Criminal liability of legal entities was legitimised in the Republic of Lithuania nine years ago, and in the ruling of the Constitutional Court of 8 June 2009, a conclusive confirmation on its accordance with the Constitution was made. It should be noted that this penal law novelty (providing the extension of the concept of criminal offence subject) caused considerable debate among Lithuanian scientists. One of the most controversial issues of this penal law novelty are the exceptions listed in Article 20(5) (...) of the Criminal Code. (shrink)

Pasibaigus Šaltajam karui smarkiai išaugęs tarptautinių konfliktų skaičius bei identifikuotos naujos grėsmės paskatino tarptautines organizacijas, tokias kaip Jungtinių Tautų organizacija (toliau – JTO) ir Šiaurės Atlanto sutarties organizacija (toliau – NATO) peržiūrėti Šaltojo karo metu taikytą jėgos panaudojimo praktiką, poreikį ir priemones reaguoti į konfliktus. Tokiomis priemonėmis kaip tik ir tapo vadinamieji „mėlynieji šalmai“, kurie Jungtinių Tautų valstybių narių yra priskiriami Jungtinių Tautų Saugumo Tarybos sankcionuotoms operacijoms vykdyti. Nors priskirtos pajėgos vykdydamos tarptautines operacijas dėvi Jungtinių Tautų simboliką, tačiau jų pavaldumas (...) savo valstybei išlieka visą laiką. Analizuodami valstybių dalyvavimo tarptautinių organizacijų sankcionuotose tarptautinėse operacijose teisinius pagrindus, straipsnio autoriai per jėgos panaudojimo prizmę analizuoja Jungtinių Tautų Saugumo Tarybos ir apskritai tarptautinių organizacijų vaidmenį sankcionuojant jėgos panaudojimą pagal Jungtinių Tautų Chartijos nuostatas bei tarptautinių operacijų vykdymo raidą. Straipsnyje taip pat detaliai apžvelgiami siuntimo į tarptautines operacijas nacionaliniai teisiniai pagrindai ir procedūros bei Lietuvos Respublikos praktika. Šis straipsnis yra skirtas visiems besidominties tarptautinėmis operacijomis ir jų sankcionavimo nacionaliniais ir teisiniais pagrindais. Straipsnio struktūra susideda iš trijų dalių. Pirmojoje šio straipsnio dalyje yra nagrinėjamas jėgos panaudojimas pagal Jungtinių Tautų Chartijos nuostatas, antroje ‒ aptariami dalyvavimo Jungtinių Tautų Organizacijos ir Šiaurės Atlanto Sutarties Organizacijos vadovaujamose tarptautinėse operacijose raida ir teisiniai pagrindai, o paskutinėje dalyje yra nagrinėjamas nacionalinis siuntimo į tarptautines operacijas reglamentavimas. (shrink)

Šiame straipsnyje, remiantis 2019–2022 metais atliktu empiriniu tyrimu Kazachstane, analizuojamas vienas negatyvios formalios socialinės kontrolės instrumentų – nepa­geidautiną individų ir socialinių grupių elgesį viešosiose erdvėse draudžiantys ženklai. Tyrime taikyta etnografijos ir vizualios sociologijos metodologinės prieigos: stebėji­ mas nedalyvaujant ir viešųjų erdvių bei jose esančių draudžiamųjų ženklų fiksavimas pasitelkiant fotografavimą. Straipsnyje pristatomi ir analizuojami vizualūs duome­nys – fotografijos. Ši analizė papildoma stebėjimo nedalyvaujant įžvalgomis. Teigiama, kad kasdienį gyvenimą viešosiose erdvėse reglamentuojančių mikrolygmens formalių taisyklių gausa rodo patriarchalinį nepasitikėjimu grįstą valdžios ir žmonių (...) santykį, o griežtas viešosios erdvės estetikos kanonas gali būti interpretuojamas kaip sovietmečio tradicijų tąsa bei režimo legitimumo įtvirtinimo priemonė. (shrink)

