Access and Benefit Sharing (ABS) in international environmental laws (mainly, but not limited to, biodiversity) converges with human rights instruments on indigenous people. State parties should take legislative, administrative, and practical measures to realize the ABS regimes. This article argues that there are normative and practical gaps including confusing ABS with compensation in Ethiopian domestic laws and actual implementation, while ABS itself is not well understood. The article finally recommends legal amendments and policymakers’ political move to comply with the country’s international duty.
{"title":"Access and Benefit Sharing Effectiveness: International Environmental Law Implementation at the Domestic Ethiopian Level","authors":"Abebe Kebede Jalleta","doi":"10.4236/BLR.2021.122027","DOIUrl":"https://doi.org/10.4236/BLR.2021.122027","url":null,"abstract":"Access and Benefit Sharing (ABS) in international environmental laws (mainly, but not limited to, biodiversity) converges with human rights instruments on indigenous people. State parties should take legislative, administrative, and practical measures to realize the ABS regimes. This article argues that there are normative and practical gaps including confusing ABS with compensation in Ethiopian domestic laws and actual implementation, while ABS itself is not well understood. The article finally recommends legal amendments and policymakers’ political move to comply with the country’s international duty.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"16 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117204984","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The International Law Commission (ILC) temporarily adopted Draft Article 7 on immunity of state officials from foreign criminal jurisdiction, listing six international crimes such as genocide and crimes against humanity that state officials don’t share immunity from foreign criminal jurisdiction. This paper holds a conservative attitude to the adoption of Draft Article 7 after combing international and national practice and research on immunity theory. First, by sorting out international practices and national practices, it could be drawn that the exception to immunity of state officials from foreign criminal jurisdiction has not yet formed customary international law. Second, through the analysis of the theory and practices, it could be found that the theory for supporting international crimes as exceptions to the immunity of state officials from foreign criminal jurisdiction: international crimes should not be recognized as official acts, the effectiveness of jus cogens is higher than the immunity rule and the theory of impunity against international crimes are not sufficient. Based on the above results, this paper argues that the ILC should not make clarifying immunity exceptions the core of its work on this topic; instead, it should focus on further clarifying the rules for granting state officials immunity from foreign criminal jurisdiction to respect the principle of sovereign equality of states and maintain the stability of international relations.
{"title":"The Limitations and Exceptions to Immunity of States Officials from Foreign Criminal Jurisdiction: On ILC Draft Article 7","authors":"Huaiguo Ren, Zhaoxin Jin","doi":"10.4236/BLR.2021.122017","DOIUrl":"https://doi.org/10.4236/BLR.2021.122017","url":null,"abstract":"The International Law Commission (ILC) temporarily adopted Draft Article 7 on immunity of state officials from foreign criminal jurisdiction, listing six international crimes such as genocide and crimes against humanity that state officials don’t share immunity from foreign criminal jurisdiction. This paper holds a conservative attitude to the adoption of Draft Article 7 after combing international and national practice and research on immunity theory. First, by sorting out international practices and national practices, it could be drawn that the exception to immunity of state officials from foreign criminal jurisdiction has not yet formed customary international law. Second, through the analysis of the theory and practices, it could be found that the theory for supporting international crimes as exceptions to the immunity of state officials from foreign criminal jurisdiction: international crimes should not be recognized as official acts, the effectiveness of jus cogens is higher than the immunity rule and the theory of impunity against international crimes are not sufficient. Based on the above results, this paper argues that the ILC should not make clarifying immunity exceptions the core of its work on this topic; instead, it should focus on further clarifying the rules for granting state officials immunity from foreign criminal jurisdiction to respect the principle of sovereign equality of states and maintain the stability of international relations.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130427219","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article examines how the existing law of armed conflict may be applied or adapted to meet the challenges posed by cyber-attacks. It begins with a definition of cyber-attacks, cyberexploitation and cyberespionage and their differences. The article discusses how cyber-attacks are regulated by the existing body of laws such as the United Nations Charter, International humanitarian Law (IHL), international treaties and domestic laws. It notes that the existing law addresses only a small fraction of potential cyber-attacks. IHL, for example, provides a useful framework for a very small number of cyber-attack that amounts to an armed attack or that take place within the context of armed conflict. The article concludes that, since cyber-attacks are global in nature, there is need for a new international legal framework to more effectively deal with the challenges posed by cyber-attacks.
