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International Science Index

Commenced in January 1999 Frequency: Monthly Edition: International Abstract Count: 46013

Law and Political Sciences

Impact of Terrorism as an Asymmetrical Threat on the State's Conventional Security Forces
The main focus of research will be on analyzing correlative links between terrorism as an asymmetrical threat and consequences it leaves on conventional security forces. The methodology behind the research will include qualitative research methods focusing on comparative analysis of books, scientific papers, documents and other sources in order to deduce, explore and formulate the results of the research. With the coming of the 21st century and the rising multi-polar world, new threats quickly emerged. The realistic approach in the international relations deems that relations among nations are in a constant state of anarchy since there are no definitive rules and the distribution of power varies widely. International relations are further characterized by egoistic and self-orientated human nature, anarchy or absence of a higher government, security and lack of morality. The asymmetry of power is also reflected on countries' security capabilities and its abilities to project power. With the coming of the new millennia and the rising multi-polar world order the asymmetry of power can also be added as an important trait of the global society which consequently brought new threats. Among various others, terrorism is probably the most well-known, well-based and well-spread asymmetric threat. In today's global political arena terrorism is used by state and non-state actors to fulfill their political agendas. Terrorism is used as an all inclusive tool for regime change, subversion or a revolution. Although the nature of terrorist groups is somewhat inconsistent, terrorism as a security and social phenomenon has a one constant which is reflected in its political dimension. The state's security apparatus, which was embodied in the form of conventional armed forces, is now becoming fragile, unable to tackle new threats and to a certain extent outdated. Conventional security forces were designed to defend or engage an exterior threat which is more or less symmetric and visible. On the other hand, terrorism as an asymmetrical threat is a part of hybrid, special or asymmetric warfare in which specialized units, institutions or facilities represent the primary pillars of security. In today's global society terrorism is probably the acutest problem which can paralyze entire countries and their political systems. This problem, however, cannot be engaged on an open field of battle rather it requires a different approach in which conventional armed forces cannot be used traditionally and their role must be adjusted. The research will try to shed light on the phenomena of modern day terrorism and to prove its correlation with the state conventional armed forces. The states are obliged to adjust their security apparatus to the new realism of global society and terrorism as an asymmetrical threat which is a side-product of the unbalanced world.
Additional Opportunities of Forensic Medical Identification of Dead Bodies of Unkown Persons
A number of chemical elements widely presented in the nature is seldom met in people and vice versa. This is a peculiarity of accumulation of elements in the body, and their selective use regardless of widely changed parameters of external environment. Microelemental identification of human hair and particularly dead body is a new step in the development of modern forensic medicine which needs reliable criteria while identifying the person. In the condition of technology-related pressing of large industrial cities for many years and specific for each region multiple-factor toxic effect from many industrial enterprises it’s important to assess actuality and the role of researches of human hair while assessing degree of deposition with specific pollution. Hair is highly sensitive biological indicator and allows to assess ecological situation, to perform regionalism of large territories of geological and chemical methods. Besides, monitoring of concentrations of chemical elements in the regions of Kazakhstan gives opportunity to use these data while performing forensic medical identification of dead bodies of unknown persons. Methods based on identification of chemical composition of hair with further computer processing allowed to compare received data with average values for the sex, age, and to reveal causally significant deviations. It gives an opportunity preliminary to suppose the region of residence of the person, having concentrated actions of policy for search of people who are unaccounted for. It also allows to perform purposeful legal actions for its further identification having created more optimal and strictly individual scheme of personal identity. Hair is the most suitable material for forensic researches as it has such advances as long term storage properties with no time limitations and specific equipment. Besides, quantitative analysis of micro elements is well correlated with level of pollution of the environment, reflects professional diseases and with pinpoint accuracy helps not only to diagnose region of temporary residence of the person but to establish regions of his migration as well. Peculiarities of elemental composition of human hair have been established regardless of age and sex of persons residing on definite territories of Kazakhstan. Data regarding average content of 29 chemical elements in hair of population in different regions of Kazakhstan have been systemized. Coefficients of concentration of studies elements in hair relative to average values around the region have been calculated for each region. Groups of regions with specific spectrum of elements have been emphasized; these elements are accumulated in hair in quantities exceeding average indexes. Our results have showed significant differences in concentrations of chemical elements for studies groups and showed that population of Kazakhstan is exposed to different toxic substances. It depends on emissions to atmosphere from industrial enterprises dominating in each separate region. Performed researches have showed that obtained elemental composition of human hair residing in different regions of Kazakhstan reflects technogenic spectrum of elements.
Juridical Protection to Consumers in Electronic Contracts: Need of a Uniform International Law
Electronic commerce facilitates increased choice and information on goods or services for consumers but at the same time it compounds the inequality of bargaining power many consumers face when contracting with sellers. Due to the ‘inequality of bargaining power’ experienced by consumers when contracting by electronic means with business sellers in different jurisdictions, it may be difficult to determine where either the consumer is domiciled or the place where the seller is situated or conducts its business. The question arises in such situation that if one party wants to sue the other, then where can one sue? Which court has jurisdiction to try international conflicts arising from electronic contracts concluded through the internet? Will the same rules applicable to conventional contracts apply? Or should other considerations be taken into account? In all these situations the degree of consumer protection in electronic contracts comes into picture. In the light of the above, the paper discusses the jurisdiction and choice of law rules applied in EU and United States. Further, the paper considers the current uncertainty plaguing questions of jurisdiction in India. Therefore, the jurisdiction and choice of law rules for electronic contracts must be applied consistently and provide an automatic, harmonised rule in favour of the consumer’s jurisdiction and law. Lastly, the paper suggests the need for a uniform law in order to achieve effective juridical protection.
Nurse-Identified Barriers and Facilitators to Delivering End-of-Life Care in a Cardiac Intensive Care Unit: A Qualitative Study
Little is known about the delivery of end-of-life care in cardiac intensive care unit (CICU) settings. The aims of this study were to highlight the nurse-identified barriers and facilitators to delivering end-of-life care in the CICU, and to identify whether any of the barriers and/or facilitators are specific to the CICU setting. This was an exploratory qualitative study utilizing semi-structured individual interviews as the data collection method and inductive thematic analysis to structure the data. Six CICU nurses took part in the study. Five key themes were identified, each theme including both barriers and facilitators. The five key themes are as follows: patient-centered care, emotional challenges, reaching concordance, nursing contribution and the surgical intensive care unit.
