rss_2.0Sciendo RSS Feed for International and Comparative Law Reviewhttps://sciendo.com/journal/ICLRhttps://www.sciendo.comhttps://sciendo-parsed.s3.eu-central-1.amazonaws.com/6471f200215d2f6c89db6291/cover-image.jpghttps://sciendo.com/journal/ICLR140216https://sciendo.com/article/10.2478/iclr-2023-0014<abstract> <title style='display:none'>Summary</title> <p>Africa is home to millions of displaced persons–IDPs and refugees–a trend that has its genesis in the pre-independence armed struggles and is currently perpetuated by internal conflicts that plague most parts of the continent. Although the challenge has been a permanent phenomenon since the days of the Organisation of African Unity, the continental organization, now the African Union, has failed to craft a response strategy that addresses both forced displacement and the conundrum of protracted refugee situations. This article argues for a policy reformulation that situates the problem of displacement within the core of Africa’s peace and security framework (the APSA). It posits that this approach addresses both causes of forced displacement and the welfare of the displaced. At a policy level, the approach permeates good governance, peace, security and economic strategies of the Union.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00142024-02-05T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0021<abstract> <title style='display:none'>Summary</title> <p>The COVID-19 pandemic significantly disturbed people’s lives all over the world for many months and it has had a weighty impact on all spheres of life, both in terms of the private sphere of individuals and in relation to the functioning of state institutions, including courts. To protect public health and limit the number of infected citizens, it became necessary for state authorities to introduce emergency measures, some of which resulted in far-reaching restrictions on human rights – and the right to a fair trial was no exception. This article aims at presenting the way in which the Polish judiciary functioned during the pandemic, as well as the main problems related to exercising the right to a fair trial during the COVID-19 pandemic, including a lack of openness of court proceedings, remote hearings and the removal of the collegiality of judicial adjudication in most civil cases.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00212024-02-05T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0015<abstract> <title style='display:none'>Summary</title> <p>Human rights promotion and protection is no more the issue of States only. Other non-states actors are directly or indirectly involved in this area. This is even more right for so called rights of second or third generation where States´ activities are interconnected with economic and social stakeholders. Especially, the right to food and right to environment are at stake when speaking about business activities of transnational corporations. The present article discusses the role transnational corporations play in the implementation of right to food and right to environment. Authors first addresses basic interconnections between TNCs´ business activities and right to food and right to environment (1); second they theoretically approach TNCs´ obligation to respect human rights (2), before developing general issues of right to food and right to healthy environment (3). Finally, they pinpoint scenarios of TNCs as duty-bearers with respect to right to food and right to environment.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00152024-02-05T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0017<abstract> <title style='display:none'>Summary</title> <p>The article focuses on contemporary challenges concerning the domestic prosecution of the crime of aggression. These challenges have one common feature, that they deal with the scope of jurisdiction over crime of aggression at a domestic level. The author analyses applicability of jurisdictional immunity (based on the principle <italic>pars in parem non habet iurisdictionem</italic>), immunity of State officials, both personal (<italic>ratione personae</italic>) and material (<italic>ratione materiae</italic>), and finally also the availability of universal jurisdiction in relation to the crime of aggression. The contribution is built on the presumption that even though each category of crimes under international law has its unique characteristics, they all share some common definitional features, reflected among else in the famous Cassese’s definition of crime under international law. The author argues that all crimes under international law are to be treated uniformly as much as possible, and therefore – relatedly – there should not be any unsubstantiated differences in standing of the crime of aggression comparing to standing of remaining categories of crimes under international law.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00172024-02-05T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0023<abstract> <title style='display:none'>Summary</title> <p>State symbols can be considered an important element of the existence of every independent state. State symbols perform important functions both internally and externally (in relation to other countries and international communities). State symbols developed and changed along with the development of the given state and society. The article deals with the development of state symbols in five Central European countries, namely the Czech Republic, Slovakia, Poland, Hungary and Slovenia. The authors analyze the individual state symbols of these states, their development and meaning, at the same time pointing out differences, but also similarities within these European states and their often common history.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00232024-02-05T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0016<abstract> <title style='display:none'>Summary</title> <p>The paper is devoted to the analysis of countermeasures in the context of cyber operations. This circumstance precluding wrongfulness is one of the tools that states can use in response to (not only) malign cyber operations that fulfil the characteristics of an internationally wrongful act. The paper examines the various material and procedural conditions of countermeasures and the specifics of their implementation in cyberspace. The second part of the paper then discusses contentious issues related to countermeasures, namely the relationship between countermeasures and the principle of due diligence, the possibility of implementing forcible countermeasures, and finally the current status of collective countermeasures under customary international law.