans play active productive roles in socio-economic activities in all sectors. While this is commendable, various corporations and businesses owned by white companies are supposed to ensure that black people become part and parcel of the businesses, and companies are being denied active participation, using fronting purposefully to circumvent the requirements of the anti-fronting laws. Against this backdrop, this paper seeks to analyse the post-apartheid anti-fronting interventions that foster the mainstreaming of black South Africans into the corporate sector. The paper uses a literature review methodology to find and analyse primary and secondary sources of data relating to equality, BEE, and fronting. This paper presents the historical exclusion of blacks through the instrumentality of colonial and apartheid apparatuses and laws brutally utilised to exclude blacks from economic activities. Post 1994 democratic transformative interventions—laws—have been enacted to redress the segregated and exclusive laws; however, fronting activities and practices continue to undermine and circumvent successful implementation. This said, the post 1994 government continues to tackle impunity through the exploration of civil and criminal responsibilities and accountability of perpetrators and use the rule of law-judicial means to hold perpetrators accountable. This paper found that fronting is a persisting issue in South Africa despite anti-fronting legislative measures developed over the past years when the B-BBEE Act was amended. This paper advises more on pro-active anti-fronting measures to pro-actively foster the mainstreaming of black South Africans into the corporate sector.
]]>Laws doi: 10.3390/laws12060086
Authors: Stuart S. Yeh
To fight corruption, money laundering, and organized crime, a proposed APUNCAC Beneficial Owner Rule would require financial service personnel to obtain and submit certification by the true beneficial owner when covered funds are transacted in amounts exceeding USD 3000. The strategy would trap front men into false statements, create a transaction-level record of assertions by front men that can be tested by a prosecutor, eliminate loopholes that allow criminals to escape prosecution in offshore havens, not require proof of a predicate crime or the illicit nature of funds, trigger a chain of witness cooperation, fight organized crime using a domino strategy, and be accomplished via a relatively simple change in domestic laws. Analysis suggests (1) the required technology exists; (2) transaction friction would be minimal; and (3) that the implementation of the Rule is feasible and practical, both operationally and from a legal standpoint, suggesting that the proposed Rule offers a promising strategy to fight organized crime.
]]>Laws doi: 10.3390/laws12050085
Authors: Warren Binford Michael Garcia Bochenek Pablo Ceriani Cernadas Emma Day Sarah Field Marci Hamilton Ton Liefaard Benyam Mezmur Fasil Mulatu Ann Skelton Julia Sloth-Nielsen João Stuart Hans Van Loon Jinske Verhellen
The ILA Study Group began its work by identifying guiding principles that should frame and inform state practices with respect to children in migration. These principles included, but were not limited to, non-discrimination; the best interests of the child; the right to life, survival, and development; the right of the child to express their views on all matters affecting them; and the right to an effective remedy. The Study Group identified some of the most common rights violations for children in migration such as arbitrary age assessment practices; inadequate and age-inappropriate reception policies and facilities; and immigration detention of children and other coercive practices. The Study Group undertook a multidisciplinary approach by summarizing the research documenting the harmful effects of these practices on child health and well-being. It surveyed (1) treaties and international instruments that might recognize a right or remedy for children on the move; (2) regional and international fora where the claims of children could be heard; and (3) the growing body of regional and international jurisprudence upholding the rights of children in migration. Finally, it identified gaps in the international and regional frameworks and formulated recommendations as to how to ensure children in migration are able to enforce their rights and access justice.
]]>Laws doi: 10.3390/laws12050084
Authors: António Mendes Oliveira Ricardo Lopes Dinis Pedro Pedro Miguel Alves Ribeiro Correia Fabrício Castagna Lunardi
In this paper, we seek to define the Portuguese Electronic Jurisdictional Administrative Procedure and characterize the scope and success of its implementation in terms of access to justice and court efficiency. It encompasses different perspectives on the judicial system and the electronic administrative procedure, reflecting the diversity of its authors, and combines a theoretical approach and discussion with statistics produced with official judicial data. Therefore, it introduces the issue and its background and discusses the models and principles of electronic judicial procedure and its representation in the Portuguese judicial procedure and law. It also presents the Portuguese exceptional and temporary regime for conducting judicial hearings in the context of the COVID-19 pandemic, discussing its merits and presenting the corresponding judicial statistics. The paper concludes that the advent of electronic judicial procedure, driven by technological advancements and aiming to achieve procedural effectiveness and efficiency, represents a paradigm shift and a change in the nature of the legal process, i.e., an ontological transformation in the theory of the process that requires a robust conceptual framework, to ensure consistent interpretation and application of procedural law and to guarantee respect for equality and legal certainty.
]]>Laws doi: 10.3390/laws12050083
Authors: Vasilica Negruț Ionela-Alina Zorzoană
Considered as being the main component element of the advisory procedure, an endorsement is an opinion that an administrative body requests from certain authorities and administrative structures, according to the subject matter of the regulation, to adopt/issue an administrative deed. In this article, using logical interpretation as well as comparative analysis, we set out to highlight the significance of endorsements in Romania, outline their legal nature, and establish the relationships between the types of endorsements, so that the conclusions may represent a starting point for a future theory of this type of documents. We considered the French specialty literature to give a comparative law note to our approach. At the same time, we considered certain types of endorsements in some European states, based on the analysis of a Codex regarding a series of Constitutions of some European states in order to emphasize the importance they give to these endorsements. We gave an overview of the theory of endorsements through the lens of the existing legislation over time in Romania or rather, its lack thereof. In our study, we also referred to the draft ReNEUAL Code of Administrative Procedure of the European Union, which aims at “transposing the European values into the regulation of administrative procedure related to the non-legislative implementation of European Union law and policy”. We set out on this analysis, considering the lack of legal regulation of endorsements, their legal nature, and their effects, with reference not only to doctrine but also to some cases that we considered for analysis from court practice. In the framework of the new effort to develop the Code (still in the draft form) in Romania, it seems that endorsements will receive their well-deserved place, distinct from simple administrative operations. Our main approach concerns Romanian legislation, doctrine, and jurisprudence, but it also includes a brief analysis of the jurisdiction of the Court of the European Union, with reference to the endorsements issued at the level of the institutions of the European Union. As a general conclusion, we believe that endorsements should be separately regulated, by clearly distinguishing between administrative documents and administrative operations, in the future Code of Administrative Procedure.
]]>Laws doi: 10.3390/laws12050082
Authors: Mirela Župan Martina Drventić Barišin
The new ECtHR decision in the case of Z. v. Croatia suggests that the rule of parental responsibility acquired ex lege is not always easy to implement in child abduction cases. The case primarily raised the question of determining whether the removal or retention of the child is wrongful in situations when the unmarried left-behind father does not have the ex lege right to parental responsibility under the law of the country of habitual residence, but he has acquired it under the law of the country in which he and the child had their previous habitual residence. In addition, the case of Z. v. Croatia raises the issue of renvoi, the habitual residence of children whose lifestyle involves frequent moving with their parents, as well as the issue of the need for thorough justification of the court decision. The identified difficulties showed the need to clearly elaborate and determine the interrelationship between Article 3 of the Child Abduction Convention and Article 16(3) of the Child Protection Convention, as well as the necessity to evaluate domestic legislative solutions and the practice of the national authorities that have led to the determination of violation in the present case.
]]>Laws doi: 10.3390/laws12050081
Authors: Wen Xiang Olubayo Oluduro
Nigeria is one of the top countries of China’s outward foreign direct investments in energy and power projects to meet the needs of China’s fast-growing energy-intensive industries. Following several risks faced by investors to invest in countries with high levels of regulatory, judicial and political uncertainties that appeared in most African states, including Nigeria, contracting parties often take steps to advance and enhance their investment relations and investment climate through an agreement or bilateral investment treaties. This paper examines the China–Nigeria Bilateral Investment Treaty (BIT) and the investment arbitration framework in place in the energy sector. It includes a general analysis on China–African BITs and features common difficulties and possible ways of addressing them. It analyzes the adequacy or otherwise of these frameworks and the various protections afforded to the contracting parties or the host state and the investors. It contends that the current China–Nigeria BIT is lacking essential environmental and social aspects, including sustainable development, corporate social responsibility, transparency and respect for the human rights of host communities, for the promotion of better China–Nigeria investment relations. Notwithstanding the fact that there has not been any known energy dispute in China–Nigeria-related projects, this paper calls for the need for an effective and efficient dispute resolution mechanism to address future disputes between the parties, in order to promote a favorable investment climate for Chinese (and international) investors willing to invest in Nigeria. It advocates that the China–Nigeria BIT should be unambiguous and well drafted to cover issues that could best address investment disputes in the energy sector.
]]>Laws doi: 10.3390/laws12050080
Authors: Gayitri Kavita Indar Christine Sharon Barrow Warren E. Whitaker
In American schools, conversations about violence prioritize direct violence, while indirect violence is virtually ignored. This current emphasis overlooks the structural violence deeply embedded in America’s social, political, and economic institutions, which were intentionally designed to exclude, and position some groups to experience disproportionate levels of poverty, exploitation, and persecution. To understand the mechanisms of structural violence, the concepts of structural violence and total institutions, the tenets of Disability Critical Race Theory can be used as an analytical lens. This retrospective comparative case study does so by exploring similarities in the lived experiences of Black, Emotionally Disturbed males across metropolitan special education, juvenile justice, and medical systems. The findings demonstrate a “convergence of violence” in America’s juvenile justice, medical, and special education systems, collectively pushing K–12-aged participants into carceral sites, denying them voice and choice, and providing them with performative healthcare. Our study recommends that institutions designed to serve K–12-aged learners use cross-sector collaborations to meet holistic learner needs and mitigate pressures to engage in direct violence. Specifically, we offer the Whole School, Whole Community, Whole Child model as a national approach to increase access to healthcare providers, social services, and mental health services, as well as engaging community stakeholders critical to understanding the cultural context of learners’ lived experiences.
