Laws | December 2022 - Browse Articles

15 pages, 1124 KiB

Open AccessArticle

Spatial Nature and Geographical Characteristics of Drug Crime in Hungary

by Szabolcs Mátyás and Endre Nyitrai

Laws 2022, 11(6), 90; https://doi.org/10.3390/laws11060090 - 19 Dec 2022

Viewed by 2609

Relatively few people in Hungary deal with the investigation of the spatial nature of crime. In connection with drug crime, we rarely find research dealing with this topic. The study shows why it is difficult to examine the spatiality of various drug-related crimes. [...] Read more.

Relatively few people in Hungary deal with the investigation of the spatial nature of crime. In connection with drug crime, we rarely find research dealing with this topic. The study shows why it is difficult to examine the spatiality of various drug-related crimes. It describes the main spatial trends of crime and the presence of criminal organizations in the field of drug trafficking by analyzing the criminal statistics data of the past decades. Political and drug policy changes, as well as the activities of criminal organizations at the international level, are usually hidden behind the spatial changes. In all cases, these also have a significant impact on the spatial distribution of drug use. The present research is primarily looking to answer whether there is a connection between the main focal points of organized crime and the centers of drug crime. Full article

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15 pages, 322 KiB

Open AccessEditorial

The Rule of Law and Human Mobility in the Age of Global Compacts: Relativizing the Risks and Gains of Soft Normativity?

by Marion Panizzon, Daniela Vitiello and Tamás Molnár

Laws 2022, 11(6), 89; https://doi.org/10.3390/laws11060089 - 15 Dec 2022

Cited by 2 | Viewed by 2040

Abstract

The 2016 New York Declaration,1 for the first time in United Nations (UN) history, coalesced a diverging palette of regional and a few multilateral efforts before the UN General Assembly [...] Full article

(This article belongs to the Special Issue Rule of Law and Human Mobility in the Age of the Global Compacts)

25 pages, 353 KiB

Open AccessArticle

Refugees as Migrant Workers after the Global Compacts? Can Labour Migration Serve as a Complementary Pathway for People in Need of Protection into Sweden and Germany?

by Zvezda Vankova

Laws 2022, 11(6), 88; https://doi.org/10.3390/laws11060088 - 06 Dec 2022

Cited by 2 | Viewed by 3436

Abstract

Both the Global Compact for Safe, Orderly and Regular Migration and the Global Compact on Refugees commit states to diversify and expand on labour migration opportunities, in particular by facilitating work-based ‘complementary pathways’ for the admission of refugees. Yet, almost four years after [...] Read more.

Both the Global Compact for Safe, Orderly and Regular Migration and the Global Compact on Refugees commit states to diversify and expand on labour migration opportunities, in particular by facilitating work-based ‘complementary pathways’ for the admission of refugees. Yet, almost four years after their adoption, such pathways remain limited in many cases. It is the aim of this article to examine the constraints posed by existing immigration laws to serve as an admission ground for people in need of protection and the key legal, policy and political issues that need to be addressed to allow the commitments related to labour migration pathways contained in the Compacts to be implemented in national legal systems. In so doing, this article applies a legal and political feasibility lens to evaluate why these pathways for persons in need of protection are often small-scale, underutilized by employers and unwelcoming to potential refugees. It employs a comparative case study methodology drawing on more than 30 semi-structured interviews with stakeholders at the international and national levels in Germany and Sweden. The article concludes that the main challenge to the political feasibility of opening work-based complementary pathways for refugees is politicians’ and policy makers’ traditional thinking of migration and asylum as separate domains. When it comes to challenges to legal feasibility, these stem from entry requirements, lack of sufficient interest among employers who are a key stakeholder in the facilitation of such pathways, as well as issues related to the security of status of potential beneficiaries of such measures. Full article

(This article belongs to the Special Issue Rule of Law and Human Mobility in the Age of the Global Compacts)

14 pages, 268 KiB

Open AccessArticle

Consumers as Unassisted Minors: Asymmetrical Sanction for Unfair Contract Terms

by Grzegorz J. Blicharz

Laws 2022, 11(6), 87; https://doi.org/10.3390/laws11060087 - 29 Nov 2022

Viewed by 2180

Abstract

The consumer distance contract regulated within the European Union was compared to the Roman law solution known by its medieval name as negotium claudicans, thus to the contract with unassisted pupilli (children under the age of puberty, i.e., minors). This article builds on [...] Read more.