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00162024-02-05T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0019<abstract> <title style='display:none'>Summary</title> <p>The article is devoted to the analysis of main social rights of internally displaced persons and their realisation after Russia’s full-scale invasion in Ukraine. The current Ukrainian national legislation on the IDPs social protection has been analysed with the specific focus on social payments and housing through the Ukraine’s ability to guarantee all basic social rights to IDPs and via the lens of new challenges and problems that appeared after the beginning of the war. The special attention was also drawn to the importance of sufficient international support and assistance for IDPs’ social protection in Ukraine.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00192024-02-05T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0013<abstract> <title style='display:none'>Summary</title> <p>Mass migration, including forced mass migration, in the Americas tends to conjure images of illegal immigration, most frequently from Latin America to the United States. The reality of forced mass migration in the Americas is, however, quite different, complex and multifaceted. Set against the backdrop of political turmoil and increased threats of environmental changes, forced mass migration in the Americas is highly nuanced and requires a flexible legal and organizational framework. This requirement has been consistently met through a series of international and regional treaties and norms as well as through the flexibility of regional organizations in responding to new or dramatically increasing forced mass migration patterns. This paper outlines these responses and trends through the lens of the mass migration from Venezuela. It asserts that how international and regional law, organizations, and States have responded to this crisis presents an example of the ways that legal responses to forced mass migrations have been implemented in the Americas.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00132024-02-05T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0012<abstract> <title style='display:none'>Summary</title> <p>The focus of this article is on how forced migration is regulated in the Asia Pacific region. While each new case of mass migration is widely characterised as an unprecedented crisis, history shows that much about these ‘crises’ was perfectly predictable. Resort to what Charlesworth identifies as ‘crisis mode’ short-circuits historical perspectives and obscures structural injustice. If we step back from the language of crisis, we can turn our focus to what the legal and institutional contexts in which forced migration occurs and that make it such a devastating experience.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00122024-02-05T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0024<abstract> <title style='display:none'>Summary</title> <p>The article deals with the issue of digitalization of the judiciary and civil court proceedings. It clearly divides digitalization into institutional digitalization related to the judiciary as a whole and procedural digitalization, i.e., digitalisation within the framework of court proceedings. In its introduction, it focuses on institutional forms such as electronic systems and registers, in the second part it defines specific forms of digitalization within the current regulation of civil court proceedings, i.e., service via the public data network, electronic case management, recording of hearings, use of video-conferencing and finally also decision-making in the form of electronic payment orders. The paper highlights the problematic aspects of digitalization.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00242024-02-05T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0018<abstract> <title style='display:none'>Summary</title> <p>The conflict between Russia and Ukraine has been widely recognized as one of the most significant threats to peace and security in Europe since World War II. The large-scale proliferation of unmanned aerial vehicles in this conflict reveals how drones and autonomous weapons systems are transforming warfare. At the same time, they are raising concerns about the way conflicts are being fought, and how international peace and security is being secured through international humanitarian law. This article therefore provides a deep empirical analysis of the types of drones being deployed in the war between Russia and Ukraine, and their specific contributions to the conflict. The study provides several charts that indicate the make of the drones being used, their type, and the function of each drone employed by both parties to the conflict. The charts highlight various parameters such as maximum speed, endurance, and altitude capabilities. The empirical part of the article then feeds into the second part of the article which delves into the question of whether the drones being used there meet the requirements of the principles of distinction and proportionality as mandated in international humanitarian law. It argues that there seems to be evidence of indiscriminate attacks on civilians and civilian infrastructure, and investigations need to be carried out to determine whether there should be accountability. The article argues that the artificial intelligence being used in drones make them distinct from ordinary weapons as it is their autonomy to make decisions which ensures that accountability for IHL violations is problematic. The article argues that IHL ought to be reformed to deal with these new warfare capabilities.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00182024-02-05T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0025<abstract> <title style='display:none'>Summary</title> <p>In Czech private international law, the applicable law for property relations of spouses and registered partners is regulated differently. The rapid development in the legal regulation of same-sex marriages causes a division in the jurisdictions among the EU Member States as well as a non-uniform approach in the norms of private international law. Given that same-sex marriage is not legalized in the Czech Republic, a problem of classification arises in Czech private international law. The paper will focus on the question of classification of the property regime of same-sex couples who have entered into marriage in one of the states that admit such unions, and the solution to this problem of classification will be examined both at the national and EU levels.