]]>Laws doi: 10.3390/laws12050079
Authors: Costanza Honorati
The need to protect victims of domestic violence is becoming increasingly more important in many States. The 1980 Hague Convention on international child abduction, which in principle requires the child’s return and apparently leaves little scope for protecting the child’s mother, is at times perceived as being at odds with this need. The 2022 US Supreme Court’s judgment in Golan v Saada is set to become a leading case with regard to abductions occurring against the backdrop of domestic violence. Although the USSC, out of necessity, considers the issue from the viewpoint of the US legal system, the impact of the decision will be felt well beyond the country’s borders. This paper will start by analysing the legal arguments developed by the USSC in finding that ameliorative measures are not required by the 1980 Hague Convention, but lie at the discretion of the courts, as well as the general principles laid down by the USSC to guide the exercise of that judicial discretion. Furthermore, the rationale for—discretionary, but still relevant—protective measures will be measured against the Brussels II-ter EU Regulation, which has established a different legal framework for EU Member States. In contrast to the position under pure Hague cases, the EU Regulation now clearly calls on the courts of the State of refuge to guarantee the child’s physical and psychological safety by directly adopting provisional measures, which will apply to the child upon return to the State of habitual residence and which are recognizable and directly enforceable in that Member State. It will be argued in this paper that ameliorative/protective measures offer a means for filling a gap that is increasingly being felt within public opinion, but that could undermine the efficacy of the 1980 Hague Convention. The best way of ensuring that domestic violence cases are not neglected, while at the same time remaining within the confines of the 1980 Hague Convention, would be to adopt expeditious, substantively well-defined, and effective protective measures.
]]>Laws doi: 10.3390/laws12050078
Authors: Katarina Trimmings Onyója Momoh Konstantina Kalaitsoglou
When a mother commits an international child abduction, even if she is fleeing domestic violence perpetrated by the left-behind father, she is bound to face complicated return proceedings under the 1980 Hague Child Abduction Convention. Such mothers are particularly vulnerable; apart from the costly, cross-border proceedings they face, if the court issues a return order, they risk returning to the abusive setting they fled from. This article explores avenues for safeguarding the protection of abducting mothers in return proceedings. The authors provide a range of potential avenues for improving the standing of the abducting mother fleeing domestic violence, including judicial and legislative interventions. The article delves deeper by considering the interplay between international child abduction law and international refugee law in cases involving domestic violence allegations. Particular emphasis is given to Article 20 and the growing instances of mothers defending return orders on asylum grounds pursuant to Article 20 and the flowing human rights implications. The authors point out a niche area for further research: the interplay between domestic violence and asylum claims.
]]>Laws doi: 10.3390/laws12050077
Authors: Lalisa Froeder Dittrich
Recently, there has been a greater focus on promoting amicable solutions in cross-border family disputes. Alternative dispute resolution methods such as mediation and conciliation have been used in Brazil to avoid lengthy legal proceedings and to resolve cases where concerns about the child’s situation after their return arise. Parties involved in child abduction disputes can feel motivated to reach an agreement when they can decide on child support, custody, and visitation rights before the child’s return. However, enforcing these agreements can be challenging. This article examines Brazil’s experience with international legal cooperation requests under the Convention of 1980 on the Civil Aspects of International Child Abduction (Child Abduction Convention), where the parties faced these issues whilst trying to resolve their conflicts under one or more of the Hague Conventions. The article uses a pragmatic and empirical approach to address difficulties in recognising and enforcing agreements and available alternatives. It concludes with a suggestion for more cooperation between central authorities and with the idea that although adhering to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children could improve the scenario in Brazil, a new international instrument would significantly enhance the resolution of cross-border disputes, especially for non-European states.
]]>Laws doi: 10.3390/laws12050076
Authors: Maria Caterina Baruffi
The paper addresses the interplay between the 1980 Child Abduction Convention and the Regulation (EU) 2019/1111, briefly presenting the main novelties contained in Chapter III of the Regulation devoted to international child abduction, and then focusing on the provisions concerning the peculiar regime of recognition and enforcement of decisions on this subject matter. Final considerations are drawn with a view to determining whether the Regulation is able to streamline the most critical issues arising from the practical application of the predecessor Regulation (EC) No 2201/2003 and, more broadly, to cope with evolving and challenging cases of child abduction.
]]>Laws doi: 10.3390/laws12050075
Authors: Emmett McGroarty Brendan McGroarty
In On Revolution, Hannah Arendt makes the case that a constitution must account for the need of the human person to participate in the building of society, both as a primordial and continual action of founding. This paper draws on Arendt’s insight on the relationship between privacy and the notion of property, both of which the constitution must protect, as it is dependent on those notions. Property in its fullest sense is the means by which a person interacts with others and establishes a society. Particularly important for this notion of engagement are the concepts of shame and the love of goodness. The actor emerges from the private sphere to interact with others on the strength of the secrecy and confidentiality of her intimate, private relationships. Property is therefore essential to human flourishing and happiness. Following this, the activity of constructing the public forum on the basis of the private is an important feature of Arendt’s constitutionalism. Human Action showers third-party esteem on the actor’s family and friends, binding them to the constitutional structure and strengthening familial relationships and social cohesion.
]]>Laws doi: 10.3390/laws12040074
Authors: Zenobia Du Toit Bia Van Heerden
This chapter evaluates how South Africa approaches and applies certain aspects of the Hague Convention on the Civil Aspects of International Child Abduction, the challenges it faces, and how it submits proposals to improve its application. The SA courts are the upper guardians of children in terms of the common law and uphold the best interests of the child as a paramount principle. The Chief Family Advocate (“FA”) has been appointed as the Central Authority (“CA”) and falls under the Department of Justice and Correctional Services. The Chief Liaison Judge is based in the Appeal Court and has appointed Liaison Judges in the Provincial Divisions. How SA approaches international child abduction, and applies the HC, is explored. SA has a rich jurisprudence around the practical application of the HC. The procedure in these matters; the general rules and exceptions; the voice, representation and participation of the child; and the approach to children’s best interests and measures to protect their interests are evaluated. SA’s approach in regard to HC matters could be improved. How the challenges of an independent best-interests factor, outcomes veering away from the return principles, the FA’s compromised role as the CA, and the delays in outcomes prejudice the HC’s philosophy and the application thereof are considered. Recommendations are made for the acceleration of proceedings, more certainty in the consideration of Article 13 defences incorporating protective measures in return orders, further clarity from courts or the implementation of practice directives in these matters, the use of mediation, and further guidelines/directives to be provided. Given the importance of the HC in international child abduction matters, hopefully the aims and purposes of the HC can be fully realised in SA’s future.
]]>Laws doi: 10.3390/laws12040073
Authors: Justin J. Joseph Christoper W. Purser
High-profile school shootings in recent years have fueled fear and uncertainty among stakeholders (e.g., parents, teachers, and students) and the public debate on gun control legislation nationwide. These fears are reflected in the public discourse and the academic community, which focuses their investigation on rampage school shootings. To address this gap in the empirical literature, the current study’s goal is twofold: (1) to contribute to the descriptive understanding of school shooting characteristics; and (2) address the gaps in the extant literature through examining the perpetrators relationship with the school on the total number of victims during a school shooting incident. Secondary data analysis was performed on the K-12 School Shooting database (K-12 SSDB). A negative binomial and descriptive analysis were conducted on the K-12 School Shooting database, established by the Naval Postgraduate School’s Center for Homeland Defense and Security (CHDS) in 2018, which has been recently updated to reflect recent incidents. The findings and policy implications of the findings are discussed in detail in the manuscript.
]]>Laws doi: 10.3390/laws12040072
Authors: Yidou Yang
Although victims have the right to limited participation in trials and to seek reparations after sentencing, the legal structure of the International Criminal Court (ICC) prioritizes retributive justice over restorative justice and punishment over reparations. Thus, currently, although the perpetrators can be tried through the ICC, it is still difficult to obtain reasonable compensation for the damages suffered by the victims. On the one hand, the ICC’s reparation system may be restricted by the identity of the victim, ICC internal factors, and so on. The current structure of the ICC compensation system allows for hierarchical relationships between victims, while at the same time, there is tension between individual and collective types of compensation. These factors have led to a disconnect and gap between the protection of rights at the theoretical level and actual reparation. This dichotomy between the theoretical protection of the rights of victims and the real protection of victims in practice exists in the ICC. Victims are isolated from the field of vision due to potential repercussions. The idealistic illusion of justice is completed when the ICC stands on the stage and accepts the audience’s praise. However, for compensation in criminal courts, people are paying increasing attention to the legal process and content. In practice, the proportion of victims of international crimes is not low, and in some cases, victims are widespread. It can be seen that criminal compensation for victims is an issue that spans a vast range of people and regions. Nonetheless, there are still research gaps regarding reparation and other ideas of justice according to the ICC, how the ICC provides multifaceted safeguards for victims, and the limitations and influence of the mechanism of the ICC on the compensation of victims. Considering the above problems, this paper aims to analyze the International Criminal Court indemnity cases. This paper wishes to analyze reparations and other ideas of justice under the ICC, examining the approach of the ICC toward compensation for victims, where the ICC is heading regarding reparations for victims, how the reparations system works, and the advantages and disadvantages of the reparations system, as well as what are the potential problems of ICC related to reparations. What guarantees do the ICC’s mechanisms provide for victims to be able to receive reparations? How does the structure of the ICC reparations system conflict with victims’ reparations in practical terms? What are the potential obstacles and gaps between criminal trial reparations and victims? The first chapter wants to analyze the early Nuremberg tribunal, Tokyo tribunal, ICTY, and the ICTR by analyzing whether international criminal justice under these military tribunals was restorative justice or reparation justice and interspersed with analyses of reparation to victims under these tribunals. Then, it analyses it further about justice and reparation of the ICC, and it talks about the compensation for the victim and how the idea of compensation under the ICC has evolved. Using these arguments to analyze reparation and other different ideas of justice under the paly of ICC. The second chapter of the article analyzes the “participatate in trial for compensation”, “The limits of participating in trial”, “Safety protection for victims” to demonstrate the current protection and progress of the ICC system on the issue of victims’ compensation, this is because victims’ participation in the trial will bring a lot of help to the issue of compensation. The article analyses the significance and shortcomings of participation in a trial for compensation, which is necessary and meaningful to the issue of compensation because “participation in trial” and compensation are related and complementary to each other, as participation of the victims will bring a lot of help to the issue of compensation. The article analyses the section “Protection of the financial situation of victims: A possible alternative methods of reparation” because, to some extent, it can be seen as an alternative method of ICC compensation. The third chapter of the article hopes that by analyzing “Little compensation”, “The silence court put on victims’ rights of compensation”, “The ICC’s model of judicial administration remains optional” to argue and analyze how the structure of the ICC reparations system conflict with victim reparations in practical terms. Because the silence the court put on victims’ rights of compensation and the ICC’s model of judicial administration remains optional, both directly impact the issue of compensation. Chapter IV mainly aims to analyze some of the potential negative impacts of the ICC on victim reparations, specifically “The victim’s social death”, “Restrictions on “expression” between the victim and the court”, “Does the ICC hope to improve its attitude to victims?” to specifically analyze and argue these aspects of its potential negative impact on victim reparations. On this basis, this paper analyzes the gap between criminal trial reparations and victims to identify what negatives exist between the two.
