Volume 19 (2019): Issue 2 (December 2019)

This Article addresses the rape epidemic in India and provides an analytical comparison to the rape laws in the United States. This Article provides an overview of the laws in both India and the United States and specifically discusses marital rape and the laws concerning it in both nations. This Article concludes with resolutions for the marital rape laws in India and the United States.

The aim of this paper is to reveal and examine law-making elements in the jurisprudence of the Constitutional Court of Ukraine. It should be noted that the Constitutional Court has no direct powers to establish new legal norms under national legislation. However, in the process of constitutional interpretation, the case law of the Court demonstrates de facto the presence of law-making activity, that leads to the extension of its discretionary power on the formation of law. The paper will focus on the analysis of the practice of the Constitutional Court of Ukraine with regard to the ‘creative interpretation’ of law. A review of selected case law leads to a conclusion that the Constitutional Court often uses the dynamic interpretation of the Constitution. Moreover, the Court may change its own legal position in order to protect constitutional rights. Thus, the Constitutional Court of Ukraine has the right to ‘develop’ the law through evolutive interpretation of the Constitution. It can also be concluded that the Constitutional Court enjoys a wide ‘margin of appreciation’ in its interpreting of the Constitution.

In their contest for domination in cyberspace states engage powers of technology, money, persuasion and norms. Clashes between two competing approaches resulted in the creation of two parallel working groups in the UN that address issues of international cybersecurity, including principles, norms and laws. Although there are very few treaties that deal expressly with cyber activities, normative aspirations and frequent use of imported rules and principles from other realms to cyberspace suggest the emergence of a new cyber normative regime – though, in the short term probably short of a global treaty. The substantive content of existing and potentially applicable norms to cyberspace has been examined to a great extent, but less scholarly attention has been paid to mechanisms that can produce cooperation and compliant behavior with international norms in cyberspace. This study draws inspiration from environmental agreements from procedural aspects and we identified two environmental regimes, which address problems sufficiently similar to the challenges of international cyber security and which have been the most successful in terms of cooperation. Selection of the Montreal Protocol and REDD+ mechanism was based on the following main factors: incentives in terms of game theory, capacities of actors, information and scientific uncertainty, the time of institution creation in normative lifecycle, number of actors, and asymmetry in power and positions taken among actors. Further analysis focuses on institutional design elements in the chosen cases, and examines if or under what conditions could these be used for international normative frameworks on cyberspace.

The paper explores the problem of the formation of the ‘(quasi-) customary law’, as a source of law created by, or contributed to by armed non-state actors (ANSAs). It argues that, despite some views presented in the doctrine of international law, claims of a quasi-customary international law are without foundation in the current state of international law. The paper is divided into three parts. The first part presents the views of legal doctrine concerning the customary law as contributed/created by non-state actors. The second section argues that ANSAs do not form practice and opinio juris which would allow them to create their ‘own’ customary law. The final part presents the possible challenges and consequences of including ANSAs in the process of formation of customary international law as created by States. In summary the conclusions posit that it could be potentially very harmful for international humanitarian law and the protection of human rights.

The article is dealing with the EU current and future intruments for the protection of the rule of law principles at the level of the European Union. The beginning is dedicated to the EU concept of the rule of law as an integral part of the Common European values and its significant for the smooth functioning of the area of freedom, security and justice. The substantial part of the study is focusing of the analysis of different procedures (infringement, political and administrative), which can be used for the protection of the rule of law principles, including highlighting their certain peculiarities and the limits. The end of the article contains the conclusions about future prospects.

In its final report on aggression and the use of force, the International Law Association opined that the only way in which unilateral humanitarian intervention could possibly be seen as a legal exception to the prohibition of the use of force is if State practice and opinio juris were to be found establishing its status as an additional exception in customary international law. After the airstrikes conducted by the US, the UK, and France against Syria in April 2018, which took place in reaction to unprecedented usage of chemical weapons against civilian population by regime of Bashar Asad, some States and part of scholars argued that this permissive rule (exception) has already crystalized and humanitarian intervention became part of international law. The aim of this article is to assess whether these opinions are relevant or whether they are simply premature. The text is divided into three parts. Firstly, legality of humanitarian intervention is considered in the framework of the UN Charter and customary international law on the use of force based on evaluation of scholarly debates and the most prominent examples of State practice before 2018. Then, the article describes methodology that is employed in relation to the creation (modification) of customary international law in general and peremptory norm concerning the prohibition on the use of force in particular. This part analyzes how possible normative changes of jus ad bellum should be assessed. The third part evaluates justifications and reactions of States with respect to the use of force against Syria in April 2018 that were presented by the international community of States. The article concludes that the concept of humanitarian intervention remains still illegal even after the airstrikes against Syria from 2018, what conforms to the prevailing opinion presented in contemporary scholarly literature. Even though the positive echoes identified in State practice (and doctrine) are yet premature, they indicate that process of gradual normative change has already been triggered. At the same time, the expectations concerning crystallization of a new possible exception to the general prohibition on the use of force should not be too exaggerated.