This article analyses that state responsibility in international law is contractual liability, as a state infringes its obligations to another state (states), stemming out of international law. Member State liability in damages to a private party for breach of European Union law is, contrarily, non-contractual liability to a private party. Having analysed the elements of internationally wrongful act, it is stated that the elements of internationally wrongful act can be used to determine the elements of breach of the European Union (...) law. Thus if an international court declares that a state committed an internationally wrongful act, it would be possible to maintain that the elements of breach of the European Union law are met as well. The author of this article notes that it is very important to identify a particular state institution, which has infringed the European Union or international law, as not attributing to the state the acts of the state institution under the European Union or international law, there should be no possibility to apply state liability in damages to a private party for breach of the European Union law or state responsibility in international law – the state can be liable only for acts of its institutions. This article also analyses the cases where application of both Member State’s liability in damages to a private party for breach of the European Union law and state responsibility in international could be possible. In such case a private party can suffer damages if a Member State breaches an international agreement, concluded by the European Union, imposing particular obligations on that Member State. Therefore, it is ascertained that a private party should not have to prove the second condition of liability – sufficient seriousness of the breach1 – if an international court foremost states that a Member State commited an internationally wrongful act – breached its obligation arising out of an international agreement entered into by the European Union. Such an infringement would be considered to be as sufficiently serious per se. (shrink)

In this article the author analyses specific reservations that are being done to the international documents for the protection of human rights and whether Vienna Convention on the Law of the Treaties applies to those human rights treaties or not. Also, the author analyses if reservations, which are incompatible with object and purpose of the treaty, can be done or not and what consequences they might bring. For this reason the author describes the practice of the state members under the (...) Convention on the Elimination of All Forms of Discrimination against Women and International Covenant on Civil and Political Rights. These treaties were chosen not only because they laid down the most significant principles of the protection of human rights, but also due to the great number of reservations made to the fundamental provisions of these treaties. The importance of the topic is that in the human rights treaties the implementation of Vienna Convention on the Law of Treaties provisions on reservations brings several issues, even though on theoretical level the regulation of reservations seems unproblematic. Firstly, there is a major group of states (especially Islamic countries, which base their explanation on the incompatibility with Islamic law), which want to become parties to the treaties that protect human rights and make reservations to fundamental provisions of them at the same time. Secondly, the state parties that make objections to the reservations have to decide if the reservation is compatible with the object and purpose of the treaty or not. The regulation that is laid down in Vienna Convention on the Law of Treaties creates difficulties for the state parties and withdrawal of reservations seems to be more problematic in reality than it is in theory. In order to find the solutions for the above mentioned issues, the author analyses whether the Vienna Convention on the Law of the Treaties regime works properly within the mechanism of making reservations to the human rights treaties or not, what reservations should be kept invalid under the human rights treaties and what could be the solutions for the most effective protection from the invalid reservations that address fundamental rights of human beings in the human rights law. (shrink)

The article offers a concise view on the problems related to the Church and State relationship in Latvia. The article presents the author’s hypothesis that under the new circumstances when special legal provisions apply to traditional churches, it must discussed whether the rest of religious organizations could be classified as religious societies, operating in accordance with the Law on Societies and foundations. The author also holds an opinion that it is important for every country to follow the principle of separation (...) of church from state; however, it must be combined with religious freedom. Nevertheless, the article reveals that the task is difficult to follow in practice, in Latvia and in other EU member states alike. (shrink)

There are various notions of capital, but in this article movement of capital is being analysed from the perspective of international investment law – a country has an asset, which it cannot exploit or do so efficiently and there is a foreigner who possesses financing, technology or know-how, which allows to develop such asset. Lithuania is a net importer of capital, thus this article analyses on what might be the asset that Lithuanian government is interested in developing through foreign investment (...) and why Lithuania does not develop such asset through other means, i.e. borrowing. As China is one the biggest capital exporters and becomes one of the biggest outward investors, this article also analyses driving factors behind such increase of outward investment from China – the Going Out policy and various instruments used by China to encourage such policy. Finally, the article analyses the possible underlying reasons Chinese company CAMCE has in Kaunas free economic zone and what such interest means under international investment law. (shrink)

