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73 pages, 785 KiB

Open AccessProject Report

Report on Enforcing the Rights of Children in Migration

by Warren Binford, Michael Garcia Bochenek, Pablo Ceriani Cernadas, Emma Day, Sarah Field, Marci Hamilton, Ton Liefaard, Benyam Mezmur, Fasil Mulatu, Ann Skelton, Julia Sloth-Nielsen, João Stuart, Hans Van Loon and Jinske Verhellen

Laws 2023, 12(5), 85; https://doi.org/10.3390/laws12050085 - 19 Oct 2023

Viewed by 2082

Abstract

The ILA Study Group began its work by identifying guiding principles that should frame and inform state practices with respect to children in migration. These principles included, but were not limited to, non-discrimination; the best interests of the child; the right to life, [...] Read more.

The ILA Study Group began its work by identifying guiding principles that should frame and inform state practices with respect to children in migration. These principles included, but were not limited to, non-discrimination; the best interests of the child; the right to life, survival, and development; the right of the child to express their views on all matters affecting them; and the right to an effective remedy. The Study Group identified some of the most common rights violations for children in migration such as arbitrary age assessment practices; inadequate and age-inappropriate reception policies and facilities; and immigration detention of children and other coercive practices. The Study Group undertook a multidisciplinary approach by summarizing the research documenting the harmful effects of these practices on child health and well-being. It surveyed (1) treaties and international instruments that might recognize a right or remedy for children on the move; (2) regional and international fora where the claims of children could be heard; and (3) the growing body of regional and international jurisprudence upholding the rights of children in migration. Finally, it identified gaps in the international and regional frameworks and formulated recommendations as to how to ensure children in migration are able to enforce their rights and access justice. Full article

(This article belongs to the Special Issue Protecting the Rights of Children in Migration)

24 pages, 1566 KiB

Open AccessArticle

An Overview of the Portuguese Electronic Jurisdictional Administrative Procedure

by António Mendes Oliveira, Ricardo Lopes Dinis Pedro, Pedro Miguel Alves Ribeiro Correia and Fabrício Castagna Lunardi

Laws 2023, 12(5), 84; https://doi.org/10.3390/laws12050084 - 17 Oct 2023

Cited by 2 | Viewed by 1775

Abstract

In this paper, we seek to define the Portuguese Electronic Jurisdictional Administrative Procedure and characterize the scope and success of its implementation in terms of access to justice and court efficiency. It encompasses different perspectives on the judicial system and the electronic administrative [...] Read more.

In this paper, we seek to define the Portuguese Electronic Jurisdictional Administrative Procedure and characterize the scope and success of its implementation in terms of access to justice and court efficiency. It encompasses different perspectives on the judicial system and the electronic administrative procedure, reflecting the diversity of its authors, and combines a theoretical approach and discussion with statistics produced with official judicial data. Therefore, it introduces the issue and its background and discusses the models and principles of electronic judicial procedure and its representation in the Portuguese judicial procedure and law. It also presents the Portuguese exceptional and temporary regime for conducting judicial hearings in the context of the COVID-19 pandemic, discussing its merits and presenting the corresponding judicial statistics. The paper concludes that the advent of electronic judicial procedure, driven by technological advancements and aiming to achieve procedural effectiveness and efficiency, represents a paradigm shift and a change in the nature of the legal process, i.e., an ontological transformation in the theory of the process that requires a robust conceptual framework, to ensure consistent interpretation and application of procedural law and to guarantee respect for equality and legal certainty. Full article

(This article belongs to the Special Issue Digital Justice and Law Administration)

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17 pages, 303 KiB

Open AccessArticle

Theory of Endorsements: Legislative and Jurisprudential Development in Romania and in the European Union

by Vasilica Negruț and Ionela-Alina Zorzoană

Laws 2023, 12(5), 83; https://doi.org/10.3390/laws12050083 - 16 Oct 2023

Cited by 1 | Viewed by 1226

Abstract

Considered as being the main component element of the advisory procedure, an endorsement is an opinion that an administrative body requests from certain authorities and administrative structures, according to the subject matter of the regulation, to adopt/issue an administrative deed. In this article, [...] Read more.

