rss_2.0International and Comparative Law Review FeedSciendo RSS Feed for International and Comparative Law Review and Comparative Law Review Feed and Procedural Issues arising from the Expulsion of the Russian Federation from the Council of Europe<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>ARTICLEtrue Women are Raped, Men are Killed: The Russian Federation Violates International Law<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>ARTICLEtrue Kuwait to Ukraine: Conflict’s Implications on the Natural Environment and the Responses of International Humanitarian Law<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<sup>th</sup>, 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>ARTICLEtrue Role and Impact of the OSCE Moscow Mechanism Reports Following the Russian Invasion of Ukraine<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>ARTICLEtrue International Criminal Court: Whether the Crime of Aggression in Ukraine<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>ARTICLEtrue ICC’s investigation into the situation in Ukraine on the basis of referrals by third states parties to the Rome Statute: A commentary<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>ARTICLEtrue Interplay between Neutrality, Qualified Neutrality and Co-belligerency in the Context of U.S. Intervention in the Russia-Ukraine War<abstract> <title style='display:none'>Summary</title> <p>The United States of America (U.S.), and the European Union (EU) have supplied weapons to Ukraine in the ongoing Russian-Ukraine armed conflict. The Pentagon has pledged thousands of weapons to Ukraine as part of the security/military aid to worn-torn Ukraine. The supply of such weapons by a neutral/non- belligerent state stands in clear violation of the laws of Neutrality which casts a duty on the neutral states to refrain from participating in the hostilities and be impartial in their conduct towards the belligerents. However, the argument of the U.S. government in previous such instances has been that laws of neutrality have been overshadowed by the United Nations (UN) Charter and modern forms of warfare and the U.S. maintains that they fall under <italic>qualified neutrality</italic> after the 20<sup>th</sup> century. However, Qualified Neutrality is not recognised either under treaty conventions or customary international law. Similarly, international laws in terms of co-belligerency are also governed by International Humanitarian Laws (IHL) under the Four Geneva Convention of 1949 which lays down rules where military assistance by a neutral state can result in co-belligerency. However, no existing treaty or international law lays down a clear threshold for crossing from a neutral state to a co-belligerent state which has also led to an ambiguity in terms of checks and balances of the lethal weapons supplied to Ukraine by the U.S. currently. This article attempts to define the threshold in terms of severity, effectiveness, and inertia of the intervention. It further argues that the U.S. has crossed its threshold and therefore the existing laws governing violation of neutrality and affixing of state responsibility are now applicable to the U.S.</p> </abstract>ARTICLEtrue Over for Russian Athletes? Human Rights Aspects of Measures Adopted by International Sports Organisations as a Response to the Russian Aggression against Ukraine<abstract> <title style='display:none'>Summary</title> <p>The Russian invasion of Ukraine has tested the mettle of the international community, prompting not only States but also non-state actors to take deterrent action in response. Indeed, international sports organisations, namely the Fédération Internationale de Football Association (FIFA) and the Federation of European Football Associations (UEFA), have been relatively successful in shifting the power dynamics by introducing a complete ban on the Football Union of Russia (FUR), i.e., the Russian national and club teams. This article investigates the human rights implications of such actions by international sports organisations. First, the article departs from an assessment of the legal status of FIFA and UEFA under international law. It reflects how a legal link could be established vis-à-vis their human rights obligations. Second, it examines the human rights aspects of the impugned measures by FIFA and UEFA on the part of the Russian athletes, further scrutinising them against the international human rights law principle of non-discrimination through a proportionality test. Finally, it draws basic pathways for how possible human rights violations committed in the context of measures adopted by such organisations could be remedied, outlining the challenges of arbitration and litigation in Switzerland.