The 1951 Convention Relating to the Status of Refugees and the 1967 Protocol Relating to the Status of Refugees embody fundamental provisions of refugee law. However, since the adoption of these documents the world has changed dramatically and the laws are not developing fast enough in order to catch up with dynamically changing contemporary situations. The application and interpretation of definition of a refugee was developed through traditional practice of Western states, which was influenced by two world wars and the (...) Cold War, when refugees from Africa or Asia were uncommon. The Qualification Directive specifically aims at ensuring that the member states apply common qualification criteria for persons who need international protection in line with the 1951 Convention Relating to the Status of Refugees. The author supports the statement that the Qualification Directive in principle aims at bringing back under the definition of refugee those, who have been left outside of its scope during the last decades as a result of the restrictive interpretation and application of the definition of refugee. (shrink)

The article aims at resolving the issue whether the Court of Justice of the European Union (CJEU) has an exclusive jurisdiction under Article 344 of the Treaty on Functioning of the European Union (TFEU) to resolve disputes between Member States, stemming from provisions of an international treaty, a party to which is the EU. This problem is especially relevant in cases when a mixed international agreement envisages independent institutions of dispute resolution. The position of the CJEU is expressed in the (...) case of Mox Plant. The European Commission applied to the CJEU against Ireland, because it considered that Ireland, which started an arbitration procedure against United Kingdom under the UN Convention on the Law of the Sea, has infringed the exclusive jurisdiction of the CJEU under Article 344 of the TFEU. The EU is also a Contracting Party to the UN Convention on the Law of the Sea. Therefore according to the consistence case practice of the Court, the provisions of the Convention that fall under the competence of the Union constitute an indivisible part of the EU legal system. Only in such case when a provision of a treaty is attributed to exclusive competence of the Member States, the jurisdiction of the CJEU regarding that provision can be negated. Thus, when deciding on the issue of exclusive jurisdiction of the CJEU in principle, a problem of attribution of the EU and Member States’ competences arises. (shrink)

World Trade Organization (WTO) Agreement includes the Annex 2 Dispute Settlement Understanding (DSU) that reveals with WTO dispute settlement rules and procedures. The Dispute Settlement Body (DSB) is hereby established to administer these rules and procedures. The article analyses the problematic issues of the direct effect of the DSB decisions in the European Union (EU) legal order. ECJ concluded that an individual does not have the right to challenge, the incompatibility of Community measures with WTO rules, even if the DSB (...) had previously declared the EU legislation to be incompatible with those rules. The position of the ECJ is based on the WTO dispute settlement system specifics—the importance of the negotiation between the parties, even after the DSB decision-making and lack of reciprocity, which means that major commercial partners of the EU does not recognize the direct effect of DSB decisions. (shrink)

Izhajajoč iz dveh slavnih Kantovih tekstov skuša pričujoči spis pokazati na notranjo zvezo med avtonomijo uma in subjektivno svobodo na eni strani ter nujnim pokoravanjem arbitrarni avtoriteti na drugi. V Kantovem načrtu za organizacijo Univerze se ta povezanost kaže kot delitev na zgornje in spodnje fakultete, pri čemer se morajo prve podrejati samovoljnim ukazom zunanje oblasti, druga pa naj se ravna le po načelih uma. Obe plati spadata skupaj v skladu s Kantovim paradoksnim stališčem, da samo omejitev osvobaja, medtem ko (...) bi neposredno sovpadanje obojega privedlo do nevarnosti totalitarizma. Toda ta bistvena zveza med umom in ne-umno arbitrarnostjo naposled meri drugam: subjekt, ki si v svoji radikalni avtonomiji in samoopredelitvi postavlja svoj lastni notranji Zakon, je prav v svojem jedru soočen z radikalno heteronomijo. Moralni Zakon, kategorični imperativ, subjekta šele zares oropa njegove iluzorne avtonomije, konec koncev je še manj umno utemeljen kot njegov objektivni protipol. Od subjekta zahteva nemogoče, ne da se ga zadovoljiti, a prav skozi to nemožnost, skozi to bistveno nezadovoljnost vznikne subjekt razsvetljenstva. Zadnji del skuša pokazati, kako Fou-caultova reaktualizacija kantovske pozicije zatre njene radikalne konsekvence. Foucault zvaja Kantovega subjekta na pred-kantovsko etično držo in tako zgreši tisto zastavitev subjektivnosti, ki je položena v temelje psihoanalize. (shrink)

