With the entry into force of the new Patent Act (Official Gazette No. 16/2020), it is possible to protect a new form of intellectual property in the Republic of Croatia; the utility model. The aim of this paper is to investigate the characteristics of that institute, especially its scope of protection and in this regard to analyse the similarities and differences of the newly introduced institute in relation to similar industrial property rights that exist in comparative law. Furthermore, the paper will attempt to demonstrate the similarities and the differences between the protection of the utility model and the consensual patent that existed in the Republic of Croatia before the adoption of the new Act.
{"title":"Uporabni model – nov oblik intelektualnog vlasništva u Republici Hrvatskoj","authors":"Ana Rački Marinković","doi":"10.3935/zpfz.72.12.21","DOIUrl":"https://doi.org/10.3935/zpfz.72.12.21","url":null,"abstract":"With the entry into force of the new Patent Act (Official Gazette No. 16/2020), it is possible to protect a new form of intellectual property in the Republic of Croatia; the utility model. The aim of this paper is to investigate the characteristics of that institute, especially its scope of protection and in this regard to analyse the similarities and differences of the newly introduced institute in relation to similar industrial property rights that exist in comparative law. Furthermore, the paper will attempt to demonstrate the similarities and the differences between the protection of the utility model and the consensual patent that existed in the Republic of Croatia before the adoption of the new Act.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44584611","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 paper analyzes the new Article 65a of the Competition Act, introduced in 2021, in the light of the ECN+ Directive, which aims to ensure that natural persons, employees of a leniency applicant, are protected from sanctions in connection with their participation in the cartel to which the leniency application is related. It is generally considered that, in the absence of such protection, the use of the leniency programme, which ensures vigorous anti-cartel enforcement at the EU supranational level but also in some Member States, would be jeopardized. In this paper, we argue that there is a mismatch between the Croatian competition law system de lege lata and the way in which Article 23 of the ECN+ Directive was transposed in Article 65a of the Competition Act when it comes to protection from both administrative and criminal sanctions.
{"title":"Sankcioniranje fizičkih osoba za povrede tržišnog natjecanja, pokajnički program i novi čl. 65.a ZZTN-a","authors":"Jasminka Pecotić Kaufman","doi":"10.3935/zpfz.72.12.09","DOIUrl":"https://doi.org/10.3935/zpfz.72.12.09","url":null,"abstract":"This paper analyzes the new Article 65a of the Competition Act, introduced in 2021, in the light of the ECN+ Directive, which aims to ensure that natural persons, employees of a leniency applicant, are protected from sanctions in connection with their participation in the cartel to which the leniency application is related. It is generally considered that, in the absence of such protection, the use of the leniency programme, which ensures vigorous anti-cartel enforcement at the EU supranational level but also in some Member States, would be jeopardized. In this paper, we argue that there is a mismatch between the Croatian competition law system de lege lata and the way in which Article 23 of the ECN+ Directive was transposed in Article 65a of the Competition Act when it comes to protection from both administrative and criminal sanctions.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49578580","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 2020 earthquakes that struck the City of Zagreb and the areas of Sisačko-moslavačka, Karlovačka, Zagrebačka and Krapinsko-zagorska counties have resulted in damages of approximately 17 billion euro that must be repaired as quickly as possible. The Reconstruction Act envisages various forms of reconstruction the execution of which is dependent on an accurate and complete state of title, irrespective of whether such reconstruction is financed by public or private funds. The current state of the land register presents itself as inadequate, essentially jeopardizing reconstruction, for numerous reasons. The incongruence between the land register and the land cadaster makes it impossible to accurately publish property rights over land because the land registration system is dependent on current cadastral data. Land registration renewal proceedings, in progress today, are belated by decades, making them so much more complex due to continuing urban development and legal transactions that were remained uninterrupted by a dated land record. The socialist era in property law has during its various stages led to quick unrecorded mass transfers in the form of socializing land and creating new property rights over socially owned land that were only partially recorded in the land register, both due to inactivity of the governent and due to proactive measures of preventing registrations under spatial planning, building, and tax regulation that all unnecessarily involved the land register in the system of monitoring the application of public law. In the transitional period characterized by the transformation of social ownership and restitution property law changes were also unrecorded, occurring by way of a myriad of complicated and segmented provisions, while processes that would have resulted in an “orderly“ state of land records, such as expunging social ownership and the unification of land records, determining co-ownership shares for condominiums, linking land registers and deed registers, and renewing land registers, were absent or slow-paced. Concurrently, unrecorded transfers and universal successions were present during this entire period, causing multiple transfers and making it more difficult to determine an unbroken legal chain in transferring ownership. The starting point of the amended Reconstruction Act—that public financing is the answer to existing clouded title—is incorrect because co-owner participation is necessary for deciding to proceed with reconstruction, for initiating requisite proceedings, and for participating in the reconstruction by concluding and satisfying construction or reconstruction contracts. Even though the Reconstruction Act facilitated decision-making in co-ownership by modifying the requisite majority, the fundamental question of who participates in the majority or minority has remained open, and insufficient thought has been given to the position of other property right holders. This problem also reflects itself on th
