Pub Date : 2021-12-28DOI: 10.24818/tbj/2021/11/3.07
T. Malatinec
Green public procurement is a voluntary tool through which public procurers can contribute to the objectives of environmental policy. The legal framework and public policy of green procurement is covered by the European Union. The main goal is to contribute to the consideration of environmental characteristics in public purchases as well as environmental management and the life-cycle costs of the goods, services and work. However, the objectives of the legal framework and the policy to promote green public procurement are often not achieved due to the barriers posed by economic practice. The aim of the article is to analyze the local barriers in the effective use of green public procurement in Slovakia. The processing of results is based on the annual evaluation reports to the National Action Plan for Green Public Procurement in Slovakia for 2016-2020. Identified local barriers include financial constraints on contracting authorities and a preference for evaluating contracts based on the lowest price criterion, insufficiently built administrative (personal) capacity to implement green public procurement, fear of discrimination in incorporating environmental criteria into tender documents and subsequent sanctions from control bodies. Last but not least, the voluntary application of green public procurement at regional and local level is also included among the barriers in the efficient use of this tool in practice.
{"title":"Local barriers in the efficient\u0000use of Green Public Procurement - case of Slovaki","authors":"T. Malatinec","doi":"10.24818/tbj/2021/11/3.07","DOIUrl":"https://doi.org/10.24818/tbj/2021/11/3.07","url":null,"abstract":"Green public procurement is a voluntary tool through which public procurers can\u0000contribute to the objectives of environmental policy. The legal framework and public policy\u0000of green procurement is covered by the European Union. The main goal is to contribute to\u0000the consideration of environmental characteristics in public purchases as well as\u0000environmental management and the life-cycle costs of the goods, services and work.\u0000However, the objectives of the legal framework and the policy to promote green public\u0000procurement are often not achieved due to the barriers posed by economic practice. The aim\u0000of the article is to analyze the local barriers in the effective use of green public procurement\u0000in Slovakia. The processing of results is based on the annual evaluation reports to the\u0000National Action Plan for Green Public Procurement in Slovakia for 2016-2020. Identified\u0000local barriers include financial constraints on contracting authorities and a preference for\u0000evaluating contracts based on the lowest price criterion, insufficiently built administrative\u0000(personal) capacity to implement green public procurement, fear of discrimination in\u0000incorporating environmental criteria into tender documents and subsequent sanctions from\u0000control bodies. Last but not least, the voluntary application of green public procurement at\u0000regional and local level is also included among the barriers in the efficient use of this tool in\u0000practice.","PeriodicalId":41903,"journal":{"name":"Juridical Tribune-Tribuna Juridica","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2021-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44544262","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}
Pub Date : 2021-12-28DOI: 10.24818/tbj/2021/11/3.05
Leonid Tymchenko, V. Kononenko
In the study of the substantive legal grounds for the resolution of territorial disputes, the judicial form is characterized by the priority of the grounds of legal title (agreemental title, uti possidetis) based on international treaties, or legal acts of the state possessing sovereignty over the grounds of actual title (effective occupation and governning of the territory, tacit recognition, prescriptional acquisition). Like the initial occupation, the acquisition of territory on the basis of prescription has a long and effective occupation of territory as a prerequisite. The possession of alien or contested territory without a treaty may be legal and enforceable only when there is an inviolable, uninterrupted and undisputed exercise of possession. Where the disputable territory is in fact administrated by a state other than that which holds title, the International Court of Justice gives preference to the title holder.