Straipsnyje apžvelgiamos Lietuvoje nuo 1992 m. veikiančio nepriklausomo lotyniškojo tipo notariato nūdienos aktualijos, patirtis, iššūkiai bei perspektyvos Lietuvos teisės kontekste, taip pat atsižvelgiant į tarptautines notariato veiklos teisinio reglamentavimo tendencijas. Straipsnyje aptariamas daug diskusijų sukėlęs ir Europos Sąjungos Teisingumo Teismą pasiekęs pilietybės reikalavimas asmenims, norintiems tapti notarais, notarų atliekamų funkcijų įvairovė bei jų spektro pokyčiai skirtingose valstybėse ir laiko požiūriu, e. notaro koncepcija, notarinių paslaugų tarptautiškumo didėjimas bei naujausios Europos Sąjungos notarų veiklos teisinio reglamentavimo iniciatyvos, notariškai patvirtintų autentiškų dokumentų galiojimas.

The present article discusses the broadening of the concept of genocide in Lithuanian national criminal law with regard to the principle of nullum crimen sine lege. The broadened definition, which includes two groups, social and political raises serious problems when the national provisions on genocide are applied retroactively. However, in the case of Lithuania, such a broadening of the definition may be interpreted not as an introduction of distinct independent groups, but of groups that closely overlap with the groups defined (...) by the UN Genocide convention of 1948. The article suggests that potential problems with the principle of nullum crimen sine lege may be avoided by qualifying crimes against the Soviet regime as crimes against humanity. (shrink)

The present article is a subjective commentary on the case Kononov v. Latvia dealt by the European Court of Human Rights, in particular drawing attention to the Courts intention not to regard context of the case as important for the substantial issues. Author considers this approach in a bigger picture of clash of historical and legal paradigms of the heritage of the Second World War in different countries (namely, Western Europe, Russia, the Baltic States). Author also discusses what impact Kononov (...) case might have on Soviet crimes prosecution in the future. (shrink)

Superior responsibility has been a widely recognised form of responsibility for omission in both treaty and customary international law. Superiors are held responsible for the acts of their subordinates when they fail in fulfilling their duties to prevent or punish crimes of subordinates. Duties to prevent and punish arise only after the superior knows about the subordinate’s crimes or has a reason to know about it. ‘Has a reason to know’ is a form of constructive knowledge and could be defined (...) as absence of actual knowledge about subordinates’ crimes where that knowledge should exist because of information available to the superior from the content of which it could be easily concluded that there is a possibility that subordinates intend to commit, are committing or have already committed crimes and the lack of that knowledge is a cause of willful disregard of his duties or at least disregard based on gross negligence. (shrink)

The paper analyses the relevant issue of the relationship of international law and European Union law. Therefore, independent systems of law exist, which inevitably arise the issue of relationship and interaction of these systems. Legal literature analyses the question of the relationship of these two systems of law on the basis of various aspects. The author has chosen the following structure of the paper: first, the general problem of the relationship of international and European Union law is discussed. While describing (...) the problem, the nature of the European Union and international law, as well as the distinguishing features of these systems of law, is analysed. The paper also provides a discussion about the decisions of the Strasbourg court and the Court of Justice of the European Union, which provide the basis of solving the problem of the relationship of these systems of law. In the second part of this paper, the main theories are analysed: the monistic, dualistic and coordination theories, which can be used to answer the issue of interaction of the two systems of law – international law and European Union law. (shrink)

The article deals with the question how transnational corporations can bear direct responsibility for human rights abuses they commit by analysing the deficiencies of the current international legal background with respect to human rights and transnational corporations, and the solutions offered by national and regional legal tools. By establishing that current international law is incapable of reducing or compensating for governance gaps, the case law analysis shows that the litigation system under the Alien Tort Claims Act in the United States (...) and ATCA-like litigation possibility in the European Union present a feasible alternative to international law in the field of human rights protection when abuses are committed by transnational corporations. (shrink)