{"title":"Potresna obnova i neizvjesno vlasništvo","authors":"Hano Ernst","doi":"10.3935/zpfz.72.12.15","DOIUrl":"https://doi.org/10.3935/zpfz.72.12.15","url":null,"abstract":"The 2020 earthquakes that struck the City of Zagreb and the areas of Sisačko-moslavačka, Karlovačka, Zagrebačka and Krapinsko-zagorska counties have resulted in damages of approximately 17 billion euro that must be repaired as quickly as possible. The Reconstruction Act envisages various forms of reconstruction the execution of which is dependent on an accurate and complete state of title, irrespective of whether such reconstruction is financed by public or private funds. The current state of the land register presents itself as inadequate, essentially jeopardizing reconstruction, for numerous reasons. The incongruence between the land register and the land cadaster makes it impossible to accurately publish property rights over land because the land registration system is dependent on current cadastral data. Land registration renewal proceedings, in progress today, are belated by decades, making them so much more complex due to continuing urban development and legal transactions that were remained uninterrupted by a dated land record. The socialist era in property law has during its various stages led to quick unrecorded mass transfers in the form of socializing land and creating new property rights over socially owned land that were only partially recorded in the land register, both due to inactivity of the governent and due to proactive measures of preventing registrations under spatial planning, building, and tax regulation that all unnecessarily involved the land register in the system of monitoring the application of public law. In the transitional period characterized by the transformation of social ownership and restitution property law changes were also unrecorded, occurring by way of a myriad of complicated and segmented provisions, while processes that would have resulted in an “orderly“ state of land records, such as expunging social ownership and the unification of land records, determining co-ownership shares for condominiums, linking land registers and deed registers, and renewing land registers, were absent or slow-paced. Concurrently, unrecorded transfers and universal successions were present during this entire period, causing multiple transfers and making it more difficult to determine an unbroken legal chain in transferring ownership. The starting point of the amended Reconstruction Act—that public financing is the answer to existing clouded title—is incorrect because co-owner participation is necessary for deciding to proceed with reconstruction, for initiating requisite proceedings, and for participating in the reconstruction by concluding and satisfying construction or reconstruction contracts. Even though the Reconstruction Act facilitated decision-making in co-ownership by modifying the requisite majority, the fundamental question of who participates in the majority or minority has remained open, and insufficient thought has been given to the position of other property right holders. This problem also reflects itself on th","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46059858","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 notion of the written form of contracts and other legal transactions is analyzed in this paper. Historical development of formal legal transactions as well as the comparative law dimension of the form of contracts and other legal transactions are briefly addressed. The possibilities to acknowledge the legal effects of the written form in the case of electronic declarations of will are also analyzed. A particular emphasis is placed on different possibilities to interpret the relevant provisions of the Civil Obligations Act regarding the fulfillment of requirements for the written form if a contract is concluded electronically. The provisions of the German BGB are also discussed because of the fact that German law is to a larger extent adapted to the electronic declaration of will (declaration of will in electronic form and declaration of will in text form). A part of the paper relates to situations in which the parties to a contract agree that they shall conduct their business exclusively in written form. Although the provisions on the written form are of a mandatory nature, considering that they regulate conditions for the validity of contract, when the parties to a contract agree that a certain contract must be in writing, they actually exploit the freedom of contract principle. This fact should be borne in mind when parties agree that any modifications to or rescission of a contract must be in writing. If this is the case, the will of the parties should be taken into the account, because it is in accordance with the pacta sunt servanda principle, and there are no mandatory provisions that would nullify such an agreement. Naturally, the validity of such agreements can be challenged if they are contrary to the good faith principle or the prohibition of the abuse of right principle.