]]>Laws doi: 10.3390/laws12040071
Authors: John Tobin
This paper outlines three broad models that have informed the relationship between the law and children’s involvement in decision making—the property/instrumentalist approach, the welfare approach, and a rights-based approach. It identifies and critiques contemporary legal practices that regulate children’s decision making against the standards required under a rights-based approach. The focus is on three contexts—(i) statutory bright line minimum age rules; (ii) presumptive age limits, and (iii) individual decision making involving children where there is often an interplay between the principle of Gillick competency and the parens patriae jurisdiction of a court. The key arguments advanced are that a rights-based approach tolerates minimum age rules and presumptive age limits under certain conditions. A rights-based approach also aligns closely with the principle of Gillick competency but offers a deeper and more nuanced insight into how to enable and support decision making with children across childhood. Finally, a rights-based approach also offers novel insights into how the parens patriae jurisdiction of common law courts, with its historical emphasis on the protection of children, could be developed to better protect children’s rights and decisional autonomy.
]]>Laws doi: 10.3390/laws12040070
Authors: Rob George James Netto
The courts of England and Wales permit applicants in 1980 Hague Convention child abduction proceedings also to bring concurrent applications for the return of the child to their state of habitual residence based on a summary welfare assessment, which can be issued and heard alongside the Hague application. Given the different nature of these two applications, having them heard concurrently raises a number of challenges for the parties in terms of the evidence required and for the court in terms of the analytical process being undertaken. This article explores the nature of the two applications, the reasons why they might be brought concurrently, and the challenges that can arise in such cases.
]]>Laws doi: 10.3390/laws12040069
Authors: Michelle Fernando Jessica Mant
In this article we compare how children’s objections to being returned to their country of origin are treated in Hague child abduction matters in three different international jurisdictions: England and Wales, Australia, and the United States. We examine the relevance of children’s views for the purposes of the ‘gateway’ stage of the relevant exception to mandatory return, and how children’s objections have been approached in legislation, case law, and scholarly commentary. We critique each jurisdiction’s approach against the objectives of the Hague Convention and the Convention on the Rights of the Child. We discuss how aspects such as the methods by which children are heard can make a difference to experiences for children and make recommendations to promote greater certainty and consistency in how children’s objections are heard and considered across jurisdictions.
]]>Laws doi: 10.3390/laws12040068
Authors: Mahrus Ali Andi Muliyono Syarif Nurhidayat
This study aimed to examine the connection between the crime of corruption and human rights violations. Indonesia’s corruption-eradication regulations have increased the possibility of handling human rights-based corruption cases. This study employed doctrinal legal research that mainly relied on anti-corruption legislation and corruption cases in judicial decisions. The results showed that the law states that corruption infringes on people’s economic, social, and cultural rights. We employed a plausible scenario to provide practical explanations of the relationship between the two variables. The types of crimes of corruption have a direct nexus to the violation of human rights. In addition, there was inadequate proof of the connection between corruption and human rights violations in court rulings. Specifically, a few court decisions relate corruption to human rights violations. Judges consider the relationship more thoroughly when making legal considerations and when it is not applied as an aggravated circumstance, resulting in significantly milder prison sentences. The findings imply the necessity of mainstreaming corruption as a human rights violation through comprehensive and massive studies. Furthermore, legal enforcement institutions need to issue guidelines and provide continuous training on handling human rights-based corruption cases to the police, public prosecutors, and judges.
]]>Laws doi: 10.3390/laws12040067
Authors: Andrej Sluga David Bogataj Eneja Drobež
The EU and its Member States share responsibility for improving the living conditions and integration of the Roma into society. When developing systemic solutions to address the challenges of the Roma population, the first thing to do is to provide them with a suitable living environment. A suitable living environment for vulnerable social groups includes social housing adapted to their needs and preferences as part of the social infrastructure. In the first, theoretical part, this paper explores the existing international, EU, and Slovenian legal framework for addressing the housing needs of the Roma community. In the second, empirical part, the preferences of the members of the Roma Community regarding the type and architecture of housing, and their financial capacity regarding the type and location of accommodation are examined through a survey that was conducted in the Roma settlement “Kerinov Grm”. The research paper gives answers to the following research questions: (1) what are the preferences of the inhabitants of Roma settlements regarding the type of housing and architecture? (2) how to provide adequate housing for members of the Roma community? and (3) do the Roma take advantage of the available free non-profit housing, and if not, why? The survey shows a very low level of satisfaction with living in Roma settlements, which, in combination with the growing population, limited possibilities for settlement expansion, and specific housing preferences, poses a unique challenge to the state and local communities.
]]>Laws doi: 10.3390/laws12040066
Authors: Jason Rudall
This article reflects on the proposed pandemic treaty negotiations, the content of the recently published Zero Draft and its prospects for success in preventing future pandemics from emerging at all. It argues that, as presently conceived, the proposed instrument does little to address environmental damage as the primary driver of zoonotic spillover, nor does it make sufficient provision for the implementation and enforcement of legal obligations. In particular, the piece suggests that human rights and rights of nature can and should feature more prominently in efforts to fully realize the One Health agenda and strengthen environmental governance with a view to mitigating the risk of future pandemics. Experience from rights-based approaches in other contexts suggests that they offer a promising conduit for achieving genuine policy reform and accountability regarding environmental degradation. Indeed, human rights and rights of nature can play an important role in mitigating ecological destruction, biodiversity loss and, in turn, preventing disease transmission from the natural world.
]]>Laws doi: 10.3390/laws12040065
Authors: Marilyn Freeman Nicola Taylor
A key impetus for the implementation of the 1980 Hague Convention on the Civil Aspects of International Child Abduction was the protection of children from the harmful effects of their wrongful removal or retention. This article considers how well the Convention is achieving this aim in light of the challenges it faces in a global society that has changed significantly since its introduction. Two key aspects of the Convention’s operation are addressed in this regard: (i) The intersection between domestic violence and the exception to return in Article 13(1)(b); and (ii) the adoption of practices to enable abducted children to receive information about, and be given effective opportunities to express their views and be heard in, Convention cases. The article discusses why, how, and to what extent the Convention needs to be nurtured to best position it to meet current and future challenges and demands, including the current differences in interpretation and implementation globally. Suggestions are made to help future-proof the Convention so that children can be best protected in the way envisioned by the Convention.
]]>Laws doi: 10.3390/laws12040064
Authors: Julia Kapelańska-Pręgowska Maja Pucelj
Even though hate speech is an extreme form of intolerance, which contributes to hate crime, the assessment of this particular behavior and its expressions is often problematic, because hate speech is difficult to define and even more difficult to investigate and punish. In the present article, the authors analyze the development of human rights standards (in particular as interpreted in the case-law of the European Court of Human Rights) regarding freedom of expression and hate speech and look at their application in Poland and Slovenia through a comparative analysis of Polish and Slovenian law and practice. We noticed that challenges with fulfilling international obligations to adequately respond to and fight hate speech can be observed and that some room for improvement on the level of lawmaking, policymaking, and their effective implementation is present. The most evident challenge remains in the low rates of prosecution of hate crimes recorded by the police, which need to be addressed by both States. In Slovenia, some positive systemic and regulatory changes have recently been introduced, while in Poland there has been little progress and not all victims of hate speech are adequately protected by law. The authors suggest a focus on educating individuals about the harmful consequences of hate speech and acts, adapting legislation to appropriately punish individuals who spread hate speech, raising awareness and understanding of the rhetoric used in the public sphere, and increasing media support for the aforementioned awareness, keeping in mind that solutions on how to appropriately address or prevent hate speech are by no means simple or straightforward.
]]>Laws doi: 10.3390/laws12040063
Authors: Mark Henaghan Christian Poland Clement Kong
A recent trend can be seen in jurisprudence concerning the Hague Convention on the Civil Aspects of International Child Abduction, at least in the Australasia/Pacific region. Courts are now more mindful of the abducted child in particular and will investigate the true impacts of returning the child to determine what is in their best interests, particularly in cases of domestic violence. This is a departure from the long-standing emphasis on returning abducted children promptly to their country of habitual residence, after which the courts of that country will make the final decision, because it is generally in the best interests of children to deter child abduction. This article compares various jurisdictions’ approaches with the lens of whether the courts are preferring the particular child over the ‘theoretical’ child.
]]>Laws doi: 10.3390/laws12040062
Authors: Rhona Schuz
Habitual residence is a key concept in the scheme of the Hague Child Abduction Convention because it determines the applicability of the mandatory return mechanism. However, the concept is not defined, and over the years there have developed different approaches thereto. In recent years, there has been increasing doctrinal uniformity as a result of wide adoption of the hybrid approach. However, there are real disparities in the way in which this approach is applied by different judges and the question of habitual residence remains one of the most litigated issues under the Convention. This article reviews recent case law developments and explains the disparities. It then proceeds to propose guidelines that might assist in increasing uniformity and ensuring that findings of habitual residence promote the objectives of the Convention.