{"title":"Territory of state as indivisible whole and the norms of Constitution","authors":"Leonid Tymchenko, V. Kononenko","doi":"10.24818/tbj/2021/11/3.05","DOIUrl":"https://doi.org/10.24818/tbj/2021/11/3.05","url":null,"abstract":"In the study of the substantive legal grounds for the resolution of territorial\u0000disputes, the judicial form is characterized by the priority of the grounds of legal title\u0000(agreemental title, uti possidetis) based on international treaties, or legal acts of the state\u0000possessing sovereignty over the grounds of actual title (effective occupation and\u0000governning of the territory, tacit recognition, prescriptional acquisition). Like the initial\u0000occupation, the acquisition of territory on the basis of prescription has a long and effective\u0000occupation of territory as a prerequisite. The possession of alien or contested territory\u0000without a treaty may be legal and enforceable only when there is an inviolable,\u0000uninterrupted and undisputed exercise of possession. Where the disputable territory is in\u0000fact administrated by a state other than that which holds title, the International Court of\u0000Justice gives preference to the title holder.","PeriodicalId":41903,"journal":{"name":"Juridical Tribune-Tribuna Juridica","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2021-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46835638","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}
Pub Date : 2021-12-28DOI: 10.24818/tbj/2021/11/3.06
J. Handrlica
Traditionally, the scholarship of administrative law has paid only very limited attention to the phaenomenon of extraterritoriality. Hereby, the scholarship has reflected the theoretical considerations concerning the sovereignty of the State, which have implied that administrative authorities execute their functions exclusively in the territory of the State. At the same time, the scholarship of international public law has traditionally acknowledged that – as based on a corresponding international agreement – a State may allow the administrative authorities of a foreign State to execute certain functions in its own territory. This article aims to reconcile these two approaches, demonstrating that the phaenomenon of extraterritoriality has emerged to represent an integral part of the system of administrative law in various jurisdictions. This article also argues that this perception of administrative law actually fails to represent any new feature, but is based on traditional concepts existing in the public law of Europe. Thus, extraterritoriality must be considered as a part of the ius publicum europaeum commune.
{"title":"Paradise of territoriality lost:\u0000rethinking extraterritoriality in administrative law","authors":"J. Handrlica","doi":"10.24818/tbj/2021/11/3.06","DOIUrl":"https://doi.org/10.24818/tbj/2021/11/3.06","url":null,"abstract":"Traditionally, the scholarship of administrative law has paid only very limited\u0000attention to the phaenomenon of extraterritoriality. Hereby, the scholarship has reflected the\u0000theoretical considerations concerning the sovereignty of the State, which have implied that\u0000administrative authorities execute their functions exclusively in the territory of the State. At\u0000the same time, the scholarship of international public law has traditionally acknowledged\u0000that – as based on a corresponding international agreement – a State may allow the\u0000administrative authorities of a foreign State to execute certain functions in its own territory.\u0000This article aims to reconcile these two approaches, demonstrating that the phaenomenon of\u0000extraterritoriality has emerged to represent an integral part of the system of administrative\u0000law in various jurisdictions. This article also argues that this perception of administrative\u0000law actually fails to represent any new feature, but is based on traditional concepts existing\u0000in the public law of Europe. Thus, extraterritoriality must be considered as a part of the ius\u0000publicum europaeum commune.","PeriodicalId":41903,"journal":{"name":"Juridical Tribune-Tribuna Juridica","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2021-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48419325","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}
Pub Date : 2021-12-28DOI: 10.24818/tbj/2021/11/3.02
Nina Gumzej
The paper analyses rules pertinent for examination of national data retention measures regulating data processing activities of providers of electronic communication services following invalidation of the Data Retention Directive in 2014, on which subject the CJEU issued a total of five judgments up until June 2021. Focus of this analysis is the issue of applicability of EU law as interpreted in the CJEU case law, most specifically Article 15, paragraph 1 of the ePrivacy Directive containing legal safeguards for the restrictions of rights and obligations in that directive on the confidentiality of communications as well as the processing of traffic and location data. Such restrictions are as a rule manifested in different national data retention measures, which may pursue law enforcement and public security, as well as national security objectives. This examination is supported also by analysis of rules on the scope of ePrivacy Directive and its relationship with the general personal data protection framework. Overall findings in the paper provide a frame for further detailed research on the topic of future regulation of retention measures at national/EU level (Proposal for ePrivacy Regulation, possible new EU data retention legislation) and a comparative assessment of relevant CJEU jurisprudence with that of the European Court of Human Rights in respect of compatibility of retention measures with the guarantees of fundamental rights and freedoms and allowed restrictions thereof in the European legal system.