An Examination of the Effects of Implantable Technologies on the Practices of Governmentality
Over the last three decades, there has been an exponential increase in developments in implantable technologies such as the cardiac pacemaker, bionic prosthesis, and implantable chips. The effect of these technologies has been well researched in many areas. However, there is a lack of critical research in security studies. This paper will provide preliminary findings to an ongoing research project which aims to examine how implantable technologies effect the practices of governmentality in the context of security. It will do this by looking at the practices and techniques of governmentality along with different implantable technologies which increase, change or otherwise affect governmental practices. The preliminary research demonstrates that implantable technologies have a profound effect on the practices of governmentality, while also paving the way for further research into a potential ‘new’ form of governmentality in relation to these implantable technologies.
Patriarchy and Clearance Rates of Sexual Victimization: A Multilevel Analysis
Violence against women (VAW) is a widespread social problem affecting nearly two million women in the United States each year. Recently, feminist criminologists have sought to examine patriarchy as a guiding framework for understanding violence against women. Literature on VAW often examines measures of structural gender equality, often overlooking ideological patriarchy which is necessary for structural inequality to remain unchallenged. Additionally, empirical literature generally focuses on extreme forms of VAW, rape, and femicide, often neglecting more common types of violence. This literature, under the theoretical guidance of the Liberal, Radical, and Marxist feminist traditions, finds mixed support for the relationship of patriarchy and VAW. Explanations for these inconsistencies may include data availability, and the use of different operationalizations of structural patriarchy. Research is needed to examine fuller operationalizations of patriarchy in social institutions and to extend this theoretical framework to the criminal justice response to VAW (i.e., clearance rates). This study examines sexual violence clearance rates under the theoretical guidance of these feminist traditions using incident- and county-level data from National Incident Based Reporting System and other sources in multilevel modelling. The findings suggest mixed support for the feminist hypotheses and that patriarchy and gender equality differentially affect arrest clearance rates and clearance through exceptional means for sexual violence.
Predicting Mortality among Acute Burn Patients Using BOBI Score versus FLAMES Score
Introduction: Thermal injuries remain a global health problem and a common issue encountered in forensic pathology. They are a devastating cause of morbidity and mortality in children and adults especially in developing countries, causing permanent disfigurement, scarring and grievous hurt. Burns have always been a matter of legal concern in cases of suicidal burns, self-inflicted burns for false accusation and homicidal attempts. Assessment of burn injuries as well as rating permanent disabilities and disfigurement following thermal injuries for the benefit of compensation claims constitutes a challenging problem. This necessitates the development of reliable scoring systems to yield an expected likelihood of permanent disability or fatal outcome following burn injuries. Aim of the work: The study was designed to identify the risk factors of mortality in acute burn patients and to evaluate the applicability of FLAMES (Fatality by Longevity, APACHE II score, Measured Extent of burn, and Sex) and BOBI (Belgian Outcome in Burn Injury) model scores in predicting the outcome. Subjects and methods: The study was conducted on 100 adult patients with acute burn injuries admitted to the Burn Unit of Alexandria Main University Hospital, Egypt from October 2014 to October 2015. Victims were examined after obtaining informed consent and the data were collected in specially designed sheets including demographic data, burn details and any associated inhalation injury. Each burn patient was assessed using both BOBI and FLAMES scoring systems. Results: The mean age of patients was 35.54±12.32 years. Males outnumbered females (55% and 45% respectively). Most patients were accidently burnt (95%), whereas suicidal burns accounted for the remaining 5%. Flame burn was recorded in 82% of cases. 8% of patients sustained more than 60% of TBSA burns.19% of patients needed mechanical ventilation. 19% of burnt patients died either from wound sepsis, multi-organ failure or pulmonary embolism. The mean length of hospital stay was 24.91±25.08 days. The mean BOBI score was 1.07±1.27 and that of FLAMES score was 9.59±24.43. The FLAMES score demonstrated an area under the receiver operating characteristic (ROC) curve of 0.95 which was significantly higher than that of BOBI score (0.883). A statistically significant association was revealed between both predictive models and the outcome. Conclusions: Both scoring systems were beneficial in predicting mortality in acutely burnt patients. However, FLAMES score could be applied with a higher level of accuracy.
Financial and Economic Crisis as a Challenge for Non-Derogatibility of Human Rights
The paper will introduce main findings of the research of the responses of the Central European and South Eastern European (CEE/SEE) countries to the global economic and financial crisis in 2008 from human rights and gender perspectives. The research methodology included desk research and qualitative analysis of the available data, studies, statistics, and reports produced by the governments, the UN agencies, international financial institutions (IFIs) and international network of civil society organizations. The main conclusion of the study is that the governments in the region missed to assess the impacts of their anti-crisis policies both ex ante and ex post from the standpoint of human rights and gender equality. Majority of the countries have focused their efforts solely on prompting up the banking and financial sectors, and construction business sectors. The tremendous debt which the states have accumulated for the rescue of banks and industries lead to further cuts in social expenses and reduction of public services. Decreasing state support to health care and social protection and declining family incomes made social services unaffordable for many families. Thus, the economic and financial crisis stirred up the care crisis that was absorbed by women’s intensifying unpaid work within a family and household to manage household survival strategy. On the other hand, increased burden of the care work weakened the position of women in the labour market and their opportunities to find a job. The study indicates that the artificial separation of the real economy and the sphere of social reproduction still persist. This has created additional burden of unpaid work of women within a family. The aim of this paper is to introduce the lessons learnt for future: (a) human rights may not be derogated in the times of crisis; (b) the obligation of states to mitigate negative impacts of economic policies to population, particularly to vulnerable groups, must be prioritized; (c) IFIs and business sector must be liable as duty bearers with respect to human rights commitments.