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00252024-02-05T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0022<abstract> <title style='display:none'>Summary</title> <p>The exceptional situation surrounding the outbreak of the COVID-19 pandemic directly affected the functioning of many liberal democracies. To limit the negative effects of the pandemic, numerous restrictions on fundamental rights and freedoms were introduced. The main objective of this article is to analyse Polish legal regulations regarding the possibility of limiting constitutional rights, in particular the freedom of assembly, during and outside states of emergency. The analysis focuses on the violation of the essence of the freedom of assembly in Poland during the COVID-19 pandemic and determines whether it could have been avoided. This is important because such a situation could arise again, and countries will be forced to learn from the experience of the COVID-19 pandemic.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00222024-02-05T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0020<abstract> <title style='display:none'>Summary</title> <p>The conformity of the European Union’s Own Resources Decision with the constitution was brought before the authentic interpreters of the constitutions in Finland and Germany. This paper tends to examine the so-called ‘identity review’ engaged by these interpreters regarding procedural guarantees. In Finland, the competence-related debate between the Constitutional Law Committee and the Grand Committee and their interference with the EU-law as well as the subsequent Finnish legislative process raised some serious concerns. The relevant decisions of the German Federal Constitutional Court also highlight some disadvantages of decision-making in a crisis situation, for instance, the lack of reasoning or the failure to request a preliminary ruling from the Court of Justice of the European Union. In this paper, we aim to highlight the promising and the less favourable aspects of the (quasi-)constitutional courts’ procedure.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00202024-02-05T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0005<abstract> <title style='display:none'>Summary</title> <p>On 16 March 2022, the Russian Federation’s membership in the Council of Europe was terminated with immediate effect on account of its aggression against Ukraine. The purpose of this article is twofold. First, to analyze the content of the suspension and expulsion clause in the Council of Europe Statute (Article 8), to put it into context with three other relevant provisions, namely the clause on Member States’ obligations (Article 3), the withdrawal clause (Article 7) and the clause on suspension due to the non-payment of compulsory contributions (Article 9). Second, to argue that the way the Russian Federation was expelled as well as the consequences of its expulsion, raise several legal and procedural issues. Among them, whether it should have been given the opportunity to justify the use of force against Ukraine; whether, as stipulated in Article 8, it should have been requested to voluntarily withdraw before having its membership terminated; which were the effects of the Russian Federation’s announcement that it will withdraw, which was made before it was expelled; and whether the decision that it remains a party to the European Convention on Human Rights until mid-September 2022 was legally sound. The article will also argue that the rule of law, one of the Council of Europe’s cornerstones, has a wider application than a principle to be respected by Member States and forms part of its internal legal order.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00052023-10-13T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0010<abstract> <title style='display:none'>Summary</title> <p>The large-scale use of rape against women and the murder of men by the Russian armed forces has been widely documented since it first invaded Ukraine in February 2022. Consequently, many Ukrainian families have been affected both physically and mentally by the use of sexual and gender-based violence as a method of war. This paper presents a detailed analysis of these ‘classical’ sexual and gender-based violence cases from the perspective of grave breaches of international humanitarian law. According to the Rome Statute of the International Criminal Court and case law, these cases constitute war crimes, crimes against humanity or genocide. Investigations have already commenced into cases of sexual and gender-based violence on both the national and international level. The first Russian soldier formally accused of raping a female (wife) and killing her husband, is already standing trial before the Ukrainian courts. The International Criminal Court, within the <italic>ad hoc</italic> jurisdiction given by Ukrainian authorities, as well as specially established mechanisms and law enforcement agencies of foreign states; have also begun investigations into cases of ‘classical’ sexual and gender-based violence on the international level.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00102023-10-13T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0006<abstract> <title style='display:none'>Summary</title> <p>The natural environment has long been the silent casualty of war according to the <italic>Guidelines on the Protection of the Natural Environment in Armed Conflict</italic> issued by the International Committee of the Red Cross (ICRC). As presented by the ICRC, International Humanitarian Law (IHL) does not reflect the reality of warfare today. Hence, this article builds on the ICRC recommendations with the aim of underlining changes that are essential for protecting the environment during war. Drawing on the experiences from the past and applying them to the current conflict in Ukraine, I propose four broader categories of change. First and foremost, the consensus within the international community is viewed as the basis for any further developments. Thus far politicization has prevented agreement, yet the events since February 24^th, 2022, show that there are lessons to be learned. Compromise on the standards and implementation is thus called for, particularly when it comes to the conditions severe, long-term, and widespread damage. From this point of view, international condemnation of environmentally harmful practices in warfare is limited by the conditions’ disproportionately broad scope which arguably needs to be