{"title":"Applicability of ePrivacy Directive to national data retention measures\u0000following invalidation of the Data Retention Directive","authors":"Nina Gumzej","doi":"10.24818/tbj/2021/11/3.02","DOIUrl":"https://doi.org/10.24818/tbj/2021/11/3.02","url":null,"abstract":"The paper analyses rules pertinent for examination of national data retention\u0000measures regulating data processing activities of providers of electronic communication\u0000services following invalidation of the Data Retention Directive in 2014, on which subject the\u0000CJEU issued a total of five judgments up until June 2021. Focus of this analysis is the issue\u0000of applicability of EU law as interpreted in the CJEU case law, most specifically Article 15,\u0000paragraph 1 of the ePrivacy Directive containing legal safeguards for the restrictions of\u0000rights and obligations in that directive on the confidentiality of communications as well as\u0000the processing of traffic and location data. Such restrictions are as a rule manifested in\u0000different national data retention measures, which may pursue law enforcement and public\u0000security, as well as national security objectives. This examination is supported also by\u0000analysis of rules on the scope of ePrivacy Directive and its relationship with the general\u0000personal data protection framework. Overall findings in the paper provide a frame for\u0000further detailed research on the topic of future regulation of retention measures at\u0000national/EU level (Proposal for ePrivacy Regulation, possible new EU data retention\u0000legislation) and a comparative assessment of relevant CJEU jurisprudence with that of the\u0000European Court of Human Rights in respect of compatibility of retention measures with the\u0000guarantees of fundamental rights and freedoms and allowed restrictions thereof in the\u0000European legal system.","PeriodicalId":41903,"journal":{"name":"Juridical Tribune-Tribuna Juridica","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2021-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49552077","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}
Pub Date : 2021-12-28DOI: 10.24818/tbj/2021/11/3.03
V. Tokareva, I. Davydova, Elena Adamova
The aim of this paper is to consider the mechanisms of legalization of use orphan works, based on a comparative analysis of the legal regulation in the United States, the EU and European countries; identify priority ways to reform and to develop proposals for improving copyright law in Ukraine. In the first section the concept of the orphan works and the circumstances which caused emergence of the orphan works are revealed. It has been established that the problem of orphan works mostly concerns works whose authors died and heirs cannot be found. In the second section the models of legalization of orphan works in the United States, Canada, the EU and European countries are analyzed and these interferences formed a proposal for Ukrainian legislation. In the third section the background of development of legislation of orphan works in Ukraine are studied. The neсessity to study the legal regulation of the United States, the EU and European countries in light of the recodification of the Civil law of Ukraine and seeking way of its renovation is substantiated. Developing effective mechanisms of using orphan works are stated to become relevant in the process of digitization of libraries’ collections and to have gained a new momentum in recent years. Its result has been provided open access to the works on the Internet.
{"title":"Legal problems of the use of orphan works in digital age","authors":"V. Tokareva, I. Davydova, Elena Adamova","doi":"10.24818/tbj/2021/11/3.03","DOIUrl":"https://doi.org/10.24818/tbj/2021/11/3.03","url":null,"abstract":"The aim of this paper is to consider the mechanisms of legalization of use orphan\u0000works, based on a comparative analysis of the legal regulation in the United States, the EU\u0000and European countries; identify priority ways to reform and to develop proposals for\u0000improving copyright law in Ukraine. In the first section the concept of the orphan works and\u0000the circumstances which caused emergence of the orphan works are revealed. It has been\u0000established that the problem of orphan works mostly concerns works whose authors died and\u0000heirs cannot be found. In the second section the models of legalization of orphan works in\u0000the United States, Canada, the EU and European countries are analyzed and these\u0000interferences formed a proposal for Ukrainian legislation. In the third section the\u0000background of development of legislation of orphan works in Ukraine are studied. The\u0000neсessity to study the legal regulation of the United States, the EU and European countries\u0000in light of the recodification of the Civil law of Ukraine and seeking way of its renovation is\u0000substantiated. Developing effective mechanisms of using orphan works are stated to become\u0000relevant in the process of digitization of libraries’ collections and to have gained a new\u0000momentum in recent years. Its result has been provided open access to the works on the\u0000Internet.","PeriodicalId":41903,"journal":{"name":"Juridical Tribune-Tribuna Juridica","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2021-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46246536","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}
Pub Date : 2021-12-28DOI: 10.24818/tbj/2021/11/3.08
O. Shevchuk, N. Matyukhina, O. Babaieva, Anatoliy Dudnikov, Olena Volianska