Bilateral Relations in Matter of Defense between Argentina-United States and Argentina-China along the Period 2005-2015: Advice to Develop a Rational Defense Foreign Policy for Peripheral Countries
At present, we are facing an unstable international context, conditioned by a relative decline of the US power, primarily in the economic sphere and, to a lesser extent, in the military sphere. This scenario of multipolarity creates tension and uncertainty in the peripheral countries when the issue of their foreign policy arises. This paper presents an analysis of the bilateral relations that were maintained by the Argentine Republic, a peripheral country, along with the United States and China during the period of 2005-2015 in matters of defense in order to identify the empirical consequences resulted from the Argentine actions. Based on the conceptual framework of Peripheral Realism, we analyze indicators related to the weapon trade, defense loans, joint exercises, and personnel training, among others. There will also be a comparative analysis of the conventional military forces of the two powers in question, United States and China. As a conclusion, the cost of having closer relations with China instead of the United States in the defense agenda has been clearly higher than the benefits obtained. The conclusions drawn are empirically aligned with the theoretical paradigm of peripheral realism. Although there are certain conceptual and methodological digressions, these conclusions they could be useful to update and adapt the theory to the current complex international scenario.
Preventing Perpetuation of Structural Violence in the Workplace: An Australian Settlement Services Case Study
Service and advocacy organisations that serve refugee populations are often staffed by a large percentage of former refugees themselves, and this carries a number of implications for refugee rights, specifically economic and social rights. This paper makes an argument for the importance of introducing an understanding of intersectionality theory into organizations who provide services to and employ, refugee staff. The benefits of this are threefold; on an individual level it reduces the risks of burn out, vicarious trauma and compassion fatigue while increasing employee satisfaction and development, at an organizational level services become more effective, and at a systems level it helps reduce structural violence, which may itself have been a contributing factor in the movement of refugee staff from their origin countries. In support of this argument, a case study of an Australian settlement services organization is provided. Mixed methods research, utilising both qualitative and quantitative data, measured the perceived efficacy of diversity management tools at the organization and the impact this had on staff performance, retention and wellbeing. The paper also draws on strategic human resource and reward management, diversity management, international development and intersectionality texts.
Penalization of Transnational Crimes in the Domestic Legal Order: The Case of Poland
The degree of international interdependence has grown significantly. Poland is a party to nearly 1000 binding multilateral treaties, including international legal instruments devoted to criminal matters and obliging the state to penalize certain crimes. The paper presents results of a theoretical research conducted as a part of doctoral research. The main hypothesis assumed that there was a separate category of crimes to penalization of which Poland was obliged under international legal instruments; that a catalogue of such crimes and a catalogue of international legal instruments providing for Poland’s international obligations had never been compiled in the domestic doctrine, thus there was no mechanism for monitoring implementation of such obligations. In the course of the research, a definition of transnational crimes was discussed and confronted with notions of international crimes, treaty crimes, as well as cross-border crimes. A list of transnational crimes penalized in the Polish Penal Code as well as in non-code criminal law regulations was compiled; international legal instruments, obliging Poland to criminalize and penalize specific conduct, were enumerated and catalogued. It enabled the determination whether Poland’s international obligations were implemented in domestic legislation, as well as the formulation of de lege lata and de lege ferenda postulates. Implemented research methods included inter alia a dogmatic and legal method, an analytical method and desk research.
Pathomorphological Markers of the Explosive Wave Action on Human Brain
Introduction: The increased attention of researchers to an explosive trauma around the world is associated with a constant renewal of military weapons and a significant increase in terrorist activities using explosive devices. Explosive wave is a well known damaging factor of explosion. The most sensitive to the action of explosive wave in the human body are the head brain, lungs, intestines, urine bladder. The severity of damage to these organs depends on the distance from the explosion epicenter to the object, the power of the explosion, presence of barriers, parameters of the body position, and the presence of protective clothing. One of the places where a shock wave acts, in human tissues and organs, is the vascular endothelial barrier, which suffers the greatest damage in the head brain and lungs. The objective of the study was to determine the pathomorphological changes of the head brain followed the action of explosive wave. Materials and methods of research: To achieve the purpose of the study, there have been studied 6 male corpses delivered to the morgue of Municipal Institution "Dnipropetrovsk regional forensic bureau" during 2014-2016 years. The cause of death of those killed was a military explosive injury. After a visual external assessment of the head brain, for histological study there was conducted the 1 x 1 x 1 cm/piece sampling from different parts of the head brain, i.e. the frontal, parietal, temporal, occipital sites, and also from the cerebellum, pons, medulla oblongata, thalamus, walls of the lateral ventricles, the bottom of the 4th ventricle. Pieces of the head brain were immersed in 10% formalin solution for 24 hours. After fixing, the paraffin blocks were made from the material using the standard method. Then, using a microtome, there were made sections of 4-6 micron thickness from paraffin blocks which then were stained with hematoxylin and eosin. Microscopic analysis was performed using a light microscope with x4, x10, x40 lenses. Results of the study: According to the results of our study, injuries of the head brain were divided into macroscopic and microscopic. Macroscopic injuries were marked according to the results of visual assessment of haemorrhages under the membranes and into the substance, their nature, and localisation, areas of softening. In the microscopic study, our attention was drawn to both vascular changes and those of neurons and glial cells. Microscopic qualitative analysis of histological sections of different parts of the head brain revealed a number of structural changes both at the cellular and tissue levels. Typical changes in most of the studied areas of the head brain included damages of the vascular system. The most characteristic microscopic sign was the separation of vascular walls from neuroglia with the formation of perivascular space. Along with this sign, wall fragmentation of these vessels, haemolysis of erythrocytes, formation of haemorrhages in the newly formed perivascular spaces were found. In addition to damages of the cerebrovascular system, destruction of the neurons, presence of oedema of the brain tissue were observed in the histological sections of the brain. On some sections, the head brain had a heterogeneous step-like or wave-like nature. Conclusions: The pathomorphological microscopic changes in the brain, identified in the study on the died of explosive traumas, can be used for diagnostic purposes in conjunction with other characteristic signs of explosive trauma in forensic and pathological studies. The complex of microscopic signs in the head brain, i.e. separation of blood vessel walls from neuroglia with the perivascular space formation, fragmentation of walls of these blood vessels, erythrocyte haemolysis, formation of haemorrhages in the newly formed perivascular spaces is the direct indication of explosive wave action.