]]>Laws doi: 10.3390/laws12040061
Authors: Sylvie Da Lomba
The idea for this Special Issue on ‘Human Rights Protection for Migrants’ was born out of a combination of frustration and scepticism in the face of International Human Rights Law’s enduring struggles to extend protections to non-nationals, but also out of hope in the light of (some) human rights bodies’ attempts to carve out ‘protective spaces’ for migrants against the backdrop of hostile migration laws and policies across the globe [...]
]]>Laws doi: 10.3390/laws12040060
Authors: Steven M. Virgil
Thousands of unaccompanied children arrive at the U.S. border each year. In many cases, these children are fleeing harsh conditions in their home country in search for safety and family. The U.S. immigration system lacks an adequate response for these children, providing only two exceedingly difficult paths: asylum and the Special Immigrant Juvenile Status designation. While providing access to a path to citizenship over time, the system is arcane and adversarial. Moreover, through it all, these children lack a right to an advocate who can protect their interest or at a minimum advise the immigration court of how to serve the child’s best interests. This article explores issues surrounding unaccompanied children in the U.S. immigration system and suggests the need for an independent juvenile immigration justice system similar to the Federal Juvenile Criminal Justice System.
]]>Laws doi: 10.3390/laws12030059
Authors: Lois J. Surgenor Kate Diesfeld Marta Rychert
Theories of rehabilitation have long been articulated in health and criminal justice contexts, driving rehabilitation practices in each area. In this article, several prominent theories are described to illustrate how their core assumptions aim to facilitate recovery and reduce relapse or reoffending. Professional disciplinary bodies are also often compelled by law or regulation to attend to practitioners’ rehabilitation after professional misconduct, with similar aims to restore the practitioner to safe practice. Yet, no rehabilitation theory has been articulated in this context despite professional rehabilitation being distinct from other settings. We propose that the current absence of a coherent theory is problematic, leaving professional disciplinary bodies to ‘borrow’ assumptions from elsewhere. Since rehabilitation penalties are frequently made by professional disciplinary bodies, we review several theories from health and justice contexts and highlight elements that may be useful in developing professional misconduct rehabilitation theory. This includes proposing methodological approaches for empirical research to progress this.
]]>Laws doi: 10.3390/laws12030058
Authors: Nikos Koumoutzis
Greece is a unique example of a country member of the Council of Europe that allows for the application of Sharia law by the Mufti on a select part of its citizenry: the members of the Muslim minority in Western Thrace (situated in NE Greece). However, to produce their effects, Mufti decisions need to undergo review and to be declared enforceable by the civil court. The aim of this article is to explore the relevant legal framework arranged in law 4964/2022 and presidential decree 52/2019, whereby the details of such a judicial review are set out. In particular, this article considers the prerequisite of the exequatur to religious adjudication, and then, it goes through all of the levels over which the said review extends, bringing progressively into focus the review of the scope of jurisdiction, the review of compatibility with the Constitution and the European Convention of Human Rights, and the review of some additional issues raised specifically by presidential decree 52/2019 over and above the points just mentioned. A final remark follows in connection with possible errors committed in religious adjudication—errors of law or fact—which remain beyond the reach of the review.
]]>Laws doi: 10.3390/laws12030057
Authors: Loi Thi Ngoc Nguyen
This paper investigates whether and how International Law on Indigenous Peoples (ILIP) can complement protections granted under International Refugee Law (IRL) and International Human Rights Law (IHRL) to refugees in camps in Thailand. Presently, there are over 90,000 refugees from Myanmar in Thailand, confined to nine camps along the Thailand–Myanmar border. These refugees belong to different ethnic minority groups, but the vast majority are Karen—Indigenous Peoples from the Thailand–Myanmar border regions. They have fled to Thailand due to persecution by Myanmar authorities and segments of the Myanmar population. To date, Thailand has refused to become a party to the 1951 Refugee Convention or its 1967 Protocol. The country has failed to develop an asylum system and its laws continue to regard refugees as ‘illegal migrants’. These refugees have been surviving in conditions of profound rightlessness. I posit that ILIP has a critical role to play in addressing the protection gaps and limitations in IRL and IHRL. In particular, the ILIP system of collective rights is vital in recognising the specific needs of refugees who are indigenous peoples. ILIP therefore provides a potent tool to make IRL and IHRL more responsive to the protection needs of indigenous refugees.
]]>Laws doi: 10.3390/laws12030056
Authors: Tomáš Peráček Michal Kaššaj
The rights and obligations of an executive as a top manager of a limited liability company seem to be a long-settled question. However, the opposite is true. We were particularly interested in the question of the rights and obligations of the manager as a statutory body of the most widespread type of business company. A very important issue is the definition of the relationship between the limited liability company and the manager. The reason for this is the fact that it is a business–legal relationship and the protection provided to the executive in relation to the business company is based only on their mutual contractual basis. In addition to the examination of managerial knowledge and skills, we focused primarily on a critical analysis of the legal definition of the rights and obligations of an executive and their responsibility towards a limited liability company. As part of our research, we analyzed extensive jurisprudence, which completed our understanding of the concept of an executive and also defined the framework of not only their actions, but especially their rights and obligations. To achieve our goal, we used several scientific methods designed for the study of law, such as analysis, synthesis, comparison, deduction, and description. We critically evaluated the results of our research and compared the development of Slovak and Czech jurisprudence in the context of its influence on the investigated issue. At the same time, we answered the research question of whether legislative intervention is necessary for the already existing rights and obligations of a manager in relation to their limited liability company. This analysis of the rights and obligations of the manager of a limited liability company has several implications for both managers and companies as a whole, such as managerial autonomy, accountability, responsibility, and the balance of power. The research findings highlighted the significant decision making authority granted to managers. The obligations identified in the analysis emphasized the need for managers to act responsibly and be accountable for their actions. The rights and obligations of managers need to be balanced with the interests of other stakeholders, particularly the company’s members. In conclusion, the critical analysis of the rights and obligations of the manager of a limited liability company, based on the managerial legislative basis, revealed that managers possess decision making authority, profit distribution rights, limited liability protection, and entitlement to compensation. However, they are also obligated to fulfill fiduciary duties, comply with laws and regulations, maintain proper records, and exercise due care. The research underscored the significance of managerial autonomy, accountability, and a balanced exercise of power in a limited liability company. By understanding and adhering to their rights and obligations, managers can effectively navigate their roles while contributing to the success and sustainability of the company
]]>Laws doi: 10.3390/laws12030055
Authors: Siti Anisah Sahid Hadi
The Indonesian Competition Supervisory Commission (ICSC) has the authority to investigate, prosecute, adjudicate, decide, and impose sanctions on business actors for violating Indonesian competition law. It also has the authority to establish procedural laws for the competition law enforcement procedures within its institution. This single role raises various issues in the current context, including the right to a fair trial and checks and balances. This article seeks to define the position of human rights, particularly the right to a fair trial, in competition law enforcement procedures. The result is that competition law enforcement procedures are subordinate to human rights, so they must be exercised in compliance with human rights standards, particularly the right to a fair trial. Based on the experience in Indonesia, this study finds that the ICSC’s single role is incompatible with human rights commitments in fair competition law enforcement procedures. As an alternative solution, this article encourages a modification and adjustment based on human rights commitments and checks and balances mechanism by limiting one of the ICSC’s authorities and broadening the interference of the Supreme Court in enforcing Indonesian competition law at the ICSC level.
]]>Laws doi: 10.3390/laws12030054
Authors: Melissa Ann Kucinski
This article will focus on judicial interviews of children, in chambers, including in Hague Abduction Convention cases; the potential promise and pitfalls of conducting such interviews; and how the U.S. experience provides an excellent template for future discussions and work on creating a soft law instrument on this important information-gathering tool.
]]>Laws doi: 10.3390/laws12030053
Authors: Jia Wu Yang Xia Apei Song
It has been more than ten years since the nationwide sentencing standardization reform was implemented in China to solve the widespread problem of uneven sentencing in criminal justice. A statistical analysis of 1595 written judgments of illegal possession of drugs showed that the reform of sentencing for the standardization amount-based crimes has achieved remarkable results, and judges’ discretion has been highly normative and consistent. Under the same criminal circumstances, the degree of consistency between the amount involved in the crime and imprisonment has significantly increased, which is more in line with the standards of formal justice. However, the effect of the sentencing standardization reform declined as the amount involved in the crime increased. This exposes the shortcomings of the standardized sentencing model when considering multiple crimes; these include confusion between the amount and circumstances of a crime, the imbalance between crime and punishment, and the application of discretionary circumstances in sentencing depending on the amount involved in the crime. Therefore, it is necessary to attach more importance to the evaluation of the legitimacy of the sentencing range established by criminal law in subsequent sentencing reforms and to further refine and perfect the standardized sentencing mode, with a shift from formal justice to justice in form and substance.
]]>Laws doi: 10.3390/laws12030052
Authors: Hannah Louise Moneagle
In 2015, 20 experts from academia, industry, and non-governmental organisations on 5 continents agreed to a set of seven international principles for ethical decision making (“the principles”) in managing human–wildlife conflict. The principles have since been recognised in wildlife management policy and standards in parts of British Columbia, Canada. In 2022, the principles were introduced to the Scottish Parliament by means of a formal Motion lodged by Colin Smyth MSP. Smyth expressed the view that opportunities existed to integrate the principles into the Scottish Government’s strategic approach to wildlife management and its species licensing review. The (now former) Minister for Environment, Biodiversity and Land Reform at the Scottish Government, Mairi McAllan, stated in the Motion debate that followed that she was committed to working to understand how the principles could sit alongside the Scottish Government’s ambitious programme to protect animals and wildlife. The Hunting with Dogs (Scotland) Bill was introduced to the Scottish Parliament prior (February 2022) to the Motion debate but passed on 24 January 2023, following various debate and amendment stages. It offered parliamentarians the first opportunity to align wildlife-specific legislation with the principles. The Bill received Royal Assent on 7 March 2023 and is now the Hunting with Dogs (Scotland) Act 2023 (“The Act”). A review of The Bill (and subsequent Act) can assist in identifying where it could have aligned more closely with the principles to assist decision makers in understanding how to usefully incorporate the principles into future wildlife legislation and policy.