{"title":"Pisani oblik ugovora i drugih pravnih poslova","authors":"Saša Nikšić","doi":"10.3935/zpfz.72.12.08","DOIUrl":"https://doi.org/10.3935/zpfz.72.12.08","url":null,"abstract":"The notion of the written form of contracts and other legal transactions is analyzed in this paper. Historical development of formal legal transactions as well as the comparative law dimension of the form of contracts and other legal transactions are briefly addressed. The possibilities to acknowledge the legal effects of the written form in the case of electronic declarations of will are also analyzed. A particular emphasis is placed on different possibilities to interpret the relevant provisions of the Civil Obligations Act regarding the fulfillment of requirements for the written form if a contract is concluded electronically. The provisions of the German BGB are also discussed because of the fact that German law is to a larger extent adapted to the electronic declaration of will (declaration of will in electronic form and declaration of will in text form). A part of the paper relates to situations in which the parties to a contract agree that they shall conduct their business exclusively in written form. Although the provisions on the written form are of a mandatory nature, considering that they regulate conditions for the validity of contract, when the parties to a contract agree that a certain contract must be in writing, they actually exploit the freedom of contract principle. This fact should be borne in mind when parties agree that any modifications to or rescission of a contract must be in writing. If this is the case, the will of the parties should be taken into the account, because it is in accordance with the pacta sunt servanda principle, and there are no mandatory provisions that would nullify such an agreement. Naturally, the validity of such agreements can be challenged if they are contrary to the good faith principle or the prohibition of the abuse of right principle.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49455641","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 trader and the commercial contract are the basic notions of the commercial law. The trader is defined in various Croatian statutes so many times that it is questionable whether it represents a single notion. Everything is more complicated by the notion of undertaking which is defined in a similar multitude of statutes. Although the legislator is authorized to introduce as many definitions as it wants, the current state of affairs does not contribute to the transparency and legal certainty. The paper tries to establish firm criteria for a possible future systematization. Two models are singled out, based on the criterion whether a trader is considered as such in all legal transactions (an absolute model) or just for the needs of a specific transaction (a functional, transactional model). The chosen model affects the definition of the commercial contract. If the commercial contract begins with an absolute model of a trader, it is advisable that the contract falls within trader’s commercial activity. The Croatian law, however, adopted an asymmetric definition, which requires that the contract falls within the commercial activity of only one of the traders.