An Approach of Computer Modalities for Exploration of Hieroglyphics Substantial in an Investigation
In the modern era, the advancement and digitalization in technology have taken place during an investigation of crime scene. The rapid enhancement and investigative techniques have changed the mean of identification of suspect. Identification of the person is one of the significant aspects, and personal authentication is the key of security and reliability in society. Since early 90 s, people have relied on comparing handwriting through its class and individual characteristics. But in today’s 21st century we need more reliable means to identify individual through handwriting. An approach employing computer modalities have lately proved itself auspicious enough in exploration of hieroglyphics substantial in investigating the case. Various software’s such as FISH, WRITEON, and PIKASO, CEDAR-FOX SYSTEM identify and verify the associated quantitative measure of the similarity between two samples. The research till date has been confined to identify the authorship of the concerned samples. But prospects associated with the use of computational modalities might help to identify disguised writing, forged handwriting or say altered or modified writing. Considering the applications of such modal, similar work is sure to attract plethora of research in immediate future. It has a promising role in national security too. Documents exchanged among terrorist can also be brought under the radar of surveillance, bringing forth their source of existence.
The Jury System in the Courts in Nineteenth Century Assam: Power Negotiations and Politics in an Institutional Rubric of a Colonial Regime
In the third decade of the 19th century, the political landscape of the Brahmaputra valley changed at many levels. The establishment of East India Company’s authority in ‘Assam’ was complete with the Treaty of Yandaboo. The whole phenomenon of the annexation of Assam into the British Indian Empire led to several administrative reorganizations and reforms under the new regime. British colonial rule was distinguished by new systems and institutions of governance. This paper broadly looks at the historical proceedings of the introduction of the Rule of Law and a new legal structure in the region of ‘Assam’. With numerous archival data, this paper seeks to chiefly examine the trajectory of an important element in the new legal apparatus, i.e. the jury in the British criminal courts introduced in the newly annexed region. Right from the beginning of colonial legal innovations with the establishment of the panchayats and the parallel courts in Assam, the jury became an important element in the structure of the judicial system. In both civil and criminal courts, the jury was to be formed from the learned members of the ‘native’ society. In the working of the criminal court, the jury became significantly powerful and influential. The structure meant that the judge or the British authority eventually had no compulsion to obey the verdict of the jury. However, the structure also provided that the jury had a considerable say in matters of the court proceedings, and their verdict had significant weight. This study seeks to look at certain important criminal cases pertaining to the nineteenth century and the functioning of the jury in those cases. The power play at display between the British officials, judges and the members of the jury would be helpful in highlighting the important deliberations and politics that were in place in the functioning of the British criminal legal apparatus in colonial Assam. The working and the politics of the members of the jury in many cases exerted considerable influence in the court proceedings. The interesting negotiations of the British officials or judges also present us with vital insights. By reflecting on the difficulty that the British officials and judges felt with the considerable space for opinion and difference that was provided to important members of the local society, this paper seeks to locate, with evidence, the racial politics at play within the official formulations of the legal apparatus in the colonial rule in Assam. This study seeks to argue that despite the rhetorical claims of legal equality within the Empire, racial consideration and racial politics was a reality even in the making of the structure itself. This in a way helps to enrich our ideas about the racial elements at work in numerous layers sustaining the colonial regime.
Responsibility of States in Air Traffic Management: Need for International Unification
Since aviation industry is one of the fastest growing sectors of the world economy, states depend on the air transport industry to maintain or stimulate economic growth. It significantly promotes and contributes to the economic well-being of every nation as well as world in general. Because of the continuous and rapid growth in civil aviation, it is inevitably leading to congested skies, flight delays and most alarmingly, a decrease in the safety of air navigation facilities. Safety is one of the most important concerns of aviation industry that has been unanimously recognised across the whole world. The available capacity of the air navigation system is not sufficient for the demand that is being generated. It has been indicated by forecast that the current growth in air traffic has the potential of causing delays in 20% of flights by 2020 unless changes are brought in the current system. Therefore, a safe, orderly and expeditious air navigation system is needed at the national and global levels, which, requires the implementation of an air traffic management (hereinafter referred as ‘ATM’) system to ensure an optimum flow of air traffic by utilising and enhancing capabilities provided by technical advances. The objective of this paper is to analyse the applicability of national regulations in case of liability arising out of air traffic management services and whether the current legal regime is sufficient to cover multilateral agreements including the Single European Sky regulations. In doing so, the paper will examine the international framework mainly the Article 28 of the Chicago Convention and its relevant annexes to determine the responsibility of states for providing air navigation services. Then, the paper will discuss the difference between the concept of responsibility and liability under the air law regime and how states might claim sovereign immunity for the functions of air traffic management. Thereafter, the paper will focus on the cross border agreements including the bilateral and multilateral agreements. In the end, the paper will address the scheme of Single European Sky and the need for an international convention dealing with the liability of air navigation service providers. The paper will conclude with some suggestions for unification of the laws at an international level dealing with liability of air navigation service providers and the requirement of enhanced co-operation among states in order to keep pace with technological advances.
Capital Punishment and the Right to Life
A human's right to life is absolute because of the capability to think, be spiritual, and mysterious. Since the beginnings, duration, and possibilities of life itself, that makes life a mystery and therefore cannot be defined. Unless this position is used as the basis of the right to life, then there is a lack of final measurement for any other right or value of a human. Being against capital punishment contradicts characteristics which are mysterious and priority-setting of man so it is never justified. The value of which societies place on human life is how they are built. The basis of any State will always be a concept in terms of being philosophically and morally correct which has to do with the fundamental right to life which cannot be avoided. The underlying assumption is constantly the person's view and his right to life.
The Use of Religious Symbols in the Workplace: Remarks on the Latest Case Law
The debate on the use of religious symbols has been highlighted in modern societies, especially in the field of labour relationships. As litigiousness appears to be growing, the matter requires a careful study from a legal perspective. In this context, a description and critical analysis of the most recent case law is conducted regarding the use of symbols by the employee in the workplace, delivered both by the European Court of Human Rights and by the Court of Justice of the European Union. From this comparative analysis we highlight the most relevant aspects in order to seek a common core regarding the juridical-argumentative approach of case law.
