rss_2.0International and Comparative Law Review FeedSciendo RSS Feed for International and Comparative Law Review and Comparative Law Review 's Cover Ship as an Extension of Flag State Territory and an Entity with Human Attributes – Is it Time to Jettison These Legal Fictions?<abstract> <title style='display:none'>Summary</title> <p>This article questions the need for the use of two legal fictions in modern maritime law: that a vessel/ship can in certain instances be treated as an extension of flag state territory; that a vessel/ship is an entity with human attributes. The article addresses the first ‘fiction’ mainly in the context of applicable international law as well as English law; the second ‘fiction’ is addressed mainly in the context of English law although selective reference is made to both primary and secondary legal sources from the United States. The article concludes that the two fictions are only of limited value in modern maritime law.</p> </abstract>ARTICLE2022-03-29T00:00:00.000+00:00Asia and the ICC: The Development of International Criminal Law in a World Changing Order<abstract> <title style='display:none'>Summary</title> <p>Although Asia houses over 50 percent of world’s population, it is under-represented in the ICC. This underrepresentation is due to rationales both legal and political in nature. While the Asian nations do lack enthusiasm towards ratifying the Rome Statute, there could be tangible benefits to becoming a part of the ICC. This could help in the ongoing development of international law in Asia as well as greater recognition of human rights, international justice and accountability, thus, further emphasizing the importance of the rule of law in the continent. The benefits of ratifying the Rome Statute outweigh any disadvantages, real or perceived, and thus, domestic steps need to be undertaken to lead to eventual ratification. This paper will trace the histories of International Criminal Law and analyse the Asian participation in its discourse while further exploring the reasons for the disinclination of the Asian nations to join the ICC.</p> </abstract>ARTICLE2022-03-29T00:00:00.000+00:00National Identity and Judicial Minimalism: Exploring The Cjeu’s Restraint in Adjudicating National Identity<abstract> <title style='display:none'>Summary</title> <p>Even thought the Court of Justice of the EU has already decided a number of cases dealing with national identity, judicial clarification of the concept is still missing. On the contrary, the reasoning employed in the Court’s case-law leaves a lot to be desired. This article explores the reasons that lead the Court to underarticulating its decisions in identity cases. I argue that the Court’s minimalism in adjudicating national identity is rooted not only in reasons driving the Court’s general minimalist approach, but also in considerations specific to identity cases. These reasons include the national identity’s inherent potential to hinder European integration, the sensitivity of determining the content of Member States’ national identities by a supranational court, the attempts to obscure the Court’s receptivity of identity arguments, and the potential to widen the applicability of its identity rulings.</p> </abstract>ARTICLE2022-03-29T00:00:00.000+00:00Dualistic Data Property Right: Solution for Controllership of Data in the European Union?<abstract> <title style='display:none'>Summary</title> <p>Personal data are new assets in the digital economy. While personal data are protected by GDPR in the European Union, its economic value is not protected. Unless, the economic value of personal data is addressed in legal systems of Member states, the interests of people are not fully covered. The article aims to fill the vacuum by introducing new property right to data, the dualistic data property rights. The dualistic data property right is conceptually inspired by Copyright. The article proposes the character and content of the right that is in line with existing legal system and GDPR as well. The authors embark on analyses of all aspect of the dualistic property right and its benefits for the digital economy.</p> </abstract>ARTICLE2022-03-29T00:00:00.000+00:00A New Regime on Protection of Public Procurement Against Foreign Subsidies Distorting the Internal Market: Mighty Paladin or Giant on the Feet of Clay?<abstract> <title style='display:none'>Summary</title> <p>As a response to possible distortive effects of foreign subsidies, which are not covered by the current rules of the World Trade Organization and primary and secondary law of the EU, on 6th May 2021 the European Commission introduced a new regime against foreign subsidies by introducing the proposal of the Regulation on foreign subsidies distorting the internal market. This new proposal includes three so-called modules: a set of measures of general application that governs the <italic>ex officio</italic> review of subsidies (Module 1), specific rules on concentrations (Module 2) and specific rules in public procurement in the EU (Module 3). The paper will focus on some of the features of Module 3 and assess the context, feasibility, and possible consequences for the course of public procurement in the EU covered by the public procurement directives</p> </abstract>ARTICLE2022-03-29T00:00:00.000+00:00Military Necessity and Cultural Heritage Protection in Laws of War: Historical Overview<abstract> <title style='display:none'>Summary</title> <p>The article examines the development of the concept of military necessity in relation to cultural property. Starting from 18th century and Emmerich de Vattel it continues to codifications of International Humanitarian Law in 19th century and finally focuses on 1954 Hague Convention and its 1999 Second Protocol. The article underlines the most significant trends in the development and aims to illustrate increasing respect for cultural property during the conflict. In its final section it presents more current issues related to cultural property protection and armed conflict: inclusion of human rights protection and matter of dual-use objects. Both questions are introduced in decision of the International Criminal Tribunal for the Former Yugoslavia in <italic>Prlić et al.