{"title":"Trgovac, poduzetnik i trgovački ugovori","authors":"Antun Bilić","doi":"10.3935/zpfz.72.12.19","DOIUrl":"https://doi.org/10.3935/zpfz.72.12.19","url":null,"abstract":"The trader and the commercial contract are the basic notions of the commercial law. The trader is defined in various Croatian statutes so many times that it is questionable whether it represents a single notion. Everything is more complicated by the notion of undertaking which is defined in a similar multitude of statutes. Although the legislator is authorized to introduce as many definitions as it wants, the current state of affairs does not contribute to the transparency and legal certainty. The paper tries to establish firm criteria for a possible future systematization. Two models are singled out, based on the criterion whether a trader is considered as such in all legal transactions (an absolute model) or just for the needs of a specific transaction (a functional, transactional model). The chosen model affects the definition of the commercial contract. If the commercial contract begins with an absolute model of a trader, it is advisable that the contract falls within trader’s commercial activity. The Croatian law, however, adopted an asymmetric definition, which requires that the contract falls within the commercial activity of only one of the traders.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-06-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49056910","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 Albanian legislature has been slow to comprehensively regulate and suitably penalize cruelty towards animals. During the second decade of building a democratic legal system, adopted legislation mandated administrative penalties for only a small number of acts of commission or omission that constituted cruelty to animals. A petition from 37,527 electors obliged the Committee of Laws at the Albanian Parliament to deliberate on the criminalization of animal cruelty for the first time in November of 2017. Two years later, on 18 July 2019, the Albanian Criminal Code was amended with six provisions criminalizing animal cruelty. How has context and other factors shaped the law in Albania with regards to animal cruelty? Authors aim to respond to this question through a functional method with a problem-solving contextual approach, engaging in an in-depth legal evaluation of the Albanian legislation and comparative analysis on the topic. This work draws on deliberations from eight meetings of the Committee of Laws and consultation with nineteen Members of the Parliament, civil servants in responsible institutions, and representatives from civil society, to clarify how society’s effort shaped the criminalization of cruelty towards animals in Albania. The discussion proceeds with a comparative legal analysis between proposed legislation and adopted changes in the Criminal Code with legislation in certain EU Member States and EU acquis. Concerns linger about whether criminalizing a behavior such as animal cruelty is the appropriate way to reduce the occurrence of this offence.
{"title":"Criminalization of Animal Cruelty in Context: An Albanian Perspective","authors":"Nita K Shala, Avni Puka, G. Pratola","doi":"10.3935/zpfz.71.6.05","DOIUrl":"https://doi.org/10.3935/zpfz.71.6.05","url":null,"abstract":"The Albanian legislature has been slow to comprehensively regulate and suitably penalize cruelty towards animals. During the second decade of building a democratic legal system, adopted legislation mandated administrative penalties for only a small number of acts of commission or omission that constituted cruelty to animals. A petition from 37,527 electors obliged the Committee of Laws at the Albanian Parliament to deliberate on the criminalization of animal cruelty for the first time in November of 2017. Two years later, on 18 July 2019, the Albanian Criminal Code was amended with six provisions criminalizing animal cruelty. How has context and other factors shaped the law in Albania with regards to animal cruelty? Authors aim to respond to this question through a functional method with a problem-solving contextual approach, engaging in an in-depth legal evaluation of the Albanian legislation and comparative analysis on the topic. This work draws on deliberations from eight meetings of the Committee of Laws and consultation with nineteen Members of the Parliament, civil servants in responsible institutions, and representatives from civil society, to clarify how society’s effort shaped the criminalization of cruelty towards animals in Albania. The discussion proceeds with a comparative legal analysis between proposed legislation and adopted changes in the Criminal Code with legislation in certain EU Member States and EU acquis. Concerns linger about whether criminalizing a behavior such as animal cruelty is the appropriate way to reduce the occurrence of this offence.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45728051","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 analyzes the constitutional provisions and practices of the Kosovar process of forming a government in two scenarios: after a parliamentary election, and after a motion of no confidence. The factors that most prominently complicate this process are the proportional electoral system, extreme party pluralism, and ambiguous constitutional provisions. Leaving aside the first two factors, which have thus far resisted efforts to change them, the authors claim that the constitutional law dealing with the government-formation process has undergone both procedural and substantive changes as a result of interpretations and decisions by the Constitutional Court. The authors further note that these changes are constitutional constructions, rather than constitutional interpretations, and describe the novel, resultant practice as legitimized without amendment. These constitutional interpretations and constructions, their possible alternatives, and the relevant constitutional provisions are analyzed through doctrinal legal research. That constitutional judgments can be reinterpreted and abused by interim, and office-seeking (rather than policy-seeking) political coalitions seems a condition poised to engender future instability; therefore, the authors hold that the amendment of the constitution is the best insurance against political and constitutional crises when it comes to forming a government, either after elections or with the same legislature. The authors hope that this paper will contribute to the enrichment of the constitutional practice of forming parliamentary governments and the development of the doctrine of constitutional interpretation.