]]>Laws doi: 10.3390/laws12030051
Authors: Jonas Ruškus
By adopting the Convention on the Rights of Persons with Disabilities (the CRPD) in New York, the United Nations heralded a new epoch on how disability-related matters ought to be comprehended and addressed across the globe. The aim of this article is to argue the role and substance of the CRPD, under which each State Party has a responsibility and duty to protect, promote and implement access to justice for all persons with disabilities on equal bases with others. Systemic and structural barriers to access to justice that are faced by persons with psychosocial or intellectual disabilities are highlighted, and the determinants of them are identified including boundaries of the principle of formal equality. The human-rights-based response within the framework of obligations of the States Parties of the CRPD to ensure access to justice for persons with psychosocial or intellectual disabilities is argued, with specific consideration of the principle of transformative equality. The analysis is based on the CRPD Committee’s jurisprudence, including Concluding observations for the States Parties, General Comments, statements and guidelines.
]]>Laws doi: 10.3390/laws12030050
Authors: Rinke Beekman Frea De Keyzer Tim Opgenhaffen
Since the UN Convention on the Rights of Persons with Disabilities (CRPD) was created, segregation of persons with disabilities is no longer allowed. Separate schools, sheltered workshops, and isolated social care homes impede inclusion and must be banned. Sport is a remarkable exception to this general principle. The CRPD explicitly states that persons with disabilities should have the opportunity to organize, develop, and participate in disability-specific sporting activities. This contribution—focusing on the Paralympics and Special Olympics—examines why the CRPD allows and encourages disability-specific sporting competitions, despite (or perhaps due to) its radical choice for inclusion. Beyond that, this contribution asks the obvious follow-up question: if disability-specific competitions are allowed, how can the criteria for participation be determined in a manner consistent with the CRPD? The CRPD opposes a medical approach to disability, yet that approach is often used in selection criteria. Although this contribution primarily focuses on sports, the impact is wider: it raises questions on inclusion and how to assess disability.
]]>Laws doi: 10.3390/laws12030049
Authors: Judith Cashmore Peiling Kong Meredith McLaine
Laws and policies in different jurisdictions provide a range of mechanisms that allow children involved in child protection processes and care proceedings to express their views when decisions that affect them are being made. Whether these mechanisms facilitate children’s involvement and whether they result in children’s views being heard and “given due weight in accordance with the age and maturity of the child”, as required by article 12 of the UN Convention on the Rights of the Child, is the focus of this article. The law, policy and practice in New South Wales, Australia, are used to provide a contextual illustration of the wider theoretical and practical issues, drawing on international comparisons and research. It is clear there is still some way to go to satisfy the requirements of article 12 in Australia and other jurisdictions. These mechanisms often do not provide the information children need to understand the process, nor do they consistently encourage meaningful participation through trusted advocates who can accurately convey children’s views to those making the decisions. It is generally unclear how children’s views are heard, interpreted, and weighted in decision-making processes. The research findings from a number of countries, however, are clear and consistent that children often feel ‘unheard’ and that they have had few opportunities to say what is important to them. A number of conclusions and practice suggestions are outlined for how the law could better accommodate children’s views.
]]>Laws doi: 10.3390/laws12030048
Authors: Svetlana Ivanova Natalia Lisina
Competent management of the production and consumption of waste is the foundation for ensuring a favorable environment in cities and comfortable living conditions for the population. Laws and regulations play a key role in this process since they determine measures aimed at creating conditions for safe waste management, an effective management system in the field of environmental protection from waste pollution. In the cities of many developing countries, including Russia, despite the efforts being made, there is an increase in the volume of municipal solid waste. Solving the problems of waste management has been set as a national task. The article analyzes the current condition of solid waste management systems in developed and developing countries and identifies the features and prospects of waste management, including the one in Russia. It is established that the existing set of organizational, sanitary, and legal measures, and legal regulation of relations and law enforcement practices in the field of solid municipal waste management in many developing countries is still in the forming stage. The positive experiences of countries in implementing sustainable systems of safe waste management and the positions of judicial bodies on controversial issues of waste management in cities can be used as the basis for an environmental policy of safe waste management at all levels of public authority, as well as improving legislation in the field of waste management.
]]>Laws doi: 10.3390/laws12030047
Authors: Tammy Cowart Tsuriel Rashi Gregory L. Bock
Pharmaceutical companies, like many other types of companies, are incentivized to create, manufacture, and distribute new products, in part due to the legal protections of patent law. However, the tension between patent rights and the public good has been heightened as pharma companies developed new vaccines to combat the COVID-19 pandemic. Wealthy governments paid well for vaccines and received ample supplies, while low- and middle-income countries struggled to obtain access to any vaccines. Some countries called for pharmaceutical companies to waive their patent protections for vaccines in order to facilitate the worldwide manufacture and distribution of COVID-19 vaccines. This paper will examine the rationale of patent protection and patent waiver issues, then compare these concepts with ethical constructs and a Jewish perspective.
]]>Laws doi: 10.3390/laws12030046
Authors: Marlena Jankowska Berenika Sorokowska
The purpose of this study is to explore the interaction between copyright, branding, marketing, and heritage protection with regard to a fashion brand. The authors use analytical-critical and legal-dogmatic methods, supplemented with desk research, a case study approach, and a review of the marketing literature. This paper argues that the top-tier fashion brands use the concept of artification in order to build their brands, mesmerize clientele, and increase revenues. Although design and reference to the arts play a major role in the luxurious and premium end of the fashion business, this analysis proves that the top players do not necessarily observe the appropriate laws in these areas. The reader will see examples of the flouting of basic legal constraints by big players, e.g., copyrights or property rights, including the monetisation of the creativity of others with the expectation of no legal challenge. Offenders capitalise on the likelihood that a legal suit is too demanding for smaller players, such as foundations or museums.
]]>Laws doi: 10.3390/laws12030045
Authors: Renato Antonio Constantino Caycho Renata Anahí Bregaglio Lazarte
In the past few years, Latin American countries have started to enact changes in their legal capacity regulations regarding persons with disabilities. However, even when these changes started over eight years ago, there were few to no analyses on the matter. In addition, there is no encompassing theory or typology on how these reforms happen and on their effects. In the present paper, we propose two axes of analysis for the reforms: enforceability and compliance with Article 12 of the CRPD. This matrix allows for four kinds of reforms: incipient, formal, conciliatory and radical. Using this matrix, we examined the legislative changes in Argentina, Brazil, Colombia, Costa Rica, the Dominican Republic, El Salvador, Mexico, Nicaragua and Peru. Incipient reforms (Mexico) are not that effective but can lead to serious later change. Formal reforms (the Dominican Republic, El Salvador and Nicaragua) have few to no effects. Conciliatory reforms (Argentina, Brazil and Costa Rica) are a legislative compromise that allows for progressive change. Finally, radical reforms create encompassing change that is good but might create problems in the implementation.
]]>Laws doi: 10.3390/laws12030044
Authors: Itziar Sobrino-García
Rural women in Latin America continue to face serious obstacles in land tenure, especially in areas such as México, Guatemala, and Bolivia. Gender inequality in land access is related to male preference in inheritance legislation, male privilege in marriage and state programs of land distribution. Consequently, the activities implemented by governments have failed to take women into account. For this reason, the Food and Agriculture Organization of the United Nations (FAO) and several partner organizations developed a set of “Voluntary Guidelines” (VGs) on responsible governance of land tenure to reduce inequality. Therefore, the main objective is to determine the degree of governments’ commitment to the fight against inequality in access to land and the role of women regarding these rural areas of Latin America. For this, this research tests the compliance with the “Voluntary Guidelines” of the FAO in Mexico, Guatemala, and Bolivia.
]]>Laws doi: 10.3390/laws12030043
Authors: Marcel Senn
When I received a request from MDPI in 2021, in the midst of the COVID-19 pandemic, to guest-edit a new online journal of philosophy of law and legal theory, including the history of their disciplines, it was immediately clear to me that this offer could be a great opportunity for all of us working in the field of philosophy of law or legal theory to develop an organ to exchange knowledge through this, as well as further crises [...]
]]>Laws doi: 10.3390/laws12030042
Authors: Matthias Mahlmann
This paper reconstructs some of the core elements of Dworkin’s epistemology of ethics. To understand why, for Dworkin, questions of legal philosophy lead to moral epistemology, the main points of Dworkin’s last restatement of his theoretical account of law are outlined. Against this background, the paper critically assesses the merits of Dworkin’s criticism of current prominent forms of skepticism and what it teaches us about the epistemology of legal thought.
]]>Laws doi: 10.3390/laws12030041
Authors: Samra Ibric
According to Dworkin, “truth” is an interpretative concept. Why? Moral judgements are often the subject of disagreement because they are often the result of divergent conceptual understandings. If, on the other hand, we want to interpret concepts correctly, we have to deal with the analysis of the underlying values we attach to these concepts. Dworkin understands the true as a matter of interpretation, which—and this is often misunderstood—is capable of producing a correct conception of the truth. The truth is thereby directly related to justice. Dworkin even ties his theory of interpretation to an objective truth that can only produce conclusive reasons for a specific advocacy of a particular position in an argument after responsible and intensive debate—in the sense of his two-stage theory. In fact, it turns out that Dworkin’s search for and conception of an objective truth describes a (historical) process. We interpret what our ancestors have already interpreted and continue to understand (in a modified way). This reflexive responsibility is ours to bear; according to Dworkin, it is our responsibility to always stand up for truth through good arguments.