Considered as being the main component element of the advisory procedure, an endorsement is an opinion that an administrative body requests from certain authorities and administrative structures, according to the subject matter of the regulation, to adopt/issue an administrative deed. In this article, using logical interpretation as well as comparative analysis, we set out to highlight the significance of endorsements in Romania, outline their legal nature, and establish the relationships between the types of endorsements, so that the conclusions may represent a starting point for a future theory of this type of documents. We considered the French specialty literature to give a comparative law note to our approach. At the same time, we considered certain types of endorsements in some European states, based on the analysis of a Codex regarding a series of Constitutions of some European states in order to emphasize the importance they give to these endorsements. We gave an overview of the theory of endorsements through the lens of the existing legislation over time in Romania or rather, its lack thereof. In our study, we also referred to the draft ReNEUAL Code of Administrative Procedure of the European Union, which aims at “transposing the European values into the regulation of administrative procedure related to the non-legislative implementation of European Union law and policy”. We set out on this analysis, considering the lack of legal regulation of endorsements, their legal nature, and their effects, with reference not only to doctrine but also to some cases that we considered for analysis from court practice. In the framework of the new effort to develop the Code (still in the draft form) in Romania, it seems that endorsements will receive their well-deserved place, distinct from simple administrative operations. Our main approach concerns Romanian legislation, doctrine, and jurisprudence, but it also includes a brief analysis of the jurisdiction of the Court of the European Union, with reference to the endorsements issued at the level of the institutions of the European Union. As a general conclusion, we believe that endorsements should be separately regulated, by clearly distinguishing between administrative documents and administrative operations, in the future Code of Administrative Procedure. Full article

14 pages, 293 KiB

Open AccessArticle

Continuity of Parental Responsibility in Child Abduction Cases: Lesson Learned from the Case of Z. v. Croatia

by Mirela Župan and Martina Drventić Barišin

Laws 2023, 12(5), 82; https://doi.org/10.3390/laws12050082 - 29 Sep 2023

Viewed by 1187

Abstract

The new ECtHR decision in the case of Z. v. Croatia suggests that the rule of parental responsibility acquired ex lege is not always easy to implement in child abduction cases. The case primarily raised the question of determining whether the removal or [...] Read more.

The new ECtHR decision in the case of Z. v. Croatia suggests that the rule of parental responsibility acquired ex lege is not always easy to implement in child abduction cases. The case primarily raised the question of determining whether the removal or retention of the child is wrongful in situations when the unmarried left-behind father does not have the ex lege right to parental responsibility under the law of the country of habitual residence, but he has acquired it under the law of the country in which he and the child had their previous habitual residence. In addition, the case of Z. v. Croatia raises the issue of renvoi, the habitual residence of children whose lifestyle involves frequent moving with their parents, as well as the issue of the need for thorough justification of the court decision. The identified difficulties showed the need to clearly elaborate and determine the interrelationship between Article 3 of the Child Abduction Convention and Article 16(3) of the Child Protection Convention, as well as the necessity to evaluate domestic legislative solutions and the practice of the national authorities that have led to the determination of violation in the present case. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

21 pages, 303 KiB

Open AccessArticle

China’s Investment in the Nigerian Energy Sector: A Prognosis of the Dispute Settlement Paradigm

by Wen Xiang and Olubayo Oluduro

Laws 2023, 12(5), 81; https://doi.org/10.3390/laws12050081 - 28 Sep 2023

Viewed by 2413

Abstract

Nigeria is one of the top countries of China’s outward foreign direct investments in energy and power projects to meet the needs of China’s fast-growing energy-intensive industries. Following several risks faced by investors to invest in countries with high levels of regulatory, judicial [...] Read more.