Legal support of human security in the field of health care includes the guarantee, protection and protection of rights and freedoms in the field of health care, which is the main function, as well as the goal and duty of the state. This paper describes certain aspects of the legal regulation of the implementation of the "human right to security in the health sector" and the problems of its enforcement. The research methodology is based on a system of methods of the philosophical, general scientific and special scientific level. The main goal of this scientific article is to define the concept‚principles‚ types and directions of implementation of the “human right to safety” in the concept of “the right to health protection”. The general principles of the implementation of the “human right to security in the health sector” are disclosed. It is emphasized that the legal mechanism for the implementation of the “human right to security in the healthcare sector” is the activity of legal entities, lawmaking and law enforcement agencies, and the existing legal norms governing their activities in the healthcare sector. The investigated human right to safety should be understood as a complex of rights related to the protection of the patient's legitimate interests in the healthcare sector from unlawful encroachments and threats.. The author's understanding of the definition of "patients' right to safety". It is argued that human security in the field of health care belongs to the basic needs of a person - the implementation of this need is determined by the level of development of a country, its economic and cultural components, the level and quality of life of a person living in this country, an effective health care system. It is concluded that the main goal of legal ensuring human security in the healthcare sector is to create the minimum necessary (safe) conditions for the implementation of these rights and obligations when receiving medical services.
{"title":"The human right to security in the implementation\u0000of the concept of the \"right to health protection\"","authors":"O. Shevchuk, N. Matyukhina, O. Babaieva, Anatoliy Dudnikov, Olena Volianska","doi":"10.24818/tbj/2021/11/3.08","DOIUrl":"https://doi.org/10.24818/tbj/2021/11/3.08","url":null,"abstract":"Legal support of human security in the field of health care includes the guarantee,\u0000protection and protection of rights and freedoms in the field of health care, which is the main\u0000function, as well as the goal and duty of the state. This paper describes certain aspects of the\u0000legal regulation of the implementation of the \"human right to security in the health sector\"\u0000and the problems of its enforcement. The research methodology is based on a system of\u0000methods of the philosophical, general scientific and special scientific level. The main goal of\u0000this scientific article is to define the concept‚principles‚ types and directions of\u0000implementation of the “human right to safety” in the concept of “the right to health\u0000protection”. The general principles of the implementation of the “human right to security in\u0000the health sector” are disclosed. It is emphasized that the legal mechanism for the\u0000implementation of the “human right to security in the healthcare sector” is the activity of\u0000legal entities, lawmaking and law enforcement agencies, and the existing legal norms\u0000governing their activities in the healthcare sector. The investigated human right to safety\u0000should be understood as a complex of rights related to the protection of the patient's\u0000legitimate interests in the healthcare sector from unlawful encroachments and threats.. The\u0000author's understanding of the definition of \"patients' right to safety\". It is argued that human\u0000security in the field of health care belongs to the basic needs of a person - the implementation\u0000of this need is determined by the level of development of a country, its economic and cultural\u0000components, the level and quality of life of a person living in this country, an effective health\u0000care system. It is concluded that the main goal of legal ensuring human security in the\u0000healthcare sector is to create the minimum necessary (safe) conditions for the\u0000implementation of these rights and obligations when receiving medical services.","PeriodicalId":41903,"journal":{"name":"Juridical Tribune-Tribuna Juridica","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2021-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42761318","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}
Pub Date : 2021-12-28DOI: 10.24818/tbj/2021/11/3.04
Dan Claudiu Dănișor, Mădălina-Cristina Dănișor
Modern society is based on the predominance of organic solidarity over mechanical solidarity and, consequently, on the predominance of the law, which ensures cooperation between autonomous subjects from repressive law, which sanctions, through penalty, any deviation from the standards of the common conscience. Modern society is “civilized”, i.e. it is firstly and foremost based on “civil” law, the repressive law only being exceptional, which translates into three principles: that of the subsidiarity of criminal law, that of the necessity and legality of offences and penalties, and that of the additional protection of individual freedom when the subject is criminally charged. The consequence thereof is that, in modern liberal democracies, all repressive law is criminal, that any charge which may lead to the application of a repressive sanction is a criminal charge and that the law-maker cannot assign to the administration the competence regarding the application of repressive sanctions. Under these circumstances, the transformation of some repressive norms into norms of administrative law is a violation of the fundamental principles that structure the legal order of modern liberal states. Nonetheless, this type of practice is becoming more common. In order to ensure individual freedom, this tendency must be corrected. As politicians are not willing to do so, naturally this is a task for the judicial courts, that can rely for this endeavour on the European Court of Human Rights’ constructive jurisprudence.