]]>Laws doi: 10.3390/laws12030040
Authors: Kyle Lauriston Smith
Since the publication of Shoshana Zuboff’s The Age of Surveillance Capitalism, the strategies of Surveillance Capitalists and appropriate responses to them have become common points of discussion across several fields. However, there is relatively little literature addressing challenges that Surveillance Capitalism raises for the foundations of law. This article outlines Surveillance Capitalism and then compares the views of Thomas Aquinas and Ronald Dworkin in four areas: truth and reality, reality and law, interpretation and social custom, and virtue and law; finally, it closes by asking whether the law alone can provide a sufficient response to Surveillance Capitalism. The overarching argument of the article is that, while Aquinas’s view of the foundations of law accounts for and responds to the challenges of Surveillance Capitalism more effectively than Dworkin’s, law alone cannot provide a sufficient response to this emerging phenomenon.
]]>Laws doi: 10.3390/laws12030039
Authors: André Kistler
Spinoza’s philosophy argues for the freedom of individuals as singular beings in the state. This freedom is not perfect yet immanent. Freedom—according to the Ethics—is a consequence of true knowledge and virtue, which must be able to develop and can only be realised gradually. The state and the laws establish the framework that makes this freedom possible. Freedom and true knowledge are basic concepts of the metaphysical system. Justice, however, appears as a legal and political concept in Spinoza’s thought, which the philosopher did not discuss in depth. Nevertheless, the concept of justice has a specific significance in the philosophical context in which it occurs in the TTP—especially in the wisdom of King Solomon—and in the Ethics. Justice, on the one hand, strengthens harmony, security, and freedom. On the other hand, the freedom to philosophise forms a condition for justice to develop according to reason. The knowledge that justice has a importance in Spinoza’s thought is consistent with the complexity of his philosophy and makes its understanding more complete.
]]>Laws doi: 10.3390/laws12030038
Authors: Matthias Armgardt
The purpose of this essay is to outline the significance of Leibniz’s philosophy of law for the present. The essay traces the main features of Leibniz’s theory and points out what further developments of his approach are pending today. Finally, it shows how similar Leibniz’s basic convictions are to those of Ronald Dworkin.
]]>Laws doi: 10.3390/laws12030037
Authors: Nadia Elizabeth Nedzel
Dworkin’s and other analytic/positivist philosophers’ theoretical approach to law leads inexorably to politicization, totalitarianism, less justice, less trust in government, and less truth. A more practical approach is Fuller’s, which is based on experience of human behavior and an analysis of what has worked in the past. That is also the approach traditionally used in the common law system. This article uses a comparative study of the two Western traditions, their history, and their most prominent legal philosophers to explicate how and why Dworkin’s and Fuller’s approaches are consistent and inconsistent with those traditions, followed by a comparative analysis of the results obtained by prominent international NGOs. Dworkin’s approach, which grows out of analytic philosophy, is unworkable because like all scientistic theories, it treats human beings mechanistically, de-emphasizing personal responsibility, ignoring the need for individual incentive, and it assumes an all-encompassing, all-powerful government of experts to make legal decisions for a collectivity. Under Fuller’s common law approach, the proper role of law is to manage conflict, as it cannot be prevented and cannot always be resolved, thus building the public’s trust in government as unbiased and apolitical as possible. This concept of the rule of law places law above government, minimizes politicization, incentivizes personal responsibility, individual incentive, and entrepreneurship, and is the only true common good among men.
]]>Laws doi: 10.3390/laws12030036
Authors: Harro von Senger
This contribution is based on the Chinese concept called Moulüe. A unique feature of Moulüe, without parallel in Western praxis-oriented schools of thinking, is its Yin-Yang dimension. The two hemispheres of the Yin-Yang symbol, a white one and a black one, are inseparably interconnected. According to the Moulüe concept, the white hemisphere is the place of transparent, conventional, legal ways to solve problems, whereas the black hemisphere harbors hidden agendas, and unconventional, cunning methods to solve problems, with the 36 stratagems as a central component. A person with Moulüe competence who is confronted with a problem can switch from options for action in one hemisphere to options for action in the other according to the circumstances. This contribution shows how the realization of justice, and the spreading of truth, can be achieved based on Moulüe skill which enables the application of the 36 stratagems.
]]>Laws doi: 10.3390/laws12030035
Authors: Helen Gyr
The determination of truth in the aftermath of war aiming at establishing justice and peace is a key element of a transitional justice (TJ) process. The theory of justice of Roland Dworkin deals with an approach in which the interpretation of values such as equality, liberty or truth are paramount. Dworkin’s theory of justice is applied to constitutional states and lays out how democratic values are negotiated. The goal of a TJ process is to lead a state towards democracy after a war or internal armed conflict. TJ processes as well as Dworkin’s theory of justice are to be understood as dynamic, which implies that they are subject to constant change and thus to be considered in their respective social, cultural, political, and economic contexts. This paper explores the relationship between truth and justice in the framework of a TJ trial and Roland Dworkin’s theory of justice. The TJ process in Colombia serves as a case study because that was where I conducted field research in TJ in 2019.
]]>Laws doi: 10.3390/laws12030034
Authors: Michael Garcia Bochenek
Border pushbacks, including at the European Union’s external borders and by countries such as Australia, Mexico, Turkey, and the United States, are common—and in fact have become a new normal. These border policing or other operations aim to prevent people from reaching, entering, or remaining in a territory. Screening for protection needs is summary or non-existent. Pushbacks violate the international prohibitions of collective expulsion and refoulement, and pushbacks of children are inconsistent with the best interests principle and other children’s rights standards. Excessive force, other ill-treatment, family separation, and other rights violations may also accompany pushback operations. Despite formidable obstacles such as weak oversight mechanisms, undue judicial deference to the executive, and official ambivalence, domestic court rulings and other initiatives show some promise in securing compliance with international standards and affording a measure of accountability.
]]>Laws doi: 10.3390/laws12020033
Authors: Casey Watters
In August of 2022, the United States Department of Treasury sanctioned the virtual currency mixer Tornado Cash, an open-source and fully decentralised piece of software running on the Ethereum blockchain, subsequently leading to the arrest of one of its developers in the Netherlands. Not only was this the first time the Office of Foreign Assets Control (OFAC) extended its authority to sanction a foreign ‘person’ to software, but the decentralised nature of the software and global usage highlight the challenge of establishing jurisdiction over decentralised software and its global user base. The government claims jurisdiction over citizens, residents, and any assets that pass through the country’s territory. As a global financial center with most large tech companies, this often facilitates the establishment of jurisdiction over global conduct that passes through US servers. However, decentralised programs on blockchains with nodes located around the world challenge this traditional approach as either nearly all countries can claim jurisdiction over users, subjecting users to criminal laws in countries with which they have no true interaction, or they limit jurisdiction, thereby risking abuse by bad actors. This article takes a comparative approach to examine the challenges to establishing criminal jurisdiction on cryptocurrency-related crimes.
]]>Laws doi: 10.3390/laws12020032
Authors: Olivia Kelly
A socio-legal commentary, this article examines the emerging issue of digital harm in New Zealand’s health settings. There are recent cases, and an increasing number of them, demonstrating the medico-legal response to various forms of digital harm. Of these, several representative cases are considered in order to identify features of digital harm within the health context. The article questions whether this is a new type of harm, enabled by the creation of new technologies, or simply a different manifestation of conventional unprofessional or unethical behaviour. The article considers whether the existing medico-legal framework can appropriately respond to this harm and whether new legal or policy tools are required. The cases suggest that the rights and disciplinary systems in place can adequately deal with digital harm within their existing scopes, particularly when individuals have been harmed. However, gaps in the legal framework are identified, with particular reference to the actions of unregistered providers and harm to professions. Further, a future challenge for the system may be the response to COVID-19 vaccine denial and misinformation. As the legal response to digital harm in the health context is a relatively unexamined area of research, this work may guide future research.
]]>Laws doi: 10.3390/laws12020031
Authors: Kerri Evans
Unaccompanied immigrant children arrive in the US having fled deteriorating conditions and human rights violations in their home countries. Despite the large numbers of unaccompanied children, there is a lack of research on outcomes for unaccompanied children in the US and particularly for those in the Office of Refugee Resettlement’s (ORR) Long Term Foster Care (LTFC) program. This manuscript begins with a review of the existing laws that influence unaccompanied children (UC) served through the ORR’s LTFC program and a review of the current research on UC in foster care in the US. Notably, this manuscript also visualizes the numbers of UC that have arrived in the US since the early 2000s. These are used to provide a synthesis of recommendations for policy and practice with unaccompanied children.
]]>Laws doi: 10.3390/laws12020030
Authors: Hanna Björg Sigurjónsdóttir James Gordon Rice
This contribution reports on a child protection case concerning the removal of a child from the custody of a parent with intellectual and developmental disabilities (IDD) in Iceland. Employing a mix of document analysis and interviewing, the results demonstrated two key themes forming the analysis: One is the aura of professionalism. A careful examination of the working methods reveals a continuation of the poor practices typical of the past, despite the claims made that specialised support for persons with disabilities has been tried and was not successful. The second analytical theme is alleged disabilities. This case provided evidence of a previously unseen tactic, to the best of our knowledge, by which a parent’s disability status was called into question. The argument offered herein is that this was pursued to sidestep the protections afforded to disabled parents under Icelandic law in recent years. We conclude by arguing that the combination of a heighted awareness of these legal protections and a greater scrutiny as to how these cases are worked appears to have led to a series of evolving tactics that are employed against disabled parents in an enhanced disability rights environment.
]]>Laws doi: 10.3390/laws12020029
Authors: Elliot Doornbos
Colombian hippopotamus populations are increasing against the backdrop of general species decline. In addition to wider calls for further protection, this pocket population is considered an invasive species and is subject to ongoing legal discussions about how they should be controlled and managed. These proceedings currently consider two options: whether the hippopotamus population needs to experience yearly culls or to use a fertility management program. This article explores whether species justice has a place within the control of non-native species via this case study of the Colombian hippo legal proceedings. When reviewing this case, neither euthanasia nor fertility control are fully in the interests of the species; however, fertility control is more in line with their interests. The conclusion considers whether it is possible to recognise the interests of wildlife within species management and how a shift towards the interests of species and species justice at minimum could provide more dignified and harmless methods of species control as well as find alternative solutions which are more in the interest of the majority of parties.