Nigeria is one of the top countries of China’s outward foreign direct investments in energy and power projects to meet the needs of China’s fast-growing energy-intensive industries. Following several risks faced by investors to invest in countries with high levels of regulatory, judicial and political uncertainties that appeared in most African states, including Nigeria, contracting parties often take steps to advance and enhance their investment relations and investment climate through an agreement or bilateral investment treaties. This paper examines the China–Nigeria Bilateral Investment Treaty (BIT) and the investment arbitration framework in place in the energy sector. It includes a general analysis on China–African BITs and features common difficulties and possible ways of addressing them. It analyzes the adequacy or otherwise of these frameworks and the various protections afforded to the contracting parties or the host state and the investors. It contends that the current China–Nigeria BIT is lacking essential environmental and social aspects, including sustainable development, corporate social responsibility, transparency and respect for the human rights of host communities, for the promotion of better China–Nigeria investment relations. Notwithstanding the fact that there has not been any known energy dispute in China–Nigeria-related projects, this paper calls for the need for an effective and efficient dispute resolution mechanism to address future disputes between the parties, in order to promote a favorable investment climate for Chinese (and international) investors willing to invest in Nigeria. It advocates that the China–Nigeria BIT should be unambiguous and well drafted to cover issues that could best address investment disputes in the energy sector. Full article

21 pages, 354 KiB

Open AccessArticle

A Convergence of Violence: Structural Violence Experiences of K–12, Black, Disabled Males across Multiple Systems

by Gayitri Kavita Indar, Christine Sharon Barrow and Warren E. Whitaker

Laws 2023, 12(5), 80; https://doi.org/10.3390/laws12050080 - 20 Sep 2023

Viewed by 1630

Abstract

In American schools, conversations about violence prioritize direct violence, while indirect violence is virtually ignored. This current emphasis overlooks the structural violence deeply embedded in America’s social, political, and economic institutions, which were intentionally designed to exclude, and position some groups to experience [...] Read more.

In American schools, conversations about violence prioritize direct violence, while indirect violence is virtually ignored. This current emphasis overlooks the structural violence deeply embedded in America’s social, political, and economic institutions, which were intentionally designed to exclude, and position some groups to experience disproportionate levels of poverty, exploitation, and persecution. To understand the mechanisms of structural violence, the concepts of structural violence and total institutions, the tenets of Disability Critical Race Theory can be used as an analytical lens. This retrospective comparative case study does so by exploring similarities in the lived experiences of Black, Emotionally Disturbed males across metropolitan special education, juvenile justice, and medical systems. The findings demonstrate a “convergence of violence” in America’s juvenile justice, medical, and special education systems, collectively pushing K–12-aged participants into carceral sites, denying them voice and choice, and providing them with performative healthcare. Our study recommends that institutions designed to serve K–12-aged learners use cross-sector collaborations to meet holistic learner needs and mitigate pressures to engage in direct violence. Specifically, we offer the Whole School, Whole Community, Whole Child model as a national approach to increase access to healthcare providers, social services, and mental health services, as well as engaging community stakeholders critical to understanding the cultural context of learners’ lived experiences. Full article

(This article belongs to the Special Issue Issues in K-12 School Violence in the United States)

20 pages, 304 KiB

Open AccessArticle

Protecting Mothers against Domestic Violence in the Context of International Child Abduction: Between Golan v Saada and Brussels II-ter EU Regulation

by Costanza Honorati

Laws 2023, 12(5), 79; https://doi.org/10.3390/laws12050079 - 19 Sep 2023

Viewed by 1106

Abstract

The need to protect victims of domestic violence is becoming increasingly more important in many States. The 1980 Hague Convention on international child abduction, which in principle requires the child’s return and apparently leaves little scope for protecting the child’s mother, is at [...] Read more.

The need to protect victims of domestic violence is becoming increasingly more important in many States. The 1980 Hague Convention on international child abduction, which in principle requires the child’s return and apparently leaves little scope for protecting the child’s mother, is at times perceived as being at odds with this need. The 2022 US Supreme Court’s judgment in Golan v Saada is set to become a leading case with regard to abductions occurring against the backdrop of domestic violence. Although the USSC, out of necessity, considers the issue from the viewpoint of the US legal system, the impact of the decision will be felt well beyond the country’s borders. This paper will start by analysing the legal arguments developed by the USSC in finding that ameliorative measures are not required by the 1980 Hague Convention, but lie at the discretion of the courts, as well as the general principles laid down by the USSC to guide the exercise of that judicial discretion. Furthermore, the rationale for—discretionary, but still relevant—protective measures will be measured against the Brussels II-ter EU Regulation, which has established a different legal framework for EU Member States. In contrast to the position under pure Hague cases, the EU Regulation now clearly calls on the courts of the State of refuge to guarantee the child’s physical and psychological safety by directly adopting provisional measures, which will apply to the child upon return to the State of habitual residence and which are recognizable and directly enforceable in that Member State. It will be argued in this paper that ameliorative/protective measures offer a means for filling a gap that is increasingly being felt within public opinion, but that could undermine the efficacy of the 1980 Hague Convention. The best way of ensuring that domestic violence cases are not neglected, while at the same time remaining within the confines of the 1980 Hague Convention, would be to adopt expeditious, substantively well-defined, and effective protective measures. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