narrowed. Secondly, I suggest that mainstreaming environmental protection during armed conflict is of great importance. Such mainstreaming might be most relevant among military personnel during non-international armed conflicts because of the individualistic approach of national military manuals. Nonetheless, mainstreaming could prove appropriate in international armed conflicts as well, given the limited number of rules relating to the environment in international customary and treaty law. Thirdly, the interconnectedness between energy and environment, and the dangers associated with the destruction of energy infrastructure must be made very clear. Bombings or destabilization of nuclear power plants might be even more catastrophic than the burning and spills of oil wells. The last point of this brief is the need for greater accountability for environmental destruction incurred during armed conflict, especially from a systematic point of view. From this standpoint, the past events such as the establishment of the United Nations Compensation Committee for Kuwait, which inter alia addressed the environmental impacts of the conflict, or the ICC decision to focus more on environmental issues could provide inspiration in relation to Ukraine. Besides, the situation in Ukraine could become a potential landmark case. Consequently, the aim of the four propositions presented here is to define the most pressing limitations of IHL related to the natural environment, and to outline potential recommendations for policy makers who address the crisis in Ukraine as well as any further conflicts to come.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00062023-10-13T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0009<abstract> <title style='display:none'>Summary</title> <p>The OSCE Moscow Mechanism is one of the generally little-known mechanisms, established in 1991 to facilitate resolution of a particular question or problem relating to the human dimension of the OSCE. This article aims to highlight its role and significant potential to identify relevant patterns of behaviour supported by collected information and evidence on violations of international humanitarian and human rights law in situations that need urgent attention by the international community. Its flexibility and short reactionary time serves to promptly document developments and make them publicly available to inform further actions. At the same time, the mechanism in practice encounters a number of challenges, such as lack of cooperation from the States “under investigation”, very short missions’ deadlines for submission of their findings and rather limited (technical) support by the designated OSCE Institution, the ODIHR. This article discusses the mechanism as such and then looks into the two of its reports from 2022 concerning the situation following the Russian invasion of Ukraine and their impact within the OSCE and beyond. It provides some general conclusions and suggestions on possible improvements of the mechanism going forward.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00092023-10-13T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0002<abstract> <title style='display:none'>Summary</title> <p>Since the establishment of the International Criminal Court (ICC) almost two decades ago, the crime of aggression has not been tested. The Russian invasion of Ukraine seems to provide a fitting opportunity. However, the ICC lacks jurisdiction over the crime of aggression in the current Russian/Ukrainian war. Nevertheless, 24 February 2022 marked the beginning of a renewed attack, as Ukraine witnessed unimaginable proportions of human rights violations, deaths, sufferings, and displacements due to the Russian invasion. While it is incontrovertible that the crime of aggression has been committed by President Vladimir Putin of Russia against Ukraine, and the ICC has begun the investigation of crimes against humanity and war crimes, jurisdictional questions looms. The ICC is empowered to investigate, prosecute, and punish individuals for international crimes, close impunity gaps, and ensure accountability for the ongoing heinous crimes being committed in Ukraine. How can justice be served specifically to Ukrainian victims and generally to the international community for the atrocities being committed and for the crime of aggression? Since the ICC lacks jurisdiction, would the setting up of a special tribunal or hybrid court be better to deal with the situation? How would such special tribunal deal with the issues of immunity and the practicality of investigations and prosecution? This paper discusses these questions and argues that beyond the referrals to the ICC made by over forty states, it may be imperative for the referring states to utilise the universal jurisdiction principle to investigate and prosecute the crime of aggression.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00022023-10-13T00:00:00.000+00:00https://sciendo.com/article/10.2478/iclr-2023-0001<abstract> <title style='display:none'>Summary</title> <p>This commentary discusses the decision taken by the Prosecutor of the International Criminal Court (ICC) to open an investigation into the situation in Ukraine on the basis of referrals by a number of state parties to the Rome Statute. In particular, it is interested in the prior decision that the Prosecutor had to make and actually made for that move to be procedurally possible. Indeed, the Prosecutor had to renounce to his steps towards an investigation <italic>proprio motu,</italic> i.e. on his own initiative. The most important of these steps was the request of judicial authorisation by the ICC Pre-trial Chamber. This commentary argues that for that reason, the Prosecutor’s decision was ill-advised, despite being in conformity with the Rome Statute. It argues that in that specific situation where neither Ukraine nor the Russian Federation are parties to the Rome Statute and where the Security Council has not and could not play its Rome Statute role, judicial oversight was an important – arguably the most important – legitimising factor for the investigation. The Office of the Prosecutor (OTP) could therefore not have neglected it. Going into the details of the starting investigation, the commentary also weighs the <italic>pros</italic> and <italic>cons</italic> of the Prosecutor’s decision. In other words, it balances what was actually lost and what was supposed to be gained by way of that change of procedural paths to investigation.</p> </abstract>ARTICLEtruehttps://sciendo.com/article/10.2478/iclr-2023-00012023-10-13T00:00:00.000+00:00en-us-1