]]>Laws doi: 10.3390/laws12020028
Authors: Benjamin M. Fisk
This paper is a qualitative documentary analysis of six restorative justice reporting templates used by the Offices of the Police and Crime Commissioner in England for collecting restorative justice service data. Findings identify differences in the following areas: general presentation and format of templates; types of data recorded; areas of interest; definitions and use of descriptive language; methods and timing for counting data; and interpretation of restorative justice processes and outcomes. Conclusions highlight the need to standardise definitions and methods, outlining potential pitfalls when using data to draw further conclusions when equivalency is problematic, and further research avenues that could illuminate the use of data to evidence effectiveness, efficiency, impact and success.
]]>Laws doi: 10.3390/laws12020027
Authors: Igor Vuletic
The Croatian legislators introduced the concept of criminal liability for legal entities already in 2003 with the adoption of the Law on Criminal Liability of Legal Entities. Influenced by the writing of esteemed domestic scholars, and inspired by French law, the legislators opted for a system linking the liability of corporations to the liability of the responsible person. There were very few cases in practice during the first years of its application, and the situation changed after the first prominent indictment of this type against the ruling political party for economic crimes. Since then, the legislation has been amended several times and a significant body of jurisprudence has developed. In the first part of this paper, I will describe the chronology of the development and formation of the Croatian legislative model of corporate criminal liability. The second part will analyze 31 available final court judgments, which will be the basis for the conclusion about the issues in the practical application of the legislative model and, more generally, the phenomenon of criminal offenses committed by legal entities in Croatia. Based on this analysis, I will indicate the potential deficiencies of such a concept. In the context of future development, special attention will be given to the problem of economic crimes committed by AI corporate systems.
]]>Laws doi: 10.3390/laws12020026
Authors: Malcolm K. Smith
This article outlines and critiques the Australian jurisprudence that has addressed whether minors are able to lawfully consent to gender-affirming hormone treatment, with reference to the landmark decision of Gillick v West Norfolk and Wisbech Area Health Authority. Although the principle of Gillick competency is well recognised in law, the Australian legal developments that apply Gillick to decisions about the commencement of gender-affirming treatment, have taken the principle astray. The approach under Australian law has diverged down a path that does not align with the original reasoning in Gillick, nor its contemporary interpretation. I outline the reasoning in Gillick so that the foundational principles are considered before discussing how Gillick has been interpreted and applied in subsequent cases. I then provide an outline of the key legal developments in Australia relevant to minors and the commencement of hormone treatment for gender dysphoria. I undertake a critique of the Australian law in this field and conclude that there is a need for future judicial determination of how Gillick should be applied, not only in the cases relevant to gender dysphoria, but beyond, so that the position in respect of minors’ decision-making is clarified. This is vitally important because the current approach to this issue has potential implications beyond cases relevant to gender-affirming hormone treatment.
]]>Laws doi: 10.3390/laws12020025
Authors: Ondřej Frinta Dita Frintová
The article first focuses on the significance of the Cathedral of Sts. Vitus, Wenceslas, and Adalbert to the Czech religious, national, and state identity. The importance of the cathedral is given primarily by its location (Prague Castle), as well as by the thinking of its founder, Charles IV, about the foundations of Czech statehood. On the basis of these findings, the significance and symbolism of the cathedral for the present can be understood. Following this, the legal status of the cathedral, which was the subject of the so-called “cathedral dispute” in its modern history, is examined. The current legal status of the cathedral is the result of an amicable solution to this dispute and the subsequent application of the right of superficies in Czech private law.
]]>Laws doi: 10.3390/laws12020024
Authors: Yitzhak Benbaji
Kantian political philosophies stress that a state ought to be “neutral” (Rawls), “minimal” (Nozick), or “public” (Ripstein’s Kant), as part of its duty to respect its citizens’ freedom to pursue whatever ends these citizens find valuable. States are under duty merely to secure citizens’ independence from each other and from the state. In contrast, Kantian morality contends that individuals are subject to a duty to pursue certain “obligatory” ends, viz., ends that emerge from the intrinsic value of personhood and autonomy. In some cases, hindering one’s freedom is necessary for promoting these ends. This essay describes circumstances in which a legal right to interfere with one’s property and body in promoting obligatory ends is justified, even though such a right compromises states’ neutrality. This description sheds a new light on the relation between the optimal legal system (“Right”) and morality (“Virtue”) and between justice and truth.
]]>Laws doi: 10.3390/laws12020023
Authors: Peter Kwasniewski Izabella Parowicz Joseph Shaw Piotr Stec
The 2003 UNESCO Convention definition of intangible cultural heritage (ICH) covers religious practices and rites, as can be seen from normative descriptions and dozens of actual examples, many of which are Catholic religious traditions. The Traditional Latin Mass (TLM), practiced in one form or another for over 1500 years by an ever-increasing number of peoples and nations and in possession of a common stable set of rules, meets the UNESCO criteria for listing as ICH; in fact, it is arguably the best possible example. It is also a complicated one. After the Catholic Church’s liturgical reform in the 1960s and 1970s, new rites were introduced and the old rites were officially abandoned; nevertheless, a minority of clergy and laity continued to celebrate the TLM, and, over time, the legitimacy of their attachment to it was recognised by several popes, who also spoke regularly of the great value of the Church’s cultural and artistic patrimony and recommended that it remained joined with its religious origins. In contrast, the current pope, Francis, has recently become opposed to the continuation of the old rites. Be this as it may, it is quite possible that such a threatened but deeply appreciated international ICH as the TLM could be proposed for listing by several states that (unlike the Holy See) have signed the Convention for the Safeguarding of the Intangible Cultural Heritage, to give it a recognition appropriate to its immense historical and present-day cultural value.
]]>Laws doi: 10.3390/laws12020022
Authors: Wenjun Yan
Whether it is the Summer Olympics or the Winter Olympics, in order to resolve potential sports disputes, the Court of Arbitration for Sport (CAS) sets up a special ad hoc tribunal in the host city of the Olympic Games. Although CAS ad hoc rules have many similarities with ordinary procedures, they are different in terms of the legal basis, legal remedies, and certain procedural rules. During the Beijing 2022 Winter Olympics (Beijing 2022), the CAS Ad Hoc Division and the CAS Anti-Doping Division heard a total of seven cases. These cases involve issues such as provisional suspension of games, protection of minors, unreasonable delays in test results, cancellation of award ceremonies, and the timing of disputes. the CAS Ad Hoc Division decisions on the above issues can be regarded as the latest developments in the application of international sports arbitration rules.
]]>Laws doi: 10.3390/laws12020021
Authors: Eliona Gjecaj Anna Lawson Rannveig Traustadóttir James Gordon Rice
In this paper we aim to make a valuable contribution to the surprisingly limited body of research on access to justice for disabled women who have been subjected to violence. Using an interdisciplinary sociolegal approach, this paper carries out an empirical qualitative study of one Icelandic court case and draws on this to provide a critical analysis of access to justice issues for disabled women who have been subjected to gender-based violence. Much about this case suggests that it is a positive example of justice being accessed, and we identify a number of features of the case as particularly significant in this regard. We reflect on how these positive aspects of the case can inform initiatives to enhance access to justice for disabled women and highlight ways in which Icelandic justice processes could more firmly embed the international human rights standards set out in the UN Convention on the Rights of Persons with Disabilities.
]]>Laws doi: 10.3390/laws12020020
Authors: Pavel Kotlán Miroslav Ondrúš Alena Kozlová Igor Kotlán Pavel Petr Radim Kalabis
Criminal liability of legal entities has gained an inalienable place in the system of legal liability in most European jurisdictions, including the Czech Republic. Departing from the premise that it is a suitable supplement to the liability of a legal entity in the event of serious unlawful acts of natural persons from which the legal entity benefits, this article aims to characterize the position and role of this form of liability in the Czech legal system. Essentially, however, it seeks to determine under which circumstances it is possible for legal entities to be relieved of liability using an exculpatory clause. Based on a case study of the Czech Republic, it illustrates the added value of criminal compliance programs, which, if properly set up and implemented in practice and complemented by prevention, detection and response measures, play a decisive role in establishing such criminal exculpation. The article further finds that rules pertaining to ethical codes of conduct are in fact ‘elevated’ to the level of legal rules through compliance programs. Compliance, one of the components of Corporate Social Responsibility, thus becomes an expression of a legal obligation, i.e., the obligation to properly manage and control the corporation, which has important legal implications.
]]>Laws doi: 10.3390/laws12010019
Authors: Beata Gruszczyńska Marek Gruszczyński
This paper presents an attempt at establishing an association between crime levels and prison populations across European countries. We observe that the situation in Central and Eastern European countries differs distinctly from the rest of Europe. Building on this, we offer justification that is methodologically based on correlations and regressions of country incarceration rates on crime rates, with reference to governance indicators. Our cross-sectional analysis uses data on crime and prisoner rates by offence from Eurostat and SPACE for the year 2018. The paper’s empirical analysis is preceded by a discussion of the challenges faced when attempting to compare crime between countries in Europe. A review of research focused on relationships between incarceration and crime follows, with the emphasis on the deterrence effect and the prison paradox. Typically, this stream of research uses microdata covering a single country or limited to a smaller geographic area. International comparisons are rare, and are usually based on time series and trend analyses. The quantitative approach applied here is based on recognizing two clusters of countries: the Central and Eastern European (CEE) cluster and the Western European (WE) cluster. We show that the observation of higher prisoner rates and lower crime rates for CEE countries is confirmed with regression analysis. Our study encompasses four types of offences: assault, rape, robbery, and theft. The final section of the paper presents an attempt to incorporate Worldwide Governance Indicators into the analysis of the association between incarceration and crime rates. The results confirm that crime rates in WE countries are distinctly higher than in CEE countries, while incarceration rates in WE are significantly lower than in CEE countries. We think this is due to a higher percentage of crimes being reported and the greater accuracy of police statistics in WE countries. The prison population in each country is largely determined by its criminal and penal policies, which differ substantially between CEE and WE countries (e.g., in terms of frequency of imposing prison sentences and the length of imprisonment). These tendencies result in higher incarceration rates in CEE countries, despite lower crime rates when compared to WE countries.