19 pages, 355 KiB

Open AccessArticle

The Interplay between the 1980 Hague Convention on the Civil Aspects of International Child Abduction and Domestic Violence

by Katarina Trimmings, Onyója Momoh and Konstantina Kalaitsoglou

Laws 2023, 12(5), 78; https://doi.org/10.3390/laws12050078 - 12 Sep 2023

Viewed by 1498

Abstract

When a mother commits an international child abduction, even if she is fleeing domestic violence perpetrated by the left-behind father, she is bound to face complicated return proceedings under the 1980 Hague Child Abduction Convention. Such mothers are particularly vulnerable; apart from the [...] Read more.

When a mother commits an international child abduction, even if she is fleeing domestic violence perpetrated by the left-behind father, she is bound to face complicated return proceedings under the 1980 Hague Child Abduction Convention. Such mothers are particularly vulnerable; apart from the costly, cross-border proceedings they face, if the court issues a return order, they risk returning to the abusive setting they fled from. This article explores avenues for safeguarding the protection of abducting mothers in return proceedings. The authors provide a range of potential avenues for improving the standing of the abducting mother fleeing domestic violence, including judicial and legislative interventions. The article delves deeper by considering the interplay between international child abduction law and international refugee law in cases involving domestic violence allegations. Particular emphasis is given to Article 20 and the growing instances of mothers defending return orders on asylum grounds pursuant to Article 20 and the flowing human rights implications. The authors point out a niche area for further research: the interplay between domestic violence and asylum claims. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

15 pages, 285 KiB

Open AccessArticle

Brazil’s Experience with Recognition and Enforcement of Family Agreements in International Child Disputes

by Lalisa Froeder Dittrich

Laws 2023, 12(5), 77; https://doi.org/10.3390/laws12050077 - 04 Sep 2023

Viewed by 1901

Abstract

Recently, there has been a greater focus on promoting amicable solutions in cross-border family disputes. Alternative dispute resolution methods such as mediation and conciliation have been used in Brazil to avoid lengthy legal proceedings and to resolve cases where concerns about the child’s [...] Read more.

Recently, there has been a greater focus on promoting amicable solutions in cross-border family disputes. Alternative dispute resolution methods such as mediation and conciliation have been used in Brazil to avoid lengthy legal proceedings and to resolve cases where concerns about the child’s situation after their return arise. Parties involved in child abduction disputes can feel motivated to reach an agreement when they can decide on child support, custody, and visitation rights before the child’s return. However, enforcing these agreements can be challenging. This article examines Brazil’s experience with international legal cooperation requests under the Convention of 1980 on the Civil Aspects of International Child Abduction (Child Abduction Convention), where the parties faced these issues whilst trying to resolve their conflicts under one or more of the Hague Conventions. The article uses a pragmatic and empirical approach to address difficulties in recognising and enforcing agreements and available alternatives. It concludes with a suggestion for more cooperation between central authorities and with the idea that although adhering to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children could improve the scenario in Brazil, a new international instrument would significantly enhance the resolution of cross-border disputes, especially for non-European states. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

10 pages, 234 KiB

Open AccessArticle

The Interaction of the 1980 Child Abduction Convention with the Brussels II-ter Regulation: A Focus on the Regime of Recognition and Enforcement

by Maria Caterina Baruffi

Laws 2023, 12(5), 76; https://doi.org/10.3390/laws12050076 - 28 Aug 2023

Viewed by 941

Abstract

The paper addresses the interplay between the 1980 Child Abduction Convention and the Regulation (EU) 2019/1111, briefly presenting the main novelties contained in Chapter III of the Regulation devoted to international child abduction, and then focusing on the provisions concerning the peculiar regime [...] Read more.

The