{"title":"Cyberattack and the Use of Force in International Law","authors":"Joseph N. Madubuike-Ekwe","doi":"10.4236/blr.2021.122034","DOIUrl":"https://doi.org/10.4236/blr.2021.122034","url":null,"abstract":"This article examines how the existing law of armed conflict may be applied or adapted to meet the challenges posed by cyber-attacks. It begins with a definition of cyber-attacks, cyberexploitation and cyberespionage and their differences. The article discusses how cyber-attacks are regulated by the existing body of laws such as the United Nations Charter, International humanitarian Law (IHL), international treaties and domestic laws. It notes that the existing law addresses only a small fraction of potential cyber-attacks. IHL, for example, provides a useful framework for a very small number of cyber-attack that amounts to an armed attack or that take place within the context of armed conflict. The article concludes that, since cyber-attacks are global in nature, there is need for a new international legal framework to more effectively deal with the challenges posed by cyber-attacks.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"24 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121408213","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This research has investigated the Ethiopian bankruptcy law governing share companies in light of the 2005 legislative guide of the United Nations. The research employed doctrinal legal research approach and those collected data were analyzed qualitatively. The Ethiopian bankruptcy law is also compared with the international guidelines. The bankruptcy law regulating business organizations in general and share companies in particular is in operation since 1960. However, it is considered to be one of the least practiced laws of the country due to the reasons, such as historical background, lack of familiarity and existence of foreclosure law. The paper addresses whether there is a need to amend the bankruptcy law of share companies engaged in non-financial businesses in Ethiopia. In particular, it is devoted to deal with the scope of liquidation, initiation of liquidation, actors in liquidation and effects of liquidation. It is still tried to investigate the gaps and areas which need revision in the current bankruptcy provisions of the 1960 commercial code of Ethiopia. It has been concluded that, the bankruptcy provisions which are applicable for share companies fail to satisfy the current sophisticated business environment. In addition to these, the provisions are not in line with the standards of the legislative guide with regard to the critical issues. Therefore, this paper suggests that there is a need to revise and modernize the bankruptcy provisions governing share companies other than financial institutions in the country taking the current business environment and standards of the legislative guide into consideration.
{"title":"Bankruptcy Law of Share Companies under Ethiopian Law: Focus on Non-Financial Sectors","authors":"Yared Kefyalew Demarso, Bogale Anja Abba","doi":"10.4236/BLR.2021.121015","DOIUrl":"https://doi.org/10.4236/BLR.2021.121015","url":null,"abstract":"This research has investigated the Ethiopian bankruptcy law governing share companies in light of the 2005 legislative guide of the United Nations. The research employed doctrinal legal research approach and those collected data were analyzed qualitatively. The Ethiopian bankruptcy law is also compared with the international guidelines. The bankruptcy law regulating business organizations in general and share companies in particular is in operation since 1960. However, it is considered to be one of the least practiced laws of the country due to the reasons, such as historical background, lack of familiarity and existence of foreclosure law. The paper addresses whether there is a need to amend the bankruptcy law of share companies engaged in non-financial businesses in Ethiopia. In particular, it is devoted to deal with the scope of liquidation, initiation of liquidation, actors in liquidation and effects of liquidation. It is still tried to investigate the gaps and areas which need revision in the current bankruptcy provisions of the 1960 commercial code of Ethiopia. It has been concluded that, the bankruptcy provisions which are applicable for share companies fail to satisfy the current sophisticated business environment. In addition to these, the provisions are not in line with the standards of the legislative guide with regard to the critical issues. Therefore, this paper suggests that there is a need to revise and modernize the bankruptcy provisions governing share companies other than financial institutions in the country taking the current business environment and standards of the legislative guide into consideration.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"10 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-03-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117189530","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The provision of rights of inheritance in the Muslim law is Allah’s command to the Muslim Community. In the holy Quran, Allah specified the portions of an heir. This research will describe and indicate the rights of inheritance in particular circumstances under Muslim Law. The holy Quran does not express directly regarding the rights inheritance of a person in some special circumstances. For this reason, Jurists originate particular rules regarding their “right of inheritance” by the support of the Quran, “Hadith,” Ijma, and “Qiyas”. There is a gap between faith and humanity, and our social order does not preserve the portions of properties in some special cases. So, there is needed to protect the rights of inheritance of a person in special cases for better solutions of a future event and implement Allah’s command in these regards. This article shall try to give an overview on the rights of inheritance of a child in the mother’s womb, a missing person, the concurrent or simultaneous death. Finally, by this research, the researcher shall attempt to create a specific structure for protection of rights of inheritance in exceptional cases in acquiescence with the said provisions of the “Holy Quran, Hadith, Ijma, Qiyas”, and likewise view of various renowned Imam and “jurists of the Muslim World”.