{"title":"Constitutional Interpretation or Construction of the Government-Formation Process in Kosovo","authors":"Behar Selimi, Murat Jashari","doi":"10.3935/zpfz.71.6.03","DOIUrl":"https://doi.org/10.3935/zpfz.71.6.03","url":null,"abstract":"This article analyzes the constitutional provisions and practices of the Kosovar process of forming a government in two scenarios: after a parliamentary election, and after a motion of no confidence. The factors that most prominently complicate this process are the proportional electoral system, extreme party pluralism, and ambiguous constitutional provisions. Leaving aside the first two factors, which have thus far resisted efforts to change them, the authors claim that the constitutional law dealing with the government-formation process has undergone both procedural and substantive changes as a result of interpretations and decisions by the Constitutional Court. The authors further note that these changes are constitutional constructions, rather than constitutional interpretations, and describe the novel, resultant practice as legitimized without amendment. These constitutional interpretations and constructions, their possible alternatives, and the relevant constitutional provisions are analyzed through doctrinal legal research. That constitutional judgments can be reinterpreted and abused by interim, and office-seeking (rather than policy-seeking) political coalitions seems a condition poised to engender future instability; therefore, the authors hold that the amendment of the constitution is the best insurance against political and constitutional crises when it comes to forming a government, either after elections or with the same legislature. The authors hope that this paper will contribute to the enrichment of the constitutional practice of forming parliamentary governments and the development of the doctrine of constitutional interpretation.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46195726","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}
By examining the nature of the time limit for the right to compensation for damage caused by defective products (Article 11 of Directive 85/374/EEC – Product Liability Directive) in relation to the Slovak legal order (Act no. 294/1999 Coll. on Liability for defective products implementing the EU Directive), the authors address the question of the consequences of the conflict between the different language versions of the Directive. At the same time, they examine whether the semantic identity of the different linguistic expressions and the conceptual autonomy of a term of EU law do not allow for different legal consequences in different implementation environments.
{"title":"Conceptual Autonomy and Semantic Identity in EU Law: Balancing on the Edge of Prescription and Extinguishment of a Right","authors":"M. Novotná, Jozef Štefanko","doi":"10.3935/zpfz.71.6.02","DOIUrl":"https://doi.org/10.3935/zpfz.71.6.02","url":null,"abstract":"By examining the nature of the time limit for the right to compensation for damage caused by defective products (Article 11 of Directive 85/374/EEC – Product Liability Directive) in relation to the Slovak legal order (Act no. 294/1999 Coll. on Liability for defective products implementing the EU Directive), the authors address the question of the consequences of the conflict between the different language versions of the Directive. At the same time, they examine whether the semantic identity of the different linguistic expressions and the conceptual autonomy of a term of EU law do not allow for different legal consequences in different implementation environments.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45341223","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 paper addresses the role of the International Labour Organization (ILO) in the consideration of cases and in the interpretation of international human rights instruments by the Committee on Economic, Social and Cultural Rights and the European Court of Human Rights. As labour rights form part of internationally recognized human rights the author attempts to evaluate the penetration of ILO standards and legal reasoning into the adjudication of human rights cases and interpretation of human rights instruments by other international bodies. The analysis of the jurisprudence of the CESCR and the ECtHR demonstrates that the ILO standards and the legal reasoning are always referred to in the cases related to labour rights and serve as a source of “substantial filling” of both the International Covenant on Economic, Social and Cultural Rights and the European Convention on Human Rights.