The consumer distance contract regulated within the European Union was compared to the Roman law solution known by its medieval name as negotium claudicans, thus to the contract with unassisted pupilli (children under the age of puberty, i.e., minors). This article builds on this comparison and applies it to yet another EU directive which follows even more closely the idea to interfere with the binding nature of contractual terms. The recent case law of the CJEU regarding the sanction enclosed in the Article 6(1) of Directive 93/13/EEC, its implementation into national laws, and the standpoints of various legal doctrines especially in Polish law inspire to ask about the nature of sanction for unfair contract terms and its importance for the modern discussion on the typology of nullity. The paper tries to answer these questions by marrying solutions applied in different times and contexts. It compares the EU sanction with the Roman law of contracts with unassisted minors and with its legacy in European and South African law. Both examples, according to us, are related by the similar nature of the sanctions which bear strikingly similar characteristics: they are asymmetrical and escape the modern typologies of nullity. Full article

20 pages, 435 KiB

Open AccessArticle

A Discourse on Restorative Practice—Participants’ Views of a Divergent Ideology

by Thomas Procter-Legg

Laws 2022, 11(6), 86; https://doi.org/10.3390/laws11060086 - 28 Nov 2022

Viewed by 2275

Abstract

This study is a discourse on restorative practice as a divergent epistemological ideology. It explores the field of restorative practice (RP) through thematic analysis of discursive captures from restorative practitioners and researchers within or associated with the Global Alliance for Restorative Justice and [...] Read more.

This study is a discourse on restorative practice as a divergent epistemological ideology. It explores the field of restorative practice (RP) through thematic analysis of discursive captures from restorative practitioners and researchers within or associated with the Global Alliance for Restorative Justice and Social Justice. It includes elements of what could loosely be considered ethnographic research due to the time spent within restorative spaces, whilst analysing and processing the data. Methods include a restorative approach to research design, using online surveys as prerequisites to in-depth semi structured dialogic interviews. This led to reflexive thematic analysis, whereby three themes were constructed: the importance of congruence; evolution finding spaces for cultivation; and decentralising restorative practice through radical action. It is understood that this study takes a post positivist stance, designed to produce a discourse of participants’ views on RP as a divergent ideology. It is designed to highlight the perceptions of participants from a highly invested group and to promote a wider understanding of how RP interacts with dominant cultures. It would therefore be of interest to those implementing or growing restorative ideas within organisations. Full article

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17 pages, 329 KiB

Open AccessArticle

Pegasus Project: Re-Questioning the Legality of the Cyber-Surveillance Mechanism

by Atul Alexander and Tushar Krishna

Laws 2022, 11(6), 85; https://doi.org/10.3390/laws11060085 - 23 Nov 2022

Cited by 2 | Viewed by 3688

Abstract

States have recently indulged in purchasing surveillance spyware such as Pegasus from big corporations such as the NSO Group to track the activities of its people to curb dissidents. Unfortunately, such incidences are not new in the international domain. Thus, it is imperative [...] Read more.

States have recently indulged in purchasing surveillance spyware such as Pegasus from big corporations such as the NSO Group to track the activities of its people to curb dissidents. Unfortunately, such incidences are not new in the international domain. Thus, it is imperative to analyze the legality of such spyware used by the states with the assistance of foreign corporates under the international framework. In view of the same, the paper while majorly focusing on the significance of right to privacy, traces the standing limitations in the legal mechanism and tries to propose a shared responsibility regime for states and surveillance companies indulging in human rights violations by drawing parallels with the ICoCA mechanism. Full article

(This article belongs to the Topic Emerging Technologies, Law and Policies)

9 pages, 241 KiB

Open AccessArticle

Children’s Rights by Design and Internet Governance: Revisiting General Comment No. 25 (2021) on Children’s Rights in Relation to the Digital Environment

by Christian Djeffal

Laws 2022, 11(6), 84; https://doi.org/10.3390/laws11060084 - 23 Nov 2022

Cited by 1 | Viewed by 1923

Abstract

This article reviews how children’s rights can be considered a driver of internet governance based on general comment No. 25 (2021) on children’s rights in relation to the digital environment. This instrument translates the rights derived from the UN Convention on the Rights [...] Read more.

This article reviews how children’s rights can be considered a driver of internet governance based on general comment No. 25 (2021) on children’s rights in relation to the digital environment. This instrument translates the rights derived from the UN Convention on the Rights of the Child from the pre-digital era to the application of children’s rights to current issues of digitization. In the introduction, I explain how this general comment was drawn up and what its legal significance is. This article briefly summarizes the content of the general comment and then goes on to discuss the main impacts of this instrument on internet governance, namely, substantial shifts, children’s rights by design, the law’s binding nature, and participation. Full article

(This article belongs to the Special Issue International Law as a Driver of Internet Governance)

16 pages, 303 KiB

Open AccessArticle

The Place of the Child in Recent Australian Debate about Freedom of Religion and Belief

by Renae Barker

Laws 2022, 11(6), 83; https://doi.org/10.3390/laws11060083 - 17 Nov 2022

Viewed by 2398

Abstract

Political and legal debate about freedom of religion and belief (FoRB) in Australia has intensified since the same-sex marriage postal survey in 2017. Central to this debate has been children, their parents and institutions (Schools). This paper outlines the place of children in [...] Read more.