Biopolitical Border Imagery during the European Migrant Crisis: A Comparative Discourse Analysis between Mediterranean Europe and the Balkans
The ongoing migration crisis polemic opens up the debate to the ambivalent essence of borders due to both the legality and legitimacy of the displacement of vast masses of people across the European continent. In neoliberal terms, migration is seen as an economic opportunity, or, on the opposite, as a social disparity; in realist terms, it is regarded as a security threat that calls for mobilization; from a critical standpoint, it is a matter of discourse on democratic governance. This paper sets the objective of analyzing borders through the Foucauldian prism of biopolitics. It aims at defining the specifics of the management of the human body by producing both the irregular migrant as a subject (but prevalently as an object in the discourse) and the political subjectivity by exercising state power in repressive practices, including hate speech. The study relies on the conceptual framework of Bigo, Agamben, Huysmans, among others, and applies the methodology of qualitative comparative analysis between the cases of borders (fences, enclaves, camps and other forms of abnormal spatiality) in Italy, Spain, Greece, the Republic of Macedonia, Serbia and Bulgaria. The paper thus tries to throw light on these cross- and intra-regional contexts that share certain similarities and differences. It tries to argue that the governmentality of the masses of refugees and economic immigrants through the speech acts of their exclusion leads to a temporary populist backlash; a tentative finding is that the status-quo in terms of social and economic measures remains relatively balanced, whereas, values such as freedom, openness, and tolerance are consecutively marginalized.
Gandhi and the Judicial Discourse on Moral Rights
The inclusion of Rights of Author (Moral and Personal Rights) resonate the century long battle of rights of authors, composers, performers across developed and developing countries (whether following civil law or common law systems). But, the juxtaposition of author’s special, moral, personal rights within the legislative framework of Copyright statutes (Indian Copyright Act, 1957, applicable statutes) underscores the foundational role of the right which goes to the root of the constitutional structure of India and philosophies of political and literary leaders like Mahatma Gandhi and Gurudeb Rabindranath Tagore. In the pre-independence era when the concept of moral rights was unknown to both England and India’s statutory laws, the strategic deployment method of Gandhi, his ideologies and thoughts scripted the concept of moral rights for authors/composers. The preservation of Rabindric Style (Characteristic Tagore’s vocal renditions) by Vishwabharati University (successor in interest for Tagore’s literary and musical compositions) prior to the Copyright Amendment of 1999 recognizing Author’s Special Rights in line with 6bis of Berne Convention invigorates the fact that the right existed intrinsically prior to the legislative amendment. The paper would in addition to the academic probe carry out an empirical enquiry of the institution’s (Navjivan Trust and Vishwa Bharati University’s) reasoning on the same. The judicial discourse and transforming constitutional ideals between 1950s till date in India alludes Moral Rights to be an essential legal right which have been reasoned by Indian Courts based on the underlying philosophies in culture, customs, religion wherein composers and literary figures have played key roles in enlightening and encouraging the members of society through their literary, musical and artistic work during pre-independence renaissance of India. The discourses have been influenced by the philosophies reflected in the preamble of the Indian constitution, ‘socialist, secular, democratic republic’ and laws of other civil law countries. Lastly, the paper would analyze the adjudication process and witness involvement in ascertaining violations of moral rights and further summarize the indigenous and country specific economic thoughts that often chisel decisions on moral rights of authors, composers, performers which sometimes intersect with author’s right of privacy and against defamation. The exclusivity contracts or other arrangements between authors, composers and publishing companies not only have an erosive effect on each thread of moral rights but irreparably dents factors that promote creativity. The paper would also be review these arrangements in view of the principles of unjust enrichment, unfair trade practices, anti-competitive behavior and breach of Section 27 (Restrain of Trade) of Indian Contract Act, 1857. The paper will thus lay down the three pillars on which author’s rights in India should namely rest, (a) political and judicial discourse evolving principles supporting moral rights of authors; (b) amendment and insertion of Section 57 of the Copyright Act, 1957; (c) overall constitutional framework supporting author’s rights.
Collective Redress in Consumer Protection in South East Europe: Cross-National Comparisons, Issues of Commonality and Difference
In recent decade, there have been significant developments in the European Union in the field of collective consumer redress. South East European countries (SEE) covered by this paper in line with their EU accession priorities and duties under Stabilisation and Association Agreements have to harmonize their national laws with the relevant EU acquis for consumer protection (Chapter 28: Health and Consumer). In these countries, only minimal compliance is achieved. SEE countries have introduced rudimentary collective redress mechanisms, with modest enforcement of collective redress and case law. The paper is based on comprehensive interdisciplinary research conducted for SEE countries on common principles for injunctive and compensatory collective redress mechanisms emphasizing cross-national comparisons, underlining issues of commonality and difference aiming to develop recommendations for an adequate enforcement of collective redress. SEE countries are recognized by the sectoral approach for regulating collective redress they introduced instead following the experience of majority of EU member states with having adopted horizontal regulatory approach. In most of SEE countries, the laws do not recognize compensatory, but only injunctive collective redress in consumer protection. All responsible stakeholders for implementation of collective redress in SEE countries lack information and awareness on collective redress mechanisms and the way the function in practice. Therefore specific actions are needed in these countries to make the whole system of collective redress for consumer protection operational and efficient. Taking into consideration various designated stakeholders in collective redress in each SEE country, there is a need of their mutual coordination and cooperation in order to develop consumer protection system and policies. By putting in practice the national collective redress mechanisms, effective access to justice to all consumers, the principle of rule of law will be secured, and appropriate procedural guarantees to avoid abusive litigation will be ensured.