</p> </abstract>ARTICLEtrue the persisting relevance of the Uniting for Peace resolution for the maintenance of international peace and security: Russia’s invasion of Ukraine and Security Council Resolution 2623 (2022)<abstract> <title style='display:none'>Summary</title> <p>This article will evaluate the question of the persisting relevance of the Uniting for Peace resolution (General Assembly resolution 377 A (V) (3 November 1950)) (henceforth U4P) to facilitating the United Nations’ role in the maintenance of international peace and security and responding to Russia’s invasion of Ukraine, February 2022. The United Nations’ principal organ tasked with primary responsibility for the maintenance of international peace and security is the United Nations Security Council. Where the Security is unable to fulfil this responsibility due to the exercise of the veto by one of its permanent members it may have recourse to the U4P resolution. In effect U4P enables the Security Council to side-step the restriction of the veto and, through a procedural mechanism, refer the matter to the General Assembly to convene an Emergency Special Session for its consideration. Alternatively, the General Assembly can initiate the procedure under the U4P resolution where the Security Council fails to take action. The Security Council’s utilisation of the U4P procedure in Security Council resolution 2623 (2022) in response to Russia’s invasion of Ukraine was only the eighth occasion since U4P’s conception in 1950 by the General Assembly. Moreover, the last time the SC resorted to U4P was in 1982. The General Assembly has invoked U4P on at least four occasions since 1997. Under U4P the General Assembly has the power to recommend measures that can be taken for the purposes of the maintenance of international peace and security. However, the power of recommendation that the General Assembly can exercise under U4P are powers derived from the United Nation’s Charter and not from the U4P resolution. Other than introducing the concept of ‘emergency special sessions’, the U4P resolution does not establish a procedural mechanism not already provided for in the UN Charter. Therefore, in responding to Russia’s invasion of Ukraine the General Assembly has the power to make recommendations with or without reference to the U4P resolution. In this article it will be argued that U4P does not give the General Assembly powers it does not already have under the Charter. It is clear from Resolution 377A (V) that a key premise for the resort to U4P is to empower the General Assembly to take ‘collective measures’ for the maintenance of international peace and security in lieu of the Security Council being able to do so due to the casting of the veto by one of the permanent members. However, U4P is not an independent source of the Assembly’s powers, it is merely an aspect of its practice and the General Assembly has the power to make such a recommendation for ‘collective measures’ in response to Russia’s invasion of Ukraine by virtue of the UN Charter, with or without reference to the U4P resolution.</p> </abstract>ARTICLEtrue Response to the Mass Influx of People Caused by the Russian Invasion of Ukraine: Testing the Limits of International Refugee Law<abstract> <title style='display:none'>Summary</title> <p>Russia’s invasion of Ukraine has forced millions of people to flee the erupting armed conflict. Some of them were displaced within Ukrainian territory, others crossed the border and sought refuge in neighbouring countries and others further abroad. This article explores the limits of international refugee law in addressing this situation, which are of two kinds. First, people fleeing armed conflict are not considered refugees under the Refugee Convention if they are ‘merely’ fleeing armed conflict. Furthermore, the large number of persons arriving is also a limit. These limitations of international refugee law are filled by regional protection statuses (including temporary protection in European Union law) and the procedural ways in which protection can be granted. This article focuses on whether the current legislation in EU law is a sufficient response to the situation created by the Russian invasion of Ukraine.</p> </abstract>ARTICLEtrue Arms Transfers in the Russia-Ukraine Conflict in the Light of the Arms Trade Treaty, State Responsibility, and the Law of Neutrality<abstract> <title style='display:none'>Summary</title> <p>Since the beginning of the Russia-Ukraine conflict, States worldwide have provided support, primarily through various weapon supplies to both parties. This paper analyses whether these arms transfers follow international law from three perspectives. The first perspective looks at treaties governing the trade of prohibited weapons before looking at the general trade of weapons under the Arms Trade Treaty and state obligations under its articles. The second perspective evaluates the derivative liability incurred by any State which makes such arms transfers under Article 16 of the Articles on Responsibility of States for Internationally Wrongful Acts, 2001, and how it is impacted in light of humanitarian law violations by Ukraine. The third perspective accounts for the arms transfers and support provided in the eyes of the law of neutrality.</p> </abstract>ARTICLEtrue Strengthening the Position of the Injured Party of the Offence of Failure to Pay Alimony under Section 196 of the Czech Criminal Code and in Selected European Legal Regulations<abstract> <title style='display:none'>Summary</title> <p>The offence of failure to pay alimony under section 196 is one of the most frequent offences in the Czech Republic. Since the protected interest is the right to support and maintain and the most common is the duty of parents towards their children, it is a very serious illegal activity that significantly endangers children and has a negative impact on their development, both health and social. In recent years, Czech legislators have focused on this issue and adopted institutes that strengthen the position of the injured party in these cases. Any kind of sanction has proved to be an ineffective tool for enforcing the delinquent alimony, so it has been necessary to ensure that it can be enforced by other means. Therefore, the legislators broadened the definition of the injured party in criminal proceedings and introduced the so-called substitute alimony. It is also interesting to look into foreign legal regulations and compare selected institutes.