The study analyses the issues of protection of national minorities from the perspective of international law. The study consists of three parts. In the first part, the author reveals the understanding of a national minority on the basis of objective and subjective features. This part focuses on such problematic issues as national minorities and citizenship, non-dominant position of a national minority. The second part of the study concentrates on international minorities as subjects of international law. The author analyses international legal (...) subjectivity of national minorities. A question is raised whether the rights of national minorities are individual or collective rights. The third part of the study focuses on the analysis of normative basis for the protection of national minorities. The author notes that the monist system exists in the Republic of Lithuania regarding the relation of international and national law. Under this system, the international treaties ratified by the Lithuanian Parliament (Seimas) are seen as an indivisible part of the legal system of the Republic of Lithuania. Therefore, the Convention for the Protection of National Minorities is an international treaty that is directly applicable in the legal system of the Republic of Lithuania. The fourth part of the study focuses on the question whether Lithuania should become a party to the European Charter for Regional or Minority Languages. Although this issue is complex and includes the problems of political, economic, legal and other nature, the author focuses on the legal analysis of the problems related to the participation in the Charter. It is emphasised that the Charter is not the only document that ensures the linguistic rights of national minorities. Under the Law on International Treaties of the Republic of Lithuania, while considering participation in the Charter, the right of treaty initiative should be implemented, and the question of efficiency of the treaty must also be solved. (shrink)

Environmental protection in times of armed conflicts, irrespective internal or international, is rarely considered as a prioritized concern. Due to the concept of state sovereignty, this is especially problematic when examining interaction of warfare and environmental protection in non-international hostilities. Not only it is challenging to find any exhaustive and explicit legal provisions regulating the matter, but this issue has also been forgotten by international legal scholars. Therefore, in this article the author reviews written and customary norms laid down in (...) documents of various branches of international law, such as international humanitarian law, human rights law, environmental law and international criminal law, which directly or by way of interpretation may favour environmental protection in times of internal armed conflict. This is to be done in order to gather information about the sufficiency of legal framework on preservation of the environment in times of noninternational armed conflicts. After doing this research, a few possible means to improve current legal framework are suggested. The author suggests to impose civil liability, enact new comprehensive document, initiate changes in international criminal law and other. (shrink)

The protection of national minorities forms a constituent part of the international protection of human rights. General human rights treaties (the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention for the Protection of Human Rights and Fundamental Freedoms and others) create guarantees for the protection of persons belonging to national minorities on the basis of individual human rights. Although the mentioned treaties are not specifically devoted for the protection of national (...) minorities, it is important to underline that non-minorities treaties establish articles of special relevance for persons belonging to national minorities. Non-minorities treaties on the basis of non-discrimination and equality oblige the contracting states to ensure equal treatment of persons, including those belonging to national minorities. It may be noticed that non-minorities treaties provide the protection for persons belonging to national minorities indirectly through the interpretation of the ambit of general human rights. The core question is whether the protection granted on the basis of general human rights is sufficient for the effective protection of persons belonging to national minorities. The aim of the article is to analyze general and specialized international legal grounds of special significance for persons belonging to national minorities in order to determine the particularities of the protection granted for them. The conclusion is drawn that general human rights alone do not effectively protect national minorities: general human rights contribute to the protection of persons belonging to national minorities as a supplement element that inextricably interrelates with specialized rights together comprising the protection devoted to national minorities. (shrink)

The application of the state immunity doctrine with regard to the guarantee of access to court in the case-law of the European Court of Human Rights has been proved to be a complicated issue. In the ECHR’s case-law before the case Cudak v. Lithuania, the application of the state immunity doctrine had been considered as a proportionate restriction of the right of access to court even in cases of the realization of the protection of the jus cogens norm which was (...) very much criticized by the scholars of international law. Thus, the referral of the case Cudak v. Lithuania to the Grand Chamber could or should change the ECHR’s case-law in this sphere or at least develop certain criteria which would afford ground for a more effective protection to the right of access to court in cases of the application of the state immunity doctrine despite the fact that this right is not absolute. However, the case Cudak v. Lithuania has not fully satisfied these aims. Contrary, the case Cudak v. Lithuania left much obscurity, giving a strong indication that, what regards the realization of the right of access to court, the state immunity doctrine is more a material than a procedural ban, since the argumentation given by the ECHR in this case does not guarantee practical protection of this right. (shrink)