Public Participation in Political Transformation: From Coup D'etat in 2014 to the Following Events Leading up to the Proposed Election in 2018 in Thailand
After seizing power in May 2014, the military, backed by anti-government protestors, selected and established their own system to govern the country. They set up the National Council for Peace and Order (NCPO) which committed itself to establishing a People’s Assembly. This aimed to reach a compromise between the conflicting opinions of former pro-government and anti-government protesters. It plans to achieve this through the process of political reform before returning sovereign power to the people via an election in 2018. If a governmental authority is not representative of the people (e.g. a military government), it does not count as a legitimate government. During the last two years of military government, from May 2014 to May 2017, their rule of Thailand has been widely controversial, specifically regarding their commitment to democracy, human rights violations and their manipulation of the rule of law. Democratic legitimacy relies not only on established mechanisms for public participation (like referendums or elections) but also public participation based on accessible and educational reform (often via NGOs) to ensure the free and fair will of the people can be expressed. Through their actions over the last three years, the Thai military government has damaged both of these components, the consequences of which will impact future public participation in politics. The authors make some observations about the specific actions the military government has taken to erode the democratic legitimacy of future public participation: the increasing dominance of military courts over civil courts; civil society’s limited involvement in political activities; the drafting of a new constitution and their attempt to master support through referenda; the structure of the legislative powers (Senate and the members of parliament); and the control of people’s basic freedoms of expression, movement and assembly in political activities. One clear consequence of the military government’s specific actions over the last three years is the increased uncertainty amongst Thai people that their fundamental freedoms and political rights will be respected in the future. This will directly affect their participation in future democratic processes. The military government’s actions will also have influenced potential international engagement (e.g. their response to the UN representatives) in Thai civil society to help educate disadvantaged people about their rights, and about the impact of their participation in the political arena. These actions challenge the democratic idea that there should be a checking and balancing of power between people and government. These examples provide evidence that a democratic transition is crucial during any process of political transformation.
Critical Evaluation of the Transformative Potential of Artificial Intelligence in Law: A Focus on the Judicial System
Amidst all suspicions and cynicism raised by the legal fraternity, Artificial Intelligence has found its way into the legal system and has revolutionized the conventional forms of legal services delivery. Be it legal argumentation and research or resolution of complex legal disputes; artificial intelligence has crept into all legs of modern day legal services. Its impact has been largely felt by way of big data, legal expert systems, prediction tools, e-lawyering, automated mediation, etc., and lawyers around the world are forced to upgrade themselves and their firms to stay in line with the growth of technology in law. Researchers predict that the future of legal services would belong to artificial intelligence and that the age of human lawyers will soon rust. But as far as the Judiciary is concerned, even in the developed countries, the system has not fully drifted away from the orthodoxy of preferring Natural Intelligence over Artificial Intelligence. Since Judicial decision-making involves a lot of unstructured and rather unprecedented situations which have no single correct answer, and looming questions of legal interpretation arise in most of the cases, discretion and Emotional Intelligence play an unavoidable role. Added to that, there are several ethical, moral and policy issues to be confronted before permitting the intrusion of Artificial Intelligence into the judicial system. As of today, the human judge is the unrivalled master of most of the judicial systems around the globe. Yet, scientists of Artificial Intelligence claim that robot judges can replace human judges irrespective of how daunting the complexity of issues is and how sophisticated the cognitive competence required is. They go on to contend that even if the system is too rigid to allow robot judges to substitute human judges in the recent future, Artificial Intelligence may still aid in other judicial tasks such as drafting judicial documents, intelligent document assembly, case retrieval, etc., and also promote overall flexibility, efficiency, and accuracy in the disposal of cases. By deconstructing the major challenges that Artificial Intelligence has to overcome in order to successfully invade the human- dominated judicial sphere, and critically evaluating the potential differences it would make in the system of justice delivery, the author tries to argue that penetration of Artificial Intelligence into the Judiciary could surely be enhancive and reparative, if not fully transformative.
Carolina Maria De Jesus' Narrative in a Fundamental Rights Perspective
Child of the Dark is the work of the Brazilian author Carolina Maria de Jesus, published at the first time by Ática and Francisco Alves in 1960. It is, mostly, a story of lack of rights. It lacks to men who live in the slums what is essential in order to take advantage of the privilege of rationality to develop themselves as civilized humans. It is, therefore, in the withholding of the basic rights that inequality finds space to build itself to be the main misery on Earth. Antonio Candido, a Brazilian sociologist claims that it is the right to literature has the ability to humanize men, once the aptitude to create fiction and fable is essential to the social balance. Hence, for the forming role that literature holds, it must be thought as the number of rights that assure human dignity, such as housing, education, health, freedom, etc. When talking about her routine, Carolina puts in evidence something that has great influence over the formation of human beings, contributing to the way they live: the slum. Even though it happens in a distinct way and using her own linguistics variation, Carolina writes about something that will only be discussed later on Brazil’s Cities Statute and Erminia Maricato: the right to the city, and how the slums are, although inserted in the city, an attachment, an illegal city, a dismissing room. It interests ourselves, for that matter, in this work, to analyse how the deprivation of the rights to the city and literature, detailed in Carolina’s journal, conditions human beings to a life where the instincts overcome the social values.
Nature of Maritime Dispute Resolution by Arbitration: USA as a Reference Point
The aim of this research is to examine the legal mechanism of resolving maritime disputes by arbitration and it would be a reference point on the analysis of USA approaches. In doing so, the research aims to analyse the relevant legal principles in the context of current maritime arbitration practices in selected jurisdictions. The research also aims to ananlyse the advantages and applicability of arbitration in maritime dispute settlements over the litigation and further approaches the role of specialist maritime arbitration institutes in the USA and the position of international merchant organizations in maritime arbitration. Further, research values the legislative aspects of maritime arbitration. The study would evaluate the contemporary issues in maritime arbitration practices in the USA and further analyses the statistical information on maritime arbitration. Finally, the research made remarks to often parallel consequence in USA legal systems in maritime arbitration and despite the fundamental divergences of the applicable principles and practices of maritime arbitration. The research finally suggests the doctrine should reshape with equitable remedies and international maritime arbitration practices with its institutional impact rather than using as statutory rules related maritime arbitration.