The given article is an evaluation of the implementation and development of Georgia’s cybersecurity policy, and its influence on Georgia’s global cybersecurity index. The study covers the period from 2008 to 2018. In 2008 Georgia became one of the first victims of hybrid warfare. During the August 2008 Russo-Georgian war, Georgian government websites were attacked by hackers affiliated with Russia. In the given period, cybersecurity was not the priority direction for Georgia, therefore government portals were easy targets for cybercriminals and the government couldn’t prevent the cyberattacks. After 2008, the government decided to develop a state cybersecurity policy. In 2012 the country ratified the Council of Europe’s cybersecurity convention. At the same time, the “Law of Georgia on Information Security” which had become a basic document of the cybersecurity state policy implementation, had been adopted. The document was followed by a cybersecurity strategy. During the following years, based on cybersecurity strategy document, Georgia implemented 2 action plans and defined the relevant state agencies responsible for “cyber safety” of the country. As a result of the reforms, in 2017, according to the International Telecommunication Union (ITU) Cybersecurity Global Index, Georgia has been ranked among the top ten countries. The given article is a chronological description of a Georgian cyberpolicy and cybercapabilities evolution. It includes cases of organized cybercrime carried out against the state and examples of the development of Georgian cybersecurity policy which was reflected on the global international cybersecurity index of the country.

The paper analyses the use of the preliminary ruling procedure by the Czech Constitutional Court and the attitude of this court towards the EU law. The approach of the Constitutional Court to the judicial dialog is also compared with some other European constitutional courts mainly with those who have a similar role in national judiciary or with those who were able to effectively take an advantage of the preliminary ruling procedure. The paper demonstrates that the Czech Constitutional Court took the position that seems to be unsustainable from a long time perspective as the reality of the current development favours the spirit of cooperation among European highest courts.

The paper deals with collective protection of consumer rights from the European and Czech point of view. The attention is focused on the question of the concept of legal standing to bring a collective actions (i.e. locus standi) The article compares the legal regulation of legal standing to bring a collective action in the Commission Recommendation of 11 June 2013 on common principles for injunctive and compensatory collective redress mechanisms in the Member States concerning violations of rights granted under Union law (2013/396/EU), in the proposal a new Directive of the European Parliament and of the Council on representative actions for the protection of the collective interests of consumers [COM/2018/184 final-2018/0089 (COD)] and the Czech bill for the Collective Redress Act.

Mediation as a popular method of ADR is more and more often used while solving cross border disputes. Although the mediation clauses are included into the commercial contracts almost automatically, no attention is paid to its validity, enforceability and other legal consequences. The article provides a study on the nature of mediation clauses that crucially influences the law governing validity of mediation clauses. It is the position of the author that mediation clauses are primary institutes of the substantive law and thus the governing law should be determined in accordance with the Rome I regulation.

The EU environmental policy is challenged by current international development (withdrawal of the US from the Paris climate accord, melting of the Arctic, changes in climate, extreme weather events), the sustainable development policy agenda and also by public pressure. The interest of the public in the environmental policy is not only reflected in the Eurobarometer polls, the increase of green parties in 2019 EP elections, but it is also present in the very first European Citizens’ Initiative, the environmentally oriented Right2Water initiative, which had been presented to the Commission in 2013. Following the need to reflect upon the current problems and challenges, the scope of European Environmental Policy (EEP) has broadened from traditional direct environmental challenges, such as access to clean water, clean air, maintaining biodiversity also to other areas connected to current challenges as the climate change and sustainable development and into practical implementation in particular internal and external policies – including trade policy, competition policy or public procurement. Following analysis is focused on the position of the green agenda and EEP transfer to legislation in public procurement on European level.

The article focuses on the analysis of the procedural arrangements of detention proceedings in the legal order of the Czech Republic and the Federal Republic of Germany. Special attention is paid to the systematic (conceptual) setting of the functioning of procedural adjustments, whose current form is a reflection of the shift or departure from the historical law ratio legis of civil health detention. The historical ratio legis then consists in the protection of the personal freedom of the mentally ill, who were taken into the institution for the insane against their will. Thus, the links between guardianship and detention should not be neglected in the design of procedural procedures. Both procedures should be closely linked. The aim of the article is to analyze the concept of procedural modifications of detention proceedings under German and Czech legislation, also in connection with partial differences within individual procedural law institutes. Special attention is paid to the mutual relation between detention proceedings and custody proceedings.

The goal of this article is to analyse the Slovak legislation of preservation and rendition of computer data in accordance with section 90 of the Criminal Procedure Code, which was implemented in the Slovak legal order under the Convention on Cybercrime, Budapest, 23. 11. 2001. In particular, article 16 of the Convention on Cybercrime obliges the member states to adopt necessary legislative and other measures as may be necessary to enable its competent authorities to order or similarly obtain the expeditious preservation of specified computer data, including traffic data, that has been stored by means of a computer system, in particular where there are grounds to believe that the computer data is particularly vulnerable to loss or modify. In addition, the article examines the effects of the legislation adopted in practice, including the correlation problems that the legislator has not deal with and also brings up-to-date results of the fight against cybercrime.

This article critically analyses an interpretation and application of necessary and reasonable measures to prevent or repress crimes committed by the subordinates in the Bemba case. The aim of the Article is to analyse the Pre-Trial Chamber, Trial Chamber and Appeal Chamber findings on necessary and reasonable measures in connection to responsibility of person effectively acting as a military commander. In doing critically analyses of the interpretation and application, this article evaluates legal challenges faced by the ICC in using superior responsibility, with special focus on the relevance of motives behind the measures taken by a superior or commander and the issue of remote commander. This study provides first comprehensive analysis of necessary and reasonable measures requirement in the Bemba case and as such, offers the latest development on the superior responsibility doctrine applicable at the ICC.