After the establishment of the independent Slovak Republic, legal and institutional ground rules were set for providing asylum to foreigners present on the territory of the Slovak Republic. The national legislation of the last twenty years was adopted in compliance with international treaties and the European Union instruments covering asylum matters. In the field of asylum policy, the Slovak Republic complies with its traditional pillars and supports new forms of protection following the new challenges faced by the international community. The (...) currently valid Asylum Act regulates the international protection of aliens in the Slovak Republic, by defining the conditions and procedures related to granting asylum and provision of subsidiary protection and temporary shelter. The Asylum Act also covers the rights and obligations of different categories of persons, stay in asylum facilities and, partially, the integration of persons that are granted asylum. This article describes and analyses the development of the Slovak asylum legal framework and the concept of asylum policy. Furthermore, it looks at different protection statuses granted to foreigners and finally deals with the refugee migration trends in the Slovak Republic. (shrink)

The present article analyses the so-called ‘crime of denial’ recently established in Article 1702 of the Lithuanian Criminal Code. It describes how this crime was introduced in the Lithuanian Law, and the reasons for its present form and challenges. The crime has been applied in two instances (Stankeras case and Paleckis case). The author discusses these two instances of application, critically reviews the arguments of the Prosecutor’s Office and of the court of first instance and shows that at least in (...) the first cases of application of this crime, its objectives and particularities are misunderstood. (shrink)

The use of private military force by states has been a long-standing phenomena in the history of warfare. Armies of mercenaries, privateering and recruitment of foreign nationals into armed forces have been common during the Middle Ages and later on. However, with the invention of effective firearms and artillery, standing regular armies, conscription and other developments that resulted in the essential rise of costs of war, the role of private military entrepreneurs diminished. By the end of XIXth century the state (...) became almost the only subject that was able to wage a full-scale war. Nevertheless, already in the middle of the XXth century mercenarism has been reborn in Africa’s colonial and post-colonial wars. The end of the XXth century and the beginning of the XXI century witnesses an enormous rise of private security and military companies (PSMC) that are hired to perform different functions related to use of force not only by states, but also by other clients such as international organisations, transnational corporations, etc. A PSMC may be defined as a profit-seeking private enterprise, which is established according to the national law of the state and which is providing, on the basis of a contract, services directly or indirectly connected with the use of military force or its institutions whether in time of armed conflict or peace, notwithstanding how such company describes itself. International humanitarian law has no specific regulation of PSMC. Nevertheless, it would be erroneous to state that the activity of PSMC is not regulated, because international humanitarian law in any case, in one or another way, is applicable to the personnel of PSMC if it is engaged in armed conflict of either international or non-international character. (shrink)

Cyber warfare is becoming a new reality with new battles fought everyday on virtual battlefields. For a century and a half, International Humanitarian Law has been a sentry for victims of wars guaranteeing their legal protection from the calamities of war, trying hard to respond to Clausewitz’s “chameleon of war”. Cyber conflict marks new chameleon’s colour together with the unmanned aerial vehicles, autonomic battle systems and other technologies deployed on battlefields. However, it would be greatly erroneous to claim that the (...) International Humanitarian Law may not apply to the new phenomena just because it is caused by the advanced technology. Even if the Geneva Conventions of 1949 are already sixty years old, the International Humanitarian Law in itself has at minimum customary response mechanism, granting, in a spirit of Marten’s clause, protection and authority of the principles of international law derived from established custom, from the principles of humanity and from dictates of public conscience (Protocol I). Notwithstanding, some more complicated fundamental issues also have to be addressed: how the use of cybernetic weapons and means may affect the classic notion of armed conflict? How it can be interpreted in the light of new technologies, i.e. can we still rely on a classic understanding of weapon’s kinetic effect as the main element, or shall we embrace effectsbased “Schmitt’s criteria”. If it so happens, will it make an act without apparent damage to a person/property equal to military hostilities, required by the armed conflict notion and justify the real-life response to it. The effective or overall control tests were used for the attribution of non-state actor’s activity to the state party of an armed conflict but these tests might not meet its purpose in the virtual battlefield of loose networks and open-source communities. If the concept of armed conflict is treated more flexibly, other changes (including issues of attribution) may follow, as well. Perhaps this is the way how the combatant institute will evolve. With classic combatant’s criteria impossible to apply on virtual battlefields, one of the options would be to elaborate concepts of “constant combat function” and “direct participation in hostilities” more precisely, as well as to reconsider state’s affiliation requirements. (shrink)