The Conundrum of Marital Rape in Malawi: The Past, the Present and the Future
While the definition of rape has evolved over the years and now differs from one jurisdiction to another, at the heart of the offence remains the absence of consent on the part of the victim. In simple terms, rape consists in non-consensual sexual intercourse. Therefore, the core issue is whether the accused acted with the consent of the victim. Once it is established that the act was consensual, a conviction of rape cannot be secured. Traditionally, rape within marriage was impossible because it was understood that a woman gave irrevocable consent to sex with her husband throughout the duration of the marriage. This position has since changed in most jurisdictions. Indeed, Malawian law now recognises the offence of marital rape. This is a victory for women’s rights and gender equality. Curiously, however, the definition of marital rape endorsed differs from the standard understanding of rape as non-consensual sex. Instead, the law has introduced the concept of unreasonableness of the refusal to engage in sex as a defence to an accused. This is an alarming position that undermines the protection sought to be derived from the criminalisation of rape within marriage. Moreover, in the Malawian context where rape remains an offence only men can commit against women, the current legal framework for marital rape perpetuates the societal misnomer that a married woman gives a once-off consent to sexual intercourse by virtue of marriage. This takes us back to the old common law position which many countries have moved away from. The present definition of marital rape under Malawian law also sits at odd with the nature of rape that is applicable to all other instances of non-consensual sexual intercourse. Consequently, the law fails to protect married women from unwanted sexual relations at the hands of their husbands. This paper critically examines the criminalisation of marital rape in Malawi. It commences with a historical account of the conceptualisation of rape and then looks at judgments that rejected the validity of marital rape. The discussion then moves to the debates that preceded the criminalisation of marital rape in Malawi and how the Law Commission reasoned to finally make a recommendation in its favour. Against this background, the paper analyses the legal framework for marital rape and what this means for the elements of the offence and defences that may be raised by an accused. In the final analysis, this contribution recommends that there is need to amend the definition of marital rape. Better still, the law should simply state that the fact of marriage is not a defence to a charge of rape, or, in other words, that there is no marital rape exemption. This would automatically mean that husbands are subjected to the same criminal law principles as their unmarried counterparts when it comes to non-consensual sexual intercourse with their wives.
Enhancing Police Accountability through the Malawi Independent Police Complaints Commission: Prospects and Challenges That Lie Ahead
The police play a critical role in society and are an integral aspect of the rule of law. Equally, respect for human rights is an integral part of professional policing. In view of the vast powers that the police enjoy and the attendant risk of abuse and resulting human rights violations, the need for police accountability and civilian police oversight is internationally and regionally recognised. Policing oversight springs from the duty to investigate human rights violations. Those implicated in perpetrating or covering up violations must be disciplined or prosecuted to ensure effective accountability. Police accountability is particularly important in Malawi given the dark history of policing in the country during the 30-year dictatorial era under President Kamuzu Banda. Described as one of the most repressive regimes in Africa, the Banda administration was characterised by gross state-sponsored violence, repressive policing and human rights violations. Indeed, the police were involved in various forms of human rights abuse including arbitrary arrests and unlawful detentions, torture, and excessive use of force in conducting arrests and public order policing. This situation flourished within a culture of police impunity bolstered in part by the absence of clear oversight mechanisms for police accountability. In turn, there was immense public mistrust of the police. Unsurprisingly, the criminal justice system was one of the priority areas for reform when Malawi adopted its first democratic Constitution in 1994. Section 153 of the Constitution envisions a police service that is, for all intents and purposes, there to provide for the protection of public safety and the rights of persons in Malawi according to the prescriptions of the Constitution and any other law. This position reflects the view that the duty to protect and promote human rights is not incompatible with effective policing. Despite this, the police continue to engage in questionable behaviour in public order policing, excessive use of force, deaths in police custody, ill-treatment, torture and other forms of abuse including sexual abuse. Perpetrators of abuses are occasionally punished, but investigations are often delayed, abandoned, or remain inconclusive. Police accountability remains largely elusive. Commendably, the law does subject the police to significant oversight both internally and externally. However, until 2010, Malawi lacked a wholly independent civilian oversight mechanism specifically mandated to monitor the activities of the Malawi Police Service and held it accountable. This void has since been filled by the Independent Complaints Commission established under the Police Act. This is a positive development that reiterates Malawi’s commitment to the investigation of human rights violations by the police and to ending police impunity. This contribution examines the legal framework for this Commission to project the effectiveness of the Commission. While the framework looks promising on various fronts, there are potential challenges that lie ahead. Malawi must pre-emptively deal with these challenges carefully if the Commission is to have any practical significance in transforming police accountability in the country. Drawing on lessons from other jurisdictions like South Africa, the paper makes recommendations for legislative reform to strengthen the Commission’s framework.
The Legal Nature of Grading Decisions and the Implications for Handling of Academic Complaints in or out of Court: A Comparative Legal Analysis of Academic Litigation in Europe
This research examines complaints against grading in higher education institutions in four different European regions: England and Wales, Flanders, the Netherlands, and France. The aim of the research is to examine the correlation between the applicable type of complaint handling on the one hand, and selected qualities of the higher education landscape and of public law on the other hand. All selected regions report a rising number of complaints against grading decisions, not only as to internal complaint handling within the institution but also judicially if the dispute persists. Some regions deem their administrative court system appropriate to deal with grading disputes (France) or have even erected a specialty administrative court to facilitate access (Flanders, the Netherlands). However, at the same time, different types of (governmental) dispute resolution bodies have been established outside of the judicial court system (England and Wales, and to lesser extent France and the Netherlands). Those dispute procedures do not seem coincidental. Public law issues such as the underlying legal nature of the education institution and, eventually, the grading decision itself, have an impact on the way the academic complaint procedures are developed. Indeed, in most of the selected regions, contractual disputes enjoy different legal protection than administrative decisions, making the legal qualification of the relationship between student and higher education institution highly relevant. At the same time, the scope of competence of government over different types of higher education institutions; albeit direct or indirect (o.a. through financing and quality control) is relevant as well to comprehend why certain dispute handling procedures have been established for students. To answer the above questions, the doctrinal and comparative legal method is used. The normative framework is distilled from the relevant national legislative rules and their preparatory texts, the legal literature, the (published) case law of academic complaints and the available governmental reports. The research is mainly theoretical in nature, examining different topics of public law (mainly administrative law) and procedural law in the context of grading decisions. The internal appeal procedure within the education institution is largely left out of the scope of the research, as well as different types of non-governmental-imposed cooperation between education institutions, given the public law angle of the research questions. The research results in the categorization of different academic complaint systems, and an analysis of the possibility to introduce each of those systems in different countries, depending on their public law system and higher education system. By doing so, the research also adds to the debate on the public-private divide in higher education systems, and its effect on academic complaints handling.