]]>Laws doi: 10.3390/laws12010018
Authors: Jaime La Charite Elizabeth W. Tucker Julia Rosenberg Janine Young Nikita Gupta Katherine Hoops
Little is known of pediatric clinicians’ experiences with and approaches to taking care of immigrant children who have been in US custody. The objectives of this article are to (1) recognize the challenges facing pediatric clinicians in caring for immigrant children previously in custody, and (2) propose ways that healthcare and legal professionals can collaborate to optimize the wellbeing of formerly detained immigrant children. We identify themes by assessing answers to multiple choice and short responses from a national survey. These findings can help to identify current issues faced by both detained immigrant children and pediatric clinicians, and suggest approaches to addressing these issues.
]]>Laws doi: 10.3390/laws12010017
Authors: Mariela Olivares
This work explores the plight of child migrants in the United States, specifically examining the Trump administration’s use of family separation as a means of migration deterrence between 2017 and 2020. The perspective discusses the ongoing physical and psychological trauma that these separated families continue to face. I explore the Biden administration’s Interagency Task Force on Family Reunification that is working to identify and reunify those families still separated while providing them with immigration and other resources and mental health therapy. I conclude by noting the critical importance of ensuring that families are never again separated in the name of immigration enforcement.
]]>Laws doi: 10.3390/laws12010016
Authors: Bill Van Esveld
All children have the right to education without discrimination, but half of refugee children are out of school, far worse than global averages. Obstacles to education for refugee and migrant children include poverty and overstretched resources in host countries, and humanitarian donors and agencies have important roles and should ensure the right to education. However, policy barriers to education are key drivers of the education crisis facing displaced children. These policy barriers are internationally unlawful, but the children affected often lack standing under domestic law to demand a remedy. Countries with laws enshrining migrant, asylum-seeking, and refugee children’s rights to education and the European Union’s response to Ukrainian refugee learners provide examples that advocates can use to help raise the global floor for displaced children’s right to education. Advocates should press all countries to grant all children, including migrants and refugees, the enforceable right to education in domestic law.
]]>Laws doi: 10.3390/laws12010015
Authors: Shahrul Mizan Ismail Ali Ibrahim Alheji
Terrorism is a global threat that has caused immense suffering and loss of life. The United States’ Justice Against Sponsors of Terrorism Act (JASTA) is an important piece of legislation that allows victims of terrorism to hold foreign entities accountable for their actions. However, there is a need to evaluate the act from the perspective of Civil Procedure to determine its effectiveness in providing remedies for victims and addressing the challenges of holding foreign entities accountable. This paper’s analysis is based on the JASTA, for the evaluation of its position and application from a pre-litigation of Civil Procedure perspective. The two most significant parts of Civil Procedure in the segments of preliminary issues including Parties to the Suit and Cause of Action are examined to determine their susceptibility to being exploited in the process of executing the intention and purpose of the act concerning foreign entities, as highlighted in JASTA. Preliminary aspects must be considered before initiating a civil suit based on JASTA. This analysis is important in understanding the strength and weaknesses of JASTA in the civil suit and it involves a qualitative method of research. For the most part, the research methodology adopted will be pure legal research. Since the research will focus on JASTA, the regular method of analysis adopted is by referring to the sources and data discussing JASTA and procedural law. The findings of this work could be used to establish better laws from JASTA and provide the opportunity for the citizens who are victims to bring legal action against foreign states that are also responsible for their loss and suffering. Moreover, other countries faced with litigation initiated under JASTA could also benefit from the findings as they could be used in establishing better laws for countries that had also suffered greatly due to actions resulting from terrorism or the war against terrorism. Future research related to this topic is also recommended in this analysis.
]]>Laws doi: 10.3390/laws12010014
Authors: Natalia Lisina Aleksandra Ushakova Svetlana Ivanova Alexander Prosekov
Hunting is a complex type of nature management. In its process, objects of the animal world and the earth are used. Obviously, the relationship between hunters and other land users should be clearly regulated by legislation. The purpose of this work was to identify common and specific problems for different systems of interaction between hunters and land owners and to assess the possibility of spreading the existing experience of solving problems faced by the hunting sector to different countries. Three main models of the relationship between hunters and land users (direct interaction, cooperation, and division of rights) are considered. Each of the models performs its tasks and has its own degree of efficiency. The interaction organization model adopted in a country depends on the specifics of the conditions in which the hunting farm develops including economic, property, legal, social, and state aspects. It is established that the availability of hunting is best ensured within the framework of the cooperation model, the observation of the rights of owners—within the direct interaction model, the convenience of management within large territories of wild animal habitats—within the division of rights model. At the same time, it is incorrect to single out the best model by all criteria or to designate a model that is universally suitable for different conditions. In the hunting farms of Russia, the described problems of interactions are not related to the potential of the division of rights model as such, but to a lack of understanding that this particular model requires increased attention of the state. The proposals aimed at improving the practice of developing and applying models of relationships between hunters and land users are represented.
]]>Laws doi: 10.3390/laws12010013
Authors: Anna Kirichenko Ksenia Kirichenko Evgeniy Kirichenko
Effective use of renewable energy requires a system of energy legislation that meets modern challenges. Although, in large countries, climate and socioeconomic factors in different regions can significantly vary and can affect the regional legislation regulating renewable energy sources, careful reproduction of good practices and successful experiences of other regions are a good basis for the development of legislation. The comparative method of legal research was the main method used to achieve the objectives set in this study. Based on the results, a number of recommendations were developed to consolidate and expand the powers of regional regulators in the field of renewable energy, to include an economic assessment of the effectiveness of state programs, to use tax incentives for renewable energy projects, and to introduce restrictions on the use of petroleum products. Recommendations were also made to improve regional legislation on renewable energy sources in terms of legal techniques. Further development of this study would contribute to the improvement of regional legal regulation and would accelerate the transition to “green” energy.
]]>Laws doi: 10.3390/laws12010012
Authors: Laws Editorial Office Laws Editorial Office
High-quality academic publishing is built on rigorous peer review [...]
]]>Laws doi: 10.3390/laws12010011
Authors: Dovilė Pūraitė-Andrikienė
Although allowing justices of constitutional courts to publish their separate opinions has become a clear trend in Europe, until an amendment to the Law on the Constitutional Court in 2008, the justices of the Constitutional Court of the Republic of Lithuania did not have this possibility. However, after the introduction of this institution in Lithuania, criticism was voiced by the public regarding its legal regulation. Therefore, this article examines the legal regulation governing the institution of a separate opinion of a justice of the Constitutional Court, as well as the use of this institution in Lithuania. The article seeks to reveal the shortcomings of this regulation, as well as to provide proposals for its improvement. The issues in question are examined in the context of the legal framework governing the institution of a separate opinion in other European Union countries (with a particular focus on Eastern and Central European countries). In order to provide a basis for this research, the article also examines the institution of a separate opinion in the context of the principle of the secrecy of the deliberation room and the secrecy of voting results in the decision-making process of constitutional justice institutions.
]]>Laws doi: 10.3390/laws12010010
Authors: Dominique Moritz
Children’s decision-making is complex. There are many factors that contribute to children’s decisional capacity including cognitive reasoning, developmental maturity, upbringing and circumstances. For healthcare decisions, Australian law acknowledges children’s autonomy, and permits mature children to consent to beneficial healthcare. Yet, it also protects them from making life-changing decisions that could contravene their best interests. The criminal law approaches to children’s decision-making in Australia’s jurisdictions involves holding older children fully responsible for their decision-making, regardless of circumstances or maturity. The two approaches conflict because health law offers a protective mechanism for children yet criminal law imposes a punitive approach to children’s decision-making. This article considers whether the dichotomous approaches for children’s capacity assessments in Australian law can be reconciled.
]]>Laws doi: 10.3390/laws12010009
Authors: Robyn L. Holder Dirkje Gerryts Francisco Garcia Martine Powell
Investigative interviewing of children who report sexual victimisation focuses on helping children tell in their own words what happened. Children may say other things important to them such as their justice goals. We conducted the first research into this possibility in an exploratory analysis of 300 transcripts of actual interviews with child complainants aged 3 to 15 years. Building on an earlier study involving adults, we explored what goals children may articulate, when in the interview process their goals are relayed and in response to which interviewer prompts. Our analysis revealed that most children did articulate one or more justice goals during these interviews, especially their desire for acknowledgement of the victimisation and its wrongfulness. Children articulated their justice goals spontaneously and largely without any direct prompting by the police officer. These findings suggest that there is more that institutions [and researchers] can learn from carefully listening to children and understanding them as agents claiming justice.
]]>Laws doi: 10.3390/laws12010008
Authors: Budi Agus Riswandi Abdurrahman Alfaqiih Lucky Suryo Wicaksono
Equity crowdfunding is a form of alternative financing for MSMEs in Indonesia. However, the provision of equity crowdfunding still has various issues that boil down to the absence of guarantees of legal certainty for the parties. This, of course, can hinder the development of equity crowdfunding itself in the MSME financing scheme. For this reason, the review of this is carried out based on normative legal research, where it examines various applicable legal provisions in regulating equity crowdfunding. Studies are also based on statute, comparative and conceptual approaches. The result is that, first, the arrangement regarding equity crowdfunding has not provided guarantees of legal certainty for the parties; second, many countries develop equity crowdfunding regulatory frameworks that are oriented to guarantee legal certainty for the parties; and third, the design of equity crowdfunding arrangements that provide guarantees of legal certainty to the parties can be made in the form of co-regulation arrangements.
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