</italic> case that investigates destruction of Stari Most in Mostar. The decision shows that some new elements have to be considered in assessment of military necessity related to cultural property.</p> </abstract>ARTICLE2022-03-29T00:00:00.000+00:00The Interrelation Between the EU Charter of Fundamental Rights and the Schengen Agreement: The Ne Bis in Idem Example Through the CJEU Case Law<abstract> <title style='display:none'>Summary</title> <p>The ne bis in idem principle is of fundamental nature to the legal order of every democratic society. The concept of this principle refers to the prohibition, on behalf of State authorities, on prosecuting the same person more than once for the same conduct. In two preliminary ruling procedures, the national courts set questions to the Court of Justice regarding the compatibility of articles 54 and 55 CISA respectively with article 50 of the EU Charter of Fundamental Rights. In the first case, the Court ruled that article 54 CISA is compatible with article 50 of the Charter whilst, in the second, the Court, essentially, found unnecessary to reply to the question. The aim of this paper is to offer a review on the impact of these two judgments in the formulation of article 50 of the EU Charter and subsequently, propose an alternative approach on the interpretation of this provision, in line with the core of the ne bis in idem principle, in order to underline the significant role of the Charter in the future of the Union.</p> </abstract>ARTICLE2022-03-29T00:00:00.000+00:00Integration Model of the European Economic Area: Symmetric or Asymmetric?<abstract> <title style='display:none'>Summary</title> <p>Research in this article is focused on the analysis of the character of the European Economic Area. It presents a common market for thirty states from European Union (27) and European Free Trade Association (3) established by the Agreement on the European Economic Area. When regarding the size, EU is the bigger player in this relationship compared to EFTA States. On the other side, regarding the principles of international law, parties are equal to each other. These initial thoughts raised author´s interest to find out, whether this economic integration model is symmetric or asymmetric in its nature, regarding its contracting parties. Article provides an answer to this question as well as an insight on the consequences of such regime.</p> </abstract>ARTICLE2022-03-29T00:00:00.000+00:00A Migrants’ Right to Respect for Family Life – The Problematic Developments of the European Court of Human Right’s Case Law<abstract> <title style='display:none'>Summary</title> <p>This paper analyses the inconsistency in the case law of the European Court of human Rights when applying Article 8, the right to respect for family life, of the European Convention of Human Rights in the immigration context. Even though Article 8 has permeated the area of immigration policy, critics claim that the case law has shown a number of extremely problematic developments. The main question of the paper is how the Court can be more consistent when determining a States’ compliance with Article 8. It examines whether the use of the same compliance test for all immigration cases could offer a more structured framework. The paper also explores additional adjustments in the application of Article 8 in order to improve the current development of the inconsistent case law.</p> </abstract>ARTICLE2022-03-29T00:00:00.000+00:00Critical Views on the Right to Be Forgotten After the Entry Into Force of the GDPR: Is it Able to Effectively Ensure Our Privacy?<abstract> <title style='display:none'>Summary</title> <p>This scientific paper is devoted to the critical analysis of the right to be forgotten after the entry into force of the GDPR, including the analysis of the existing case-law of the Court of Justice of the European Union (hereinafter – the CJEU) on the above right, as well as the legislative experience of the EU member States. The main research questions of this paper are as follows: Does the right to be forgotten effectively protects human privacy? What are the main shortcomings of the right to be forgotten in law enforcement practice? How can such shortcomings be corrected in order to improve the effectiveness and practicality of the right to be forgotten? The authors try to find reasonable solutions to the practical issues related to the realization of the right to be forgotten and offer their vision of improving the effectiveness of this right in the European legal practice.</p> </abstract>ARTICLE2022-03-29T00:00:00.000+00:00Similarities and Differences Between the Albanian and Italian Succession Law<abstract> <title style='display:none'>Summary</title> <p>In 1994, Albania codified the current civil code, harmonizing the national legislation with the democratic values of the Western European Countries. This paper fills the gap in the national and international scientific literature since there is no scientific contribution that examines the Albanian law of succession showing the similarities and differences between the Albanian and the Italian civil codes. This is fundamental because according to Article 33 Albanian Private International Law (Albanian Law no. 10 428 of June 2011), which governs cross-border succession law, in the case of immovable goods, the rule of <italic>lex rei sitae</italic> has been codified. Thus, in the case of immovable goods, the Albanian succession law will be applied to them. In the conclusion, this research demonstrates that the Albanian Law of Succession of 1994 is different in many ways from the rules established in the Italian Civil Code of 1942.