Enforceability of the Right to Education and Rights in Education for Refugees after the European Refugee Crisis
The right to education is a fundamental human right, which has been entrenched in many international and regional treaties and national constitutions. Nevertheless, practice shows that many obstacles impede easy access to quality education for refugees. Overall, the material effects of international human rights legislation on improving (irregular) migrants’ access to social rights in the European countries have remained limited due to the lack of guarantees on effective incorporation in the municipal legal order and due to the lack of effective enforcement mechanisms. After the recent refugee crisis in Europe, this issue has grown in importance. The presentation aims to give a brief overview of the most important issues impeding the effective enforceability of the right to education for refugees. I. Do refugees fall within the scope of application of the relevant human rights treaties and to which extent can they invoke human rights treaties in domestic courts to set aside domestic legislation? II. How is the justiciability of the right to education organized in those treaties? III. What is the legal answer to questions raised in practice when dealing with the influx of refugees in Europe: (i) can refugees be placed in separate schools or classes until they can follow the regular curriculum?; (ii) can higher school fees be asked from pupils without legal documents?; (iii) do refugees have a right to be taught in their own native language until they learn to speak the national language? To answer the above questions, the doctrinal and comparative legal method will be used. The normative framework, as interpreted within Europe, will be distilled from the recent and relevant international treaties and European law instruments (in particular the Convention on the Rights of the Child, the European Convention on human rights, the European Social Charter and the International Covenant on Economic, Social and Cultural Rights) and their underlying policy documents, the legal literature, the (limited) European jurisprudence, and the general comments to those treaties. The article is mainly descriptive in nature. Its aim is to serve as a summary of the legal provisions, case law and legal literature on the topic of the right to education for refugees. The research shows that the reasons for the delicate enforceability of the rights to and the rights in education are multifold. The research will categorize the different contributing factors under the following headings: (i) problems related to the justiciability of international law as such; (ii) problems specifically related to the educational field; (iii) problems related to policy issues in the refugee debate. By categorizing the reasons contributing to the difficult enforceability of the right to education and the rights in education for refugees, this research hopes to facilitate the search for solutions to this delicate problem.
Neutrality in Education: An Analysis of over Fifty Years of Case Law by the European Court of Human Rights
This research gives an overview of over 50 years of case law of the European Court of Human Rights on the topic of neutrality in state schools. It describes the Court’s case law on three different topics: (i) religious signs and symbols, (ii) the content of compulsory courses (religious and other) and (iii) the dismissal of teachers for reasons of lack of neutrality. The final sentence of Article 2 of the First Protocol of the European Convention on Human Rights formulates an obligation of abstention on the part of the government in the area of educational responsibility of the parents. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. The purpose of this provision is to safeguard the possibility of pluralism in education, which the European Court on Human Rights deems essential for the preservation of the ‘democratic society’ as conceived by the Convention. The way States deal with this obligation is to install a form of 'neutral education', which embodies the commitment of the State not to engage in indoctrination in any educational activity. These commitments reach far: they concern not only religious instruction but also the organization of school life, compulsory curricula, and subjects or the wearing of religious signs and symbols. However, this neutrality is not entirely value-free, as the Convention also demands a commitment to pursue and encourage pluralism in education. As a consequence, the Court has dealt with many cases that are at the crossroads of highly sensitive concepts such as neutrality, pluralism, secularity, freedom of religion and freedom of speech and thought. At the same time, the right to quality education for each child must be preserved, which sometimes means the State has to set aside the right of the parents to choose the education that is in conformity with their beliefs. The European Court has shown a great deal of nuance in its case law, each time asking itself what the national identity of a specific state is, before rendering its verdict. The research uses the classical doctrinal and comparative legal method. The research is mainly descriptive in nature, distilling the main points of the Court’s reasoning from all cases rendered on the three selected topics. The Court’s reasoning on these topics is then compared, and reasons for convergences and differences are drawn from the legal literature on each of those topics. By giving an overview of the case law of the Court on three different topics, the research not only shows how several conflicting human rights interconnect within a single topic, i.e. neutrality in education, but also showcases how the European Court of Human Rights maintains its highly respected position by taking into account each of the Member States’ specific characteristics before rendering a nuanced verdict.
The International Fight against the Financing of Terrorism: Analysis of the Anti-Money Laundering and Combating Financing of Terrorism Regime
Financing is important for all terrorists – from the largest organizations in control of territories, to the smallest groups – not only for spreading fear through attacks, but also to finance the expansion of terrorist dogmas. These organizations pose serious threats to the international community. The disruption of terrorist financing aims to create a hostile environment for the growth of terrorism and to limit considerably the terrorist groups capacities. The World Bank (WB), together with the International Monetary Fund (IMF), decided to include in their scope the Fight against the money laundering and the financing of terrorism, in order to assist Member States in protecting their internal financial system from terrorism use and abuse and reinforcing their legal system. To do so, they have adopted the Anti-Money Laundering /Combating Financing of Terrorism (AML/CFT) standards that have been set up by the Financial Action Task Force. This set of standards, recognized as the international standards for anti-money laundering and combating the financing of terrorism, has to be implemented by States Members in order to strengthen their judicial system and relevant national institutions. However, we noted that, to date, some States Members still have significant AML/CFT deficiencies, which can constitute serious threats not only to the country’s economic stability but also for the global financial system. In addition, studies stressed out that repressive measures are more implemented by countries than preventive measures, which could be an important weakness in a state security system. Furthermore, we noticed that the AML/CFT standards evolve slowly, while techniques used by terrorist networks keep developing. The goal of the study is to show how to enhance the AML/CFT global compliance through the work of the IMF and the WB, to help member states to consolidate their financial system. To encourage and ensure the effectiveness of these standards, a methodology for assessing the compliance with the AML/CFT standards has been created to follow up the concrete implementation of these standards and to provide accurate technical assistance to countries in need. A risk-based approach has also been adopted as a key component of the implementation of the AML/CFT Standards, with the aim of strengthening the efficiency of the standards. Instead, we noted that the assessment is not efficient in the process of enhancing AML/CFT measures because it seems to lack of adaptation to the country situation. In other words, internal and external factors are not enough taken into account in a country assessment program. The purpose of this paper is to analyze the AML/CFT regime in the fight against the financing of terrorism and to find lasting solutions to achieve the global AML/CFT compliance. The work of all the organizations involved in this combat is imperative to protect the financial network and to lead to the disintegration of terrorist groups in the future.