Political and legal debate about freedom of religion and belief (FoRB) in Australia has intensified since the same-sex marriage postal survey in 2017. Central to this debate has been children, their parents and institutions (Schools). This paper outlines the place of children in the Australian FoRB since 2017, focusing on the same-sex marriage postal survey debate and subsequent reviews into FoRB. In particular, it highlights the links drawn between same-sex marriage or marriage equality and the Safe School Coalition Australia campaign, the emphasis on parental rights in relation to education about marriage in schools, and the ongoing debate about potential reform to Australia’s suite of anti-discrimination laws, including the failed federal Religious Discrimination Bill. Full article

13 pages, 284 KiB

Open AccessArticle

Higenamine, Anti-Doping, and Plant-Based Cuisine: A Legal Analysis of Higenamine in Sport Anti-Doping Systems

by Salomeja Zaksaite

Laws 2022, 11(6), 82; https://doi.org/10.3390/laws11060082 - 17 Nov 2022

Viewed by 1738

Abstract

Current anti-doping policy seeks to protect honest athletes from biochemically overeducated colleagues. However, there is a question of whether the present policy has gone too far. This article illustrates the ambiguity of the anti-doping policy in the context of a particular plant-based substance [...] Read more.

Current anti-doping policy seeks to protect honest athletes from biochemically overeducated colleagues. However, there is a question of whether the present policy has gone too far. This article illustrates the ambiguity of the anti-doping policy in the context of a particular plant-based substance (i.e., higenamine) by providing certain case studies. In such cases, the process of proof requires the continuous checking of suppositions since an athlete must establish how the prohibited substance could have entered his or her body. This obligation implies that an athlete and the defending team must have legal, medical, dietary, and biochemical knowledge. However, even with all precautions, it is still possible to fail an anti-doping test and be severely punished because it is almost impossible to trace all the sources that caused the prohibited substance to enter the athlete’s body. Full article

28 pages, 383 KiB

Open AccessArticle

Cross-Border Document Service Procedures in the EU from the Perspective of Italian Practitioners—The Lessons Learnt and the Process of Digitalisation of the Procedure through e-CODEX

by Rosanna Amato and Marco Velicogna

Laws 2022, 11(6), 81; https://doi.org/10.3390/laws11060081 - 10 Nov 2022

Cited by 2 | Viewed by 2691

Abstract

An effective legal framework for judicial cooperation in the field of the service of documents is a keystone for the effective functioning of the area of freedom, security and justice, as referred to in the Treaty on the EU. In particular, the proper [...] Read more.

An effective legal framework for judicial cooperation in the field of the service of documents is a keystone for the effective functioning of the area of freedom, security and justice, as referred to in the Treaty on the EU. In particular, the proper service of a claim to the addressee is a necessary step for starting a proceeding and, simultaneously, an essential requirement for exercising the right of defence. The EU has adopted specific provisions to remodel the traditional channel of documents’ transmission with smoother solutions that assist cross-border judicial proceedings. Despite this, the European service procedure is not that straightforward and can still be very complex for most users, causing additional costs and legal uncertainty. Against this background, this article explores how the cross-border service of documents works in practice. It presents the findings resulting from empirical exploratory research carried out in Italy to assess the concrete use and usability of the European rules adopted to simplify, speed up and reduce the costs of cross-border service of judicial and extrajudicial documents in civil and commercial matters, also in the view to support a possible digitalisation of the procedure. Building on empirical data, the paper brings to light the existing hiatus between the service procedure ‘on the books’ and the reality of how the relevant provisions are applied daily, so as to provide solid ground for reflecting on the current situation and on the impact that the recast Regulation 2020/1784/EU, which took effect in July 2022, will have to the supranational system of cross-border service of documents, in particular concerning the potential of the use of ICT to support it. Full article

13 pages, 1014 KiB

Open AccessConcept Paper

Public–Private Interactions in Privacy Governance

by Shin-yi Peng

Laws 2022, 11(6), 80; https://doi.org/10.3390/laws11060080 - 26 Oct 2022

Cited by 1 | Viewed by 2023

Abstract

This paper addresses the possible roles of private actors when privacy paradigms are in flux. If the traditional “informed consent”-based government-dominated approaches are ill-suited to the big data ecosystem, can private governance fill the gap created by state regulation? In reality, how is [...] Read more.

This paper addresses the possible roles of private actors when privacy paradigms are in flux. If the traditional “informed consent”-based government-dominated approaches are ill-suited to the big data ecosystem, can private governance fill the gap created by state regulation? In reality, how is public–private partnership being implemented in the privacy protection frameworks? This paper uses cases from APEC’s Cross-Border Privacy Rules (CBPR) and the EU’s General Data Protection Regulation (GDPR) as models for exploration. The analysis in this paper demonstrates the fluidity of interactions across public and private governance realms. Self-regulation and state regulation are opposing ends of a regulatory continuum, with CBPR-type “collaboration” and GDPR-type “coordination” falling somewhere in the middle. The author concludes that there is an evident gap between private actors’ potential governing functions and their current roles in privacy protection regimes. Looking to the future, technological developments and market changes call for further public–private convergence in privacy governance, allowing the public authority and the private sector to simultaneously reshape global privacy norms. Full article

(This article belongs to the Special Issue International Law as a Driver of Internet Governance)

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Laws, Volume 11, Issue 6 (December 2022) – 11 articles

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