{"title":"Provisions of the Rights of Inheritance in Special Circumstances in the Muslim Law: An Overview","authors":"M. Uddin","doi":"10.4236/BLR.2021.121012","DOIUrl":"https://doi.org/10.4236/BLR.2021.121012","url":null,"abstract":"The provision of rights of inheritance in the Muslim law is Allah’s command to the Muslim Community. In the holy Quran, Allah specified the portions of an heir. This research will describe and indicate the rights of inheritance in particular circumstances under Muslim Law. The holy Quran does not express directly regarding the rights inheritance of a person in some special circumstances. For this reason, Jurists originate particular rules regarding their “right of inheritance” by the support of the Quran, “Hadith,” Ijma, and “Qiyas”. There is a gap between faith and humanity, and our social order does not preserve the portions of properties in some special cases. So, there is needed to protect the rights of inheritance of a person in special cases for better solutions of a future event and implement Allah’s command in these regards. This article shall try to give an overview on the rights of inheritance of a child in the mother’s womb, a missing person, the concurrent or simultaneous death. Finally, by this research, the researcher shall attempt to create a specific structure for protection of rights of inheritance in exceptional cases in acquiescence with the said provisions of the “Holy Quran, Hadith, Ijma, Qiyas”, and likewise view of various renowned Imam and “jurists of the Muslim World”.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131080105","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In contemporary times, the value of international commercial transactions in goods services has increased alongside globalisation and consequently translated on the flip side to increased prospects of commercial disputes. Although litigation through the court processes has hitherto been the default mechanism for the resolution of commercial disputes, it is manifestly clear that in the present era of globalisation and digital age, it is not always the most effective and efficient way of dealing with commercial disputes. In Africa, arbitration has gained traction and increasingly used to resolve international commercial disputes within and outside the continent. Regardless of its inherent strengths, international commercial arbitral awards are enforceable only through the domestic legal systems and to the extent that the arbitral awards are compatible with national laws and standards including public policy. In view of the foregoing, this work undertakes, from a comparative perspective, an in-depth analysis of the public policy exemption to the enforcement of arbitral awards in Nigeria. The significance of this research that concentrates on the public policy exception to the recognition and enforcement of foreign arbitral awards in Nigeria, as against other aspects of international commercial arbitration, is because the recognition and enforcement of foreign arbitral awards are the most important and crucial part of the whole process of international commercial arbitration. It also intends to analyse public policy defence as articulated in several enforcement conventions and laws, particularly the New York Convention on Recognition and Enforcement of Arbitral Award, the UNCITRAL Model Law on International Commercial Arbitration and the Nigerian Arbitration and Conciliation Act.
{"title":"Public Policy Exception in the Enforcement of Arbitral Awards in Nigeria","authors":"U. Emelonye, U. Emelonye","doi":"10.4236/BLR.2021.121016","DOIUrl":"https://doi.org/10.4236/BLR.2021.121016","url":null,"abstract":"In contemporary times, the value of international commercial transactions in goods services has increased alongside globalisation and consequently translated on the flip side to increased prospects of commercial disputes. Although litigation through the court processes has hitherto been the default mechanism for the resolution of commercial disputes, it is manifestly clear that in the present era of globalisation and digital age, it is not always the most effective and efficient way of dealing with commercial disputes. In Africa, arbitration has gained traction and increasingly used to resolve international commercial disputes within and outside the continent. Regardless of its inherent strengths, international commercial arbitral awards are enforceable only through the domestic legal systems and to the extent that the arbitral awards are compatible with national laws and standards including public policy. In view of the foregoing, this work undertakes, from a comparative perspective, an in-depth analysis of the public policy exemption to the enforcement of arbitral awards in Nigeria. The significance of this research that concentrates on the public policy exception to the recognition and enforcement of foreign arbitral awards in Nigeria, as against other aspects of international commercial arbitration, is because the recognition and enforcement of foreign arbitral awards are the most important and crucial part of the whole process of international commercial arbitration. It also intends to analyse public policy defence as articulated in several enforcement conventions and laws, particularly the New York Convention on Recognition and Enforcement of Arbitral Award, the UNCITRAL Model Law on International Commercial Arbitration and the Nigerian Arbitration and Conciliation Act.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"26 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124102660","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The purpose of this research is to examine the character and efficacy of a floating charge as a security in Nigerian law. It argues that the disadvantages of a floating charge are so much making it a vulnerable security. The charge holder runs the risk of the company dissipating the assets attached to the charge which arguably is the most serious risk the charge holder faces. Furthermore, a floating charge usually will be deferred to any subsequent fixed legal charge created by the company over its assets. Similarly, if the company’s debts are under a floating charge, a floating charge holder’s asset will be made subject to or put under a lien or any set off created by the company with respect to the charged assets before crystallization. It uses the blackletter approach, relying particularly on the relevant provisions of the Nigerian Companies and Allied Matters Act and cases.