The establishment of the Common European Asylum System by 2012 remains a key policy objective for the European Union. According to the Council of the European Union, the development of a Common Asylum Policy should be based on a full and inclusive application of the 1951 Geneva Convention Relating to the Status of Refugees and other relevant international treaties. In the European Pact on Immigration and Asylum attention is brought to the persistence of wide disparities amongst Member States in the (...) granting of protection and the form of protection granted. This is seen as one of the main problems to be addressed in building the CEAS. It is fairly obvious that existing divergences in policy have a substantial impact upon the aims of the CEAS. It can be assumed that the difference in governmental practices involving recognizing asylum seekers on refugee grounds or subsidiary protection grounds may be a substantial factor in the decision-making process on where to apply for international protection. The European Commission stressed the importance, during the second phase of the CEAS, of paying particular attention to subsidiary and other forms of protection. (shrink)

The present article analyses the issues of the legal definition of the European Union. It has been noticed a while ago that the EU has outgrown the “gown” of a typical international organisation and that it has acquired some features specific to a State-like entity. It is no coincidence that some authors accentuate that the EU is a specific, unconventional international organisation, some – that it is an entity, very similar to a State (an incomplete federation, a post-modern State), others, (...) not being satisfied with the traditional distinction between an international organisation and a State, are trying to develop the third category, calling the EU sui generis organisation or supranational organisation. The arguments concerning the EU model of integration continue even after the Treaty of Lisbon entered into force. Not being able to fit this legal phenomenon into the usual typological scheme we need to consider the development of a new theory enabling to define the new phenomenon. The definition of this kind of category meets several obstacles: it is a unique legal phenomenon, it is constantly changing and, furthermore, the hybrid nature of the Union induces to qualify the EU following either the criteria of international or of national constitutional law while elaborating the abovementioned synthetic category. (shrink)

This article investigates the use of natural law in biolaw from the specific perspective of an attorney practising before the European Court of Human Rights. Starting from an exploration of the question of who is a human and thereby to be protected under the European Convention on Human Rights (ECHR), particular emphasis is placed on the right to life under Art. 2(1) ECHR. It is shown that natural law can – and should – impact the interpretation of the European Convention (...) on Human Rights and that concrete consequences follow from this approach, most notably the requirement to ensure that every human being, including the unborn, is actively protected as concerns the right to life. (shrink)

Along with the Strait of Malacca and the Singapore Straits, the Strait of Hormuz is arguably the most important bottleneck in international navigation because a large part of the global oil production needs to be shipped through this passage, which is only a few kilometers wide. In the context of the dispute about Iran’s nuclear program and new sanctions, Iran has threatened to close the Strait of Hormuz for international shipping, effectively cutting off many Western countries from important oil imports. (...) In this article, the legality of such action as well as the legality of the mere threat to close the Strait of Hormuz are investigated. In addition to the International Law of the Sea, general rules of international law and the international law of armed conflict are taken into consideration. Particular emphasis is put on the sovereignty of other states, which is infringed upon by such threats on the part of the Iranian leadership. First, the question has to be answered whether a passage through these waters would be transit passage through a Strait or normal passage through the coastal state’s territorial sea. The authors of the article conclude that the regime of transit passage applies qua lex specialis, as far as the part of the Strait of Hormuz, which is included in Iran’s territorial waters, is concerned. The next step is to ask the question whether preventing such a passage as well as threatening to prevent such a passage are permissible for Iran. In this context, the potential abuse of otherwise permitted traffic separation schemes is highlighted. Traffic separation schemes are of particular importance in narrow but highly frequented bodies of water, such as the Strait of Hormuz. In addition, the contemporary Iranian state practice has received some attention. One issue to be considered in more detail is the requirement that foreign warships receive authorization from the coastal state prior to entry into the territorial sea. This approach might be incompatible with the right to innocent passage under both the Law of the Sea Convention and customary international law, as there is no clear legal source, which provides for this requirement. Finally, the authors look at the question of the legality of the mere threat to close the Strait of Hormuz as opposed to actually closing the Strait. The sovereignty of other states may be affected to such an extent that such threats already amount to a violation of international law. In light of the historic precedents during the Iran-Iraq War, these threats should not be dismissed lightly. Iran would be well advised to refrain from such rhetoric. (shrink)