</p> </abstract>ARTICLE2022-03-29T00:00:00.000+00:00Access to Covid-19 Vaccine: Patents vs. People?<abstract> <title style='display:none'>Summary</title> <p>The article is looking into the issue of global equitable access to Covid-19 vaccines from the perspective of intellectual property rights, in particular patents. The discussed topics include instruments that could potentially facilitate access to patent protected health technologies (Covid-19 vaccines). Some of them are non-voluntary in nature, like the compulsory licenses in accordance with the TRIPS Agreement and others rely on the voluntary participation of the pharmaceutical industry, such as the C-TAP and the Medicines Patent Pool. The article also explores the controversial initiative regarding an “intellectual property waiver” proposed by a number of WTO members.</p> </abstract>ARTICLE2021-08-19T00:00:00.000+00:00About John Austin’s Analytical Jurisprudence: The Empirical-Rationalist Legal Positivism<abstract> <title style='display:none'>Summary</title> <p>This article deals with analytical jurisprudence topics presented in John Austin’s work, his predecessors, and its influence on the contemporary theory of law. The article analyses his analytical method, understanding of what the method implies, and its application in understanding law as a social phenomenon. Not only does the article analyse the law phenomenon, but it also presents his views on similar phenomena in law, such as international and constitutional law, the phenomenon of sovereignty and a sovereign, and the principle of general utility as one of the moral principles. His theory of law was one of the most significant theoretical approaches in England of the 19th century, and also constituted the baseline for new conceptions and the basis of critical analyses of later positive law theories. Moreover, his work provides a solid ground for explanations of individual branches of law, especially criminal law. Finally, the article also presents a critical analysis of his approach, useful and important findings, and the perspectives for further development of the theory of law, especially in the domain of his analytical, empirically oriented and descriptive method.</p> </abstract>ARTICLE2021-08-19T00:00:00.000+00:00The Concept of Child and its Legal Synonyms In Polish Criminal Law<abstract> <title style='display:none'>Summary</title> <p>Criminal law, which uses the strictest measures at the disposal of the legislator, requires particular caution in the interpretation of the concepts appearing in the repressive law. The concept of a child in criminal law cause many problems of interpretation, as it appears in many legal acts in a different sense. The publication is devoted to presenting the concept of a child in various legal acts and reflecting on the different meanings of the descriptions of the child made by the legislator and the legitimacy of the differentiations made by him. The question arises as to whether the creation of many different concepts describing a child is justified.</p> </abstract>ARTICLE2021-08-19T00:00:00.000+00:00Binding or Non-Binding: Analysing the Nature of the Asean Agreements<abstract> <title style='display:none'>Summary</title> <p>ASEAN has gradually attempted to assert itself as a diplomatic force to reckon with. However, over the recent past, it’s ability to deal with regional issues and situations has come under scrutiny. This paper argues that the reason behind such lack of clear decision making arises from the large presence of Soft Law nomenclature in ASEAN agreements, resulting in the lack of any Hard Law obligations on these nations. The paper attempts to highlight the lack of clarity in the nomenclature used in ASEAN agreements, the problems that arise from the same, and the possible reasoning behind the usage of such nomenclature. In conclusion, the paper provides a few solutions and recommendations that could be adopted by the ASEAN community of nations to establish themselves as an economic community.</p> </abstract>ARTICLE2021-08-19T00:00:00.000+00:00Istanbul Convention, Honour Killings and Turkey’s Experience<abstract> <title style='display:none'>Summary</title> <p>The problem of domestic violence against women (DVAW) is a global concern and pivotal point which is still waiting for necessary radical measures to prevent it. Honour related violence is a phenomenon and special form of domestic violence against women that affects every country. For decades, honour killings have been a topical legal issue in Turkey. This article highlights the positive changes of Turkey’s legislation after ratification of the Istanbul Convention, which provides legal protection and prevention measures to help women and their families and shows how important it was for Turkey to implement the Convention in order to prevent these crimes. The authors shed light to the point that Turkey has done much to implement the Istanbul Convention, but male-dominated mentality, still hampers the effective prevention of gender-based violence. Article analyses the importance of the Istanbul Convention in Turkey through the “Unjust Provocation” concept and Law No. 6284 which was adopted by Turkey after ratification of the Convention.</p> </abstract>ARTICLE2021-08-19T00:00:00.000+00:00Destroying Disability: Expanding Application of the Genocide Convention<abstract> <title style='display:none'>Summary</title> <p>Disability is not a protected class under the Genocide Convention, even though disabled people across the world frequently face egregious human rights violations. Many of those practices should be considered genocide because they meet the criteria listed in the definition. In order to amount to genocide, an action must be committed with the intent to destroy a group, in whole or in part, by killing, causing serious harm, inflicting conditions of life calculated to bring about destruction of the group, prevent births, or forcibly transfer children out of the group. Disabled people have been subjected to all these actions. By refusing to grant this group status as a protected class, the international community has allowed acts of genocide to continue into the twenty first century. To prevent future genocides against this group, and advance disability rights on a global scale, disabled people need the protections provided in the Genocide Convention.