{"title":"A Critical Analysis of the Nature and Effectiveness of a Floating Charge as a Security in Nigerian Law","authors":"E. Emudainohwo","doi":"10.4236/BLR.2021.121011","DOIUrl":"https://doi.org/10.4236/BLR.2021.121011","url":null,"abstract":"The purpose of this research is to examine the character and efficacy of a floating charge as a security in Nigerian law. It argues that the disadvantages of a floating charge are so much making it a vulnerable security. The charge holder runs the risk of the company dissipating the assets attached to the charge which arguably is the most serious risk the charge holder faces. Furthermore, a floating charge usually will be deferred to any subsequent fixed legal charge created by the company over its assets. Similarly, if the company’s debts are under a floating charge, a floating charge holder’s asset will be made subject to or put under a lien or any set off created by the company with respect to the charged assets before crystallization. It uses the blackletter approach, relying particularly on the relevant provisions of the Nigerian Companies and Allied Matters Act and cases.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129456365","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Ante Lozina, I. Kružić, A. Banovac, D. Bogunović, Ž. Bašić, Irina Zakirova, J. Rayner, Margaret K. Smith
The study of human remains has a significant impact on the present society. They are utilized in research, in fields studying the human past and origins, in epidemiology, the study of anatomy and morphology, pathology and trauma, and form a part of museum exhibits. On the other hand, they are significant to various groups in cultural, religious, spiritual, and personal ways. Therefore, these factors should be considered when conducting research. Although some countries ensure legal protection of human remains, usually, such concerns usually cover remains that are younger than 100 years. The differences between countries in legal protections and also the cultural, religious, and ethical attitudes that underlie them can hinder international cooperation. The current collaborative research study sought to investigate and compare such differences between Croatian, United Kingdom’s and United States’ approach to the study of human remains encompassing the following: definitions of human remains as cultural goods, legal issues with obtaining custody over the body parts, compensations for the next of kin for the use of human remains for science, and public perceptions about obtaining body parts for scientific purposes through cultural and religious aspects in perspective with religious beliefs, education, place of origin, gender and attitudes towards science. After collecting data and determining all the above mentioned factors, our aim is to propose the policies on utilizing human remains on multilateral/international level (especially regarding human remains in museums and related institutions) through guidelines, taking into account the differences in ethnicity, religion and degree of formal education between social groups in different countries.
{"title":"Utilizing Human Remains for Science: Ethical, Legal, and Scientific Issues in Croatia, United Kingdom and the United States","authors":"Ante Lozina, I. Kružić, A. Banovac, D. Bogunović, Ž. Bašić, Irina Zakirova, J. Rayner, Margaret K. Smith","doi":"10.4236/BLR.2021.121009","DOIUrl":"https://doi.org/10.4236/BLR.2021.121009","url":null,"abstract":"The study of human remains has a significant impact on the present society. They are utilized in research, in fields studying the human past and origins, in epidemiology, the study of anatomy and morphology, pathology and trauma, and form a part of museum exhibits. On the other hand, they are significant to various groups in cultural, religious, spiritual, and personal ways. Therefore, these factors should be considered when conducting research. Although some countries ensure legal protection of human remains, usually, such concerns usually cover remains that are younger than 100 years. The differences between countries in legal protections and also the cultural, religious, and ethical attitudes that underlie them can hinder international cooperation. The current collaborative research study sought to investigate and compare such differences between Croatian, United Kingdom’s and United States’ approach to the study of human remains encompassing the following: definitions of human remains as cultural goods, legal issues with obtaining custody over the body parts, compensations for the next of kin for the use of human remains for science, and public perceptions about obtaining body parts for scientific purposes through cultural and religious aspects in perspective with religious beliefs, education, place of origin, gender and attitudes towards science. After collecting data and determining all the above mentioned factors, our aim is to propose the policies on utilizing human remains on multilateral/international level (especially regarding human remains in museums and related institutions) through guidelines, taking into account the differences in ethnicity, religion and degree of formal education between social groups in different countries.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"22 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123470203","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Freedom of Association is a fundamental human right. It is essential to sustained progress. There is security of employment in circumstances where an employee is allowed to join a union and within that union to bargain collectively with others. Initially in Botswana, public sector employees could not belong to unions. It was through the influence of international instruments that Botswana subsequently allowed public sector unions to unionise. This paper touches on the significant provisions of the International Labour Organisation that were instrumental in the change of mindset. International labour standards impact positively on security of tenure in both the public and private sector, especially Freedom of Association. The paper acknowledges the special and peculiar nature of the public service, but however urges for an indivisible labour law regime for both public and private employment according to historical and comparative materials perused.