</p> </abstract>ARTICLEtrue Legal Personality of Transnational Corporations – Any Chance for the Theoretical Shift with Respect to a Legally Binding Instrument on Human Rights and TNCs?<abstract> <title style='display:none'>Summary</title> <p>Multinational enterprises or transnational corporations are big and influential actors on international scene. Their economic activities might have unfortunately a negative impact on human rights or environment. Current international law does not have any concrete and satisfactory answer to such situation of lacking direct substantial human rights obligations with respect to transnational corporations and corresponding procedural mechanism. Often, this situation is substantiated by missing or unclear concept of international legal personality of those entities. The present article presents international legal personality of transnational corporations from the perspective of the Legally biding instrument on human rights and TNCs drafted by inter-governmental working group. After portraying general features of international legal personality, the author tends to conciliate basic theoretical concept with the TNCs situation. Then the author presents a deep analysis of the Legally binding instrument and comes to the conclusions of maturing international legal personality of transnational corporations.</p> </abstract>ARTICLEtrue Abuse and Criminal Responsibility: Lithuanian Case Law on Domestic Violence<abstract> <title style='display:none'>Summary</title> <p>Though economic abuse is under researched in Lithuania it is not less widespread nor less serious as physical or sexual violence. The objective of this article is to determine the scope of prosecuting economic abuse in context of domestic violence. Desk research methodology based on case study is used: qualitative content research of Lithuanian case law. The findings of the research suggest that prosecution of economic abuse as a specific form of domestic violence is rather limited in Lithuania: i.e., criminalization is only partial; law enforcement faces difficulties in recognizing and evidencing it; the case law is not adequate (e. g., prosecution mostly focuses on physical violence, it is incident-based, ignores the specifics of domestic violence and economic abuse is commonly interpreted as context of systemic violence but not an independent basis for prosecution). Accordingly, there is a need to enhance criminal law response to economic abuse and explore for the optimal alternative to ensure this in Lithuania.</p> </abstract>ARTICLEtrue Perspectives on Smart City Data as a Commons<abstract> <title style='display:none'>Summary</title> <p>Smart cities are purported to produce vast amounts of data of immense value, both commercially and from a governance perspective. The control and stewardship of this smart city data remains controversial, with concerns for the role of the individual smart citizens and the control they exercise over the data they generate. Elinor Ostrom’s Nobel prize winning work on long-lasting and sustainable commons has been suggested as a solution, whereby the commons management principles would be applied to smart city data. This paper seeks to identify the current applications of Ostrom’s commons to smart city data in literature, as well as explore their legal implications. Particularly, what legal challenges may arise from the smart city data commons, and how they could be addressed through legislative frameworks. The article aims to identify and highlight these legal challenges and thereby provide a legal perspective on the concept of smart city data commons.</p> </abstract>ARTICLEtrue Singapore Mediation Convention and International Business Mediation<abstract> <title style='display:none'>Summary</title> <p>The article deals with the International Business Mediation and Singapore Mediation Convention on enforcing cross-border mediated settlement agreements. Mediation, as an alternative dispute resolution method, is widely preferred by parties with disputes in many countries. For this reason, in relation to ADR methods including mediation, both in Anglo-American Law and in Continental European Law, various technical and legal arrangements have been made. Mediation Laws in the EU have become one of the regulations bringing out rules that are in conformity with the new developments reflected also in the Singapore Convention on Mediation. Harmonisation initiatives in the EU and in the global world are not confined to intergovernmental activities. The same is also currently ongoing in the field of unification. Also, the private business sector, less restricted by jurisdictional boundaries, is increasingly driving harmonisation in mediation practice and law. As applicable national mediation law is often the same for cross-border and domestic applications, the Singapore convention introduces a contemporary definition of mediation procedural law and offers positive factors that shape it globally. Relevant national and international aspects are presented throughout the first part of this study, with specific sections on international business mediation and international instruments of private international law.