{"title":"ILO Contributions to the Jurisprudence of International Human Rights Bodies","authors":"E. Sychenko","doi":"10.3935/zpfz.71.6.04","DOIUrl":"https://doi.org/10.3935/zpfz.71.6.04","url":null,"abstract":"The paper addresses the role of the International Labour Organization (ILO) in the consideration of cases and in the interpretation of international human rights instruments by the Committee on Economic, Social and Cultural Rights and the European Court of Human Rights. As labour rights form part of internationally recognized human rights the author attempts to evaluate the penetration of ILO standards and legal reasoning into the adjudication of human rights cases and interpretation of human rights instruments by other international bodies. The analysis of the jurisprudence of the CESCR and the ECtHR demonstrates that the ILO standards and the legal reasoning are always referred to in the cases related to labour rights and serve as a source of “substantial filling” of both the International Covenant on Economic, Social and Cultural Rights and the European Convention on Human Rights.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48529152","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 concept of the rule of law, at least as understood in the discourse on national law, includes the element of compulsory adjudication. At the same time the formulated norm on universal compulsory adjudication is missing in general international law, as well as in the particular regional order regulating relations of European states. Although this gap between the concept and practice could be perceived as an intriguing theoretical and practical problem which attracts thoughtful analysis, this is not the case in contemporary debates. In the practical discourse on the development of general international law there has been no progress regarding the implementation of the concept for centuries. The progress of the European order, even if it manifests signs of an emerging norm on compulsory international adjudication, still has to be confirmed by formulated norms. The reluctance to resolve this gap between the concept and practice causes practical problems e.g., tensions between states. In the theoretical discourse the problem already exists by the very fact of insufficient scientific attention given to this problem. The central issue for a consistent legal theory is the explanation of international law without compulsory adjudication. The purpose of this contribution is to analyse the arguments in favour of compulsory adjudication in international law. The arguments are presented by following the insights on this issue provided by Kelsen and Lauterpacht. Theoretical questions to be answered are the following: a) what are the theoretical assumptions on which the concept of compulsory international adjudication is grounded; and b) what are the objections to these assumptions from the realistic approach to law.
{"title":"A Jurisprudential Attempt at Rule of Law Creation: An Analysis of Theoretical Assumptions for Compulsory International Adjudication and Realistic Challenges","authors":"Marko Krešić","doi":"10.3935/zpfz.71.6.01","DOIUrl":"https://doi.org/10.3935/zpfz.71.6.01","url":null,"abstract":"The concept of the rule of law, at least as understood in the discourse on national law, includes the element of compulsory adjudication. At the same time the formulated norm on universal compulsory adjudication is missing in general international law, as well as in the particular regional order regulating relations of European states. Although this gap between the concept and practice could be perceived as an intriguing theoretical and practical problem which attracts thoughtful analysis, this is not the case in contemporary debates. In the practical discourse on the development of general international law there has been no progress regarding the implementation of the concept for centuries. The progress of the European order, even if it manifests signs of an emerging norm on compulsory international adjudication, still has to be confirmed by formulated norms. The reluctance to resolve this gap between the concept and practice causes practical problems e.g., tensions between states. In the theoretical discourse the problem already exists by the very fact of insufficient scientific attention given to this problem. The central issue for a consistent legal theory is the explanation of international law without compulsory adjudication. The purpose of this contribution is to analyse the arguments in favour of compulsory adjudication in international law. The arguments are presented by following the insights on this issue provided by Kelsen and Lauterpacht. Theoretical questions to be answered are the following: a) what are the theoretical assumptions on which the concept of compulsory international adjudication is grounded; and b) what are the objections to these assumptions from the realistic approach to law.","PeriodicalId":34908,"journal":{"name":"Zbornik Pravnog Fakulteta u Zagrebu","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-02-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49051982","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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