{"title":"The Influence of International Instruments on Public Service Labour Relations in Botswana Prior to the Advent of Unionization","authors":"K. Solo","doi":"10.4236/BLR.2021.121010","DOIUrl":"https://doi.org/10.4236/BLR.2021.121010","url":null,"abstract":"Freedom of Association is a fundamental human right. It is essential to sustained progress. There is security of employment in circumstances where an employee is allowed to join a union and within that union to bargain collectively with others. Initially in Botswana, public sector employees could not belong to unions. It was through the influence of international instruments that Botswana subsequently allowed public sector unions to unionise. This paper touches on the significant provisions of the International Labour Organisation that were instrumental in the change of mindset. International labour standards impact positively on security of tenure in both the public and private sector, especially Freedom of Association. The paper acknowledges the special and peculiar nature of the public service, but however urges for an indivisible labour law regime for both public and private employment according to historical and comparative materials perused.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"238 1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132324123","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Normative analysis found that for the application of liability for transboundary damage to genetically modified organisms, there are currently three liability patterns: traditional state liability, private law liability, and liability for transboundary damage. It will not be an effective solution to the problem of penalty for damages, if the above liability patterns apply to transboundary damage of genetically modified organisms separately. And this approach is inconsistent with the legal principles of relevant international law and judicial practice. So this article uses method of legal interpretation to analyze and interpret the provisions of Convention on Biological Diversity, The Cartagena Protocol on Biosafety and The Nagoya-Kuala Lumpur Supplementary Protocol to clarify the true meaning of the provisions in depth, and eliminate errors and omissions. At the same time, this article uses the method of theoretical analysis to analyze the existing liability patterns. Finally, we found, the principle of timely and adequate compensation for victims should be implemented in complex realities, and genetically modified damage should be dealt with and in accordance with the attributes of damage, causation and other factors. According to these factors, we will divide transboundary damage of genetically modified organisms into three types: intentional transboundary movement, unintentional transboundary movement and illegal transboundary movement. To divide the transboundary damage to genetically modified organisms and apply different liability patterns according to different situations should be the best approach.
{"title":"Liability for Transboundary Damage of Genetically Modified Organisms: Existing Patterns and Application","authors":"Chun-Yan Liu","doi":"10.4236/BLR.2021.121002","DOIUrl":"https://doi.org/10.4236/BLR.2021.121002","url":null,"abstract":"Normative analysis found that for the application of liability for transboundary damage to genetically modified organisms, there are currently three liability patterns: traditional state liability, private law liability, and liability for transboundary damage. It will not be an effective solution to the problem of penalty for damages, if the above liability patterns apply to transboundary damage of genetically modified organisms separately. And this approach is inconsistent with the legal principles of relevant international law and judicial practice. So this article uses method of legal interpretation to analyze and interpret the provisions of Convention on Biological Diversity, The Cartagena Protocol on Biosafety and The Nagoya-Kuala Lumpur Supplementary Protocol to clarify the true meaning of the provisions in depth, and eliminate errors and omissions. At the same time, this article uses the method of theoretical analysis to analyze the existing liability patterns. Finally, we found, the principle of timely and adequate compensation for victims should be implemented in complex realities, and genetically modified damage should be dealt with and in accordance with the attributes of damage, causation and other factors. According to these factors, we will divide transboundary damage of genetically modified organisms into three types: intentional transboundary movement, unintentional transboundary movement and illegal transboundary movement. To divide the transboundary damage to genetically modified organisms and apply different liability patterns according to different situations should be the best approach.","PeriodicalId":300394,"journal":{"name":"Beijing Law Review","volume":"128 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2021-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126877518","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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