</p> </abstract>ARTICLEtrue Person of the Arbitrator in Comparative Perspective of Czech and German Law<abstract> <title style='display:none'>Summary</title> <p>In arbitration, it is the parties who, on the basis of various criteria – experience, references, expertise, previous meetings, etc. – can determine who will decide their dispute as an arbitrator. In this respect, arbitration differs fundamentally from proceedings before the ordinary courts in civil proceedings, where the judge is appointed on the basis of a work schedule and the parties to the dispute cannot change the judge so appointed by agreement. Nonetheless, despite the broad autonomy of the parties, the various legal systems lay down certain conditions which must be met by any person wishing to act as an arbitrator. This article takes a comparative view of these legal conditions to act as an arbitrator and seeks to highlight the differences in the conditions defined, the (in)appropriateness of certain conditions and the fact that a person who does not meet the conditions to act as an arbitrator under one legal system does not automatically mean that he cannot be an arbitrator under another legal system..</p> </abstract>ARTICLEtrue Data Protection in Brazil: How Much Europeanization?<abstract> <title style='display:none'>Summary</title> <p>In this article, we are assessing the impact of GDPR on the adoption of the Brazilian LGPD regulation. The assessment is done in the context of Europeanization. After the introduction of key concepts, the article is providing deeper insight into the LGPD creation, revealing historical and teleological perceptions of the influence: Moreover, a separate chapter is provided on the comparative dimension. Overall, with the adoption of the GDPR EU created a comprehensive regulatory regime, which was reflected by Brazilian lawmakers, who found strong inspiration in the EU regulation and who have decided to converge in order to avoid losses associated with a potential difference between the EU and Brazilian data market. As a result, LGPD is very similar to the GDPR and in many parts is taking the same attitude..</p> </abstract>ARTICLEtrue Significance of the Ultimatum in International Law: The Responsibility of the Head of the USSR for the Events of January 1991 in Lithuania<abstract> <title style='display:none'>Summary</title> <p>This article analyzed the significance of the ultimatum as a means of declaring aggression against another state in international law, and what influence it has in evaluating the actions of the head of USSR in the context of the events of January 13th 1991. The first part of the article analyzed the classical concept of ultimatum and its meaning in international law. Later, alternative forms of expression of ultimatum, which were formed in the 20th century, and practiced during international conflicts, and their assessment in international law, were analyzed. Finally, after refining the existing legal significance of the ultimatum, we analyzed the significance of the ultimatum against Lithuania issued by the head of the USSR on 10 January 1990, We also examined his further actions on 11–13 January 1991 in evaluating assumptions of his personal responsibility as head of USSR of the armed forces regarding the tragic events of January 13th 1991. As a result of the investigation, it was concluded that the ultimatum of the head of the USSR issued on January 10th, 1991, within the meaning of international law, had a direct connection in the assessment of the issue of criminal liability in relation to international crimes committed by the armed forces of the USSR. The aggressive foreign policy pursued by the head of the USSR in expressing it within a tacit ultimatum based on the try and see method, and subsequently international crimes against the Lithuanian state committed by military units, are considered the actual basis for the emergence of personal criminal liability of the head of the USSR for the events of January 13th, 1991 under international law.</p> </abstract>ARTICLEtrue“The Right to be Remembered?”: The Contemporary Challenges of the “Streisand Effect” in the European Judicial Reality<abstract> <title style='display:none'>Summary</title> <p>The protection of human privacy is one of the most disputable topics of European human rights law. That is why the judicial practice of the European Supranational Courts is rich in numerous decisions in this area, since human privacy is one of the most violated human rights, especially in the context of the development of digital technologies. Trying to find protection of their rights through institutional mechanisms of human rights (in particular, through the CJEU and the ECtHR), the applicant often finds himself/herself in a more difficult position: he/she becomes even more an object of public discussion. This phenomenon is especially vividly illustrated by the judicial practice of the European Supranational Courts in the field of protection of the right to be forgotten, which will be paid attention to in this research. At the same time, some suggestions will also be put forward to strengthen the effectiveness of protecting the confidentiality of applicants in the judicial decisions of the Courts.</p> </abstract>ARTICLEtrue