</p> </abstract>ARTICLE2021-08-19T00:00:00.000+00:00Caractéristiques Et Conséquences Des Dispositions Constitutionnelles Relatives à La Responsabilité Budgétaire En Slovaquie<abstract> <title style='display:none'>Summary</title> <p>Regulation of fiscal responsibility is an integral part of the Constitution in several European states. Among these states there is also Slovakia, which passed a special constitutional law on fiscal responsibility in 2011 and established the Fiscal Responsibility Council as an independent constitutional institution. This constitutional law was followed by a new constitutional amendment in 2020, which enshrines the explicit obligation for the State to protect the long-term sustainability of its economy through transparency and efficiency in the spending of public funds. In this context, this article analyzes the normative scope of this constitutional framework and its effects in practice, as well as the theoretical possibilities of its applicability in proceedings before the Constitutional Court of the Slovak Republic.</p> </abstract>ARTICLE2021-08-19T00:00:00.000+00:00Reforming the International Criminal Court (ICC): Progress, Perils and Pitfalls Post the ICC Review Process<abstract> <title style='display:none'>Summary</title> <p>The International Criminal Court is a very controversial institution. It is extensively criticised by both its critics and its supporters. This article examines what steps have been taken to reform the Court. It considers issues such as the need for better communications and messaging by the Court. The paper takes up how and why the Court needs to engage better and in more far-reaching ways with a host of role players that affect the terrain in which the Court operates. It is argued that more reform is needed in how the Court is lead, how it operates, and who the judges and staff are. It is argued that greater diversity is needed at the Court. Also taken up are how the reach of the Court can be increased beyond only prosecutions, how the Court can assist states to prosecute more cases themselves, and how the Court can become more victim centred. A core theme is how state cooperation can be enhanced. A range of suggestions are made so as to enhance the role of the Court in the years to come.</p> </abstract>ARTICLE2021-08-19T00:00:00.000+00:00“This Content is not Available in your Country” A General Summary on Geo-Blocking in and Outside the European Union<abstract> <title style='display:none'>Summary</title> <p>The phenomenon of geo-blocking is one of the new challenges of the digital era. Geo-blocking is a modern form of discrimination that differentiates between consumers on the basis of their geographical location. The phenomenon ultimately affects the situation of the citizen concerned and may also constitute an obstacle to the single market. Digital time has put a number of issues to be resolved on the legislator’s table in recent years, one of which is the phenomenon of geo-blocking. Already in 2015, the European Commission led by Juncker (2014–2019) adopted the Digital Single Market (DSM) strategy, which marked the European Union’s (EU) path towards innovation by creating a new digital dimension of the Single Market. In order to achieve the DSM strategy and the digital objectives, a number of legislative acts have been put in place to address the elements of the DSM and exploit the benefits of technological modernisation. The geo-blocking phenomenon is presented in this study, partly in terms of practical aspects and partly with regard to the geo-blocking regulation. The Ursula von der Leyen-led Commission (2019–2024) identifies “a Europe fit for the digital age” among its six priorities. Among the priorities, the “promotion of a European way of life”, must be linked to the digital priorities, as our smart tools and our digital presence are becoming an integral part of our lives – and our common way of life – especially at this time of the COVID-19 pandemic. Innovation has also been accelerated by the current exceptional situation, the health emergency caused by COVID-19, forcing us to work remotely, remote contacts and the constant use of our smart tools. The realisation of digital well-being is therefore also an integral part of our lifestyle. In the intersection of digitalisation and development and the promotion of a common European way of life, we can find a single market in which we can experience a significant aspect of our European way of life – the free movements and cross-border transactions – even through our online presence. The internal market is the dimension for the proper functioning of which the Union institutions can adopt a legislative act. In addition, measures taken to remove barriers and remove obstacles are essential for the functioning of the internal market. Joint action against geo-blocking as an internal market barrier will also play a role in creating digital prosperity by promoting the proper functioning of the internal market by promoting e-commerce and electronic content access. The aim of the study on the one hand is to present issues related to geo-blocking in a brief and descriptive manner from the perspective of the social, economic and legal environment linked to the internal market. On the other hand, the study briefly presents the legal environment of geo-blocking in the USA, Russia, China and Japan.</p> </abstract>ARTICLE2021-08-19T00:00:00.000+00:00en-us-1