{"title":"Modern solidarity and administrative repression","authors":"Dan Claudiu Dănișor, Mădălina-Cristina Dănișor","doi":"10.24818/tbj/2021/11/3.04","DOIUrl":"https://doi.org/10.24818/tbj/2021/11/3.04","url":null,"abstract":"Modern society is based on the predominance of organic solidarity over mechanical\u0000solidarity and, consequently, on the predominance of the law, which ensures cooperation\u0000between autonomous subjects from repressive law, which sanctions, through penalty, any\u0000deviation from the standards of the common conscience. Modern society is “civilized”, i.e. it\u0000is firstly and foremost based on “civil” law, the repressive law only being exceptional, which\u0000translates into three principles: that of the subsidiarity of criminal law, that of the necessity\u0000and legality of offences and penalties, and that of the additional protection of individual\u0000freedom when the subject is criminally charged. The consequence thereof is that, in modern\u0000liberal democracies, all repressive law is criminal, that any charge which may lead to the\u0000application of a repressive sanction is a criminal charge and that the law-maker cannot\u0000assign to the administration the competence regarding the application of repressive\u0000sanctions. Under these circumstances, the transformation of some repressive norms into\u0000norms of administrative law is a violation of the fundamental principles that structure the\u0000legal order of modern liberal states. Nonetheless, this type of practice is becoming more\u0000common. In order to ensure individual freedom, this tendency must be corrected. As\u0000politicians are not willing to do so, naturally this is a task for the judicial courts, that can\u0000rely for this endeavour on the European Court of Human Rights’ constructive jurisprudence.","PeriodicalId":41903,"journal":{"name":"Juridical Tribune-Tribuna Juridica","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2021-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42044763","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}
Pub Date : 2021-12-28DOI: 10.24818/tbj/2021/11/3.01
Adina Ponta
After the international legal community widely endorsed the application of international law to cyberspace, many open questions remain on the concrete interpretation of existing rights and obligations to the cyber realm. In pursuit of its mandate to promote human rights and conflict prevention, the OSCE can play a major role to support operationalization of international law and application of existing principles to cyberspace. This paper examines some key steps in the aftermath of the creation of norms of behavior, and transparency and confidence-building measures. After a brief analysis of the normcreation process, this piece identifies several pressing cybersecurity challenges on the international landscape, and offers suggestions for consolidating the voluntary non-binding norms States agreed upon. Using lessons learned from other domains, the analysis will focus on mechanisms of building further stability and transparency in cyberspace, in particular by reference to the due diligence principle and States’ human rights obligations.
{"title":"Legal instability in cyberspace and OSCE’s mitigation role","authors":"Adina Ponta","doi":"10.24818/tbj/2021/11/3.01","DOIUrl":"https://doi.org/10.24818/tbj/2021/11/3.01","url":null,"abstract":"After the international legal community widely endorsed the application of\u0000international law to cyberspace, many open questions remain on the concrete interpretation\u0000of existing rights and obligations to the cyber realm. In pursuit of its mandate to promote\u0000human rights and conflict prevention, the OSCE can play a major role to support\u0000operationalization of international law and application of existing principles to cyberspace.\u0000This paper examines some key steps in the aftermath of the creation of norms of behavior,\u0000and transparency and confidence-building measures. After a brief analysis of the normcreation process, this piece identifies several pressing cybersecurity challenges on the\u0000international landscape, and offers suggestions for consolidating the voluntary non-binding\u0000norms States agreed upon. Using lessons learned from other domains, the analysis will focus\u0000on mechanisms of building further stability and transparency in cyberspace, in particular by\u0000reference to the due diligence principle and States’ human rights obligations.","PeriodicalId":41903,"journal":{"name":"Juridical Tribune-Tribuna Juridica","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2021-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47949838","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}
Pub Date : 2021-10-30DOI: 10.24818/tbj/2021/11/sp/04
M. Najman
In the current legal discourse, the concept of dignity is becoming more common. It is considered the highest axiom, which every violation deserves to be condemned. However, we forget about the conceptual basis of a given concept, its history and original overtones. We do not remember that certain concepts are created solely to systematize the created or existing social and political situations. The purpose of the article is to attempt to answer the question of how to understand the concept of dignity in legal discourse. It is worth bearing in mind that dignity is indicated as "this" (value or maybe something else) from which human rights originate. That is why it should be rejected as a value because the value itself is not a value. However, one must opt for an objective understanding of dignity, rejecting its moral background proposed, among others by the doctrine of the Catholic Church, if we want to treat it as a legal category.
{"title":"How the dignity was understood in law in past and how it should be today","authors":"M. Najman","doi":"10.24818/tbj/2021/11/sp/04","DOIUrl":"https://doi.org/10.24818/tbj/2021/11/sp/04","url":null,"abstract":"In the current legal discourse, the concept of dignity is becoming more common. It is considered the highest axiom, which every violation deserves to be condemned. However, we forget about the conceptual basis of a given concept, its history and original overtones. We do not remember that certain concepts are created solely to systematize the created or existing social and political situations. The purpose of the article is to attempt to answer the question of how to understand the concept of dignity in legal discourse. It is worth bearing in mind that dignity is indicated as \"this\" (value or maybe something else) from which human rights originate. That is why it should be rejected as a value because the value itself is not a value. However, one must opt for an objective understanding of dignity, rejecting its moral background proposed, among others by the doctrine of the Catholic Church, if we want to treat it as a legal category.","PeriodicalId":41903,"journal":{"name":"Juridical Tribune-Tribuna Juridica","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2021-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43600313","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}
Pub Date : 2021-10-30DOI: 10.24818/tbj/2021/11/sp/07
Cristina Elena Popa Tache
International investment is protected by international law by setting the standards of legal treatment that host state governments have committed themselves to in their investment treaties. Therefore, these standards of protection must be respected even in times of crisis, regardless of the reason that generated it, the policy of attracting and maintaining an investment climate favorable to international investment being an attribute of each state. If he does not find adequate protection or if he cannot negotiate contracts adapted to these conditions, nothing can prevent an investor from changing the direction of his business, in order to protect the investment made. On the other side of the barricade, the states raise the shields of force majeure and necessity. Of course, it is preferable for the barricade to turn into a round table of cooperation. The issue of violating one or more standards by states is one of the most debated at the moment, as international arbitration practice has decisions that oblige states to significant compensation. In my study I used as a research method the interdependent introspection, analysis and synthesis through analogies developed in a comparative method.
{"title":"Defense or cooperation between states and international investors in times of crisis?","authors":"Cristina Elena Popa Tache","doi":"10.24818/tbj/2021/11/sp/07","DOIUrl":"https://doi.org/10.24818/tbj/2021/11/sp/07","url":null,"abstract":"International investment is protected by international law by setting the standards of legal treatment that host state governments have committed themselves to in their investment treaties. Therefore, these standards of protection must be respected even in times of crisis, regardless of the reason that generated it, the policy of attracting and maintaining an investment climate favorable to international investment being an attribute of each state. If he does not find adequate protection or if he cannot negotiate contracts adapted to these conditions, nothing can prevent an investor from changing the direction of his business, in order to protect the investment made. On the other side of the barricade, the states raise the shields of force majeure and necessity. Of course, it is preferable for the barricade to turn into a round table of cooperation. The issue of violating one or more standards by states is one of the most debated at the moment, as international arbitration practice has decisions that oblige states to significant compensation. In my study I used as a research method the interdependent introspection, analysis and synthesis through analogies developed in a comparative method.","PeriodicalId":41903,"journal":{"name":"Juridical Tribune-Tribuna Juridica","volume":null,"pages":null},"PeriodicalIF":0.4,"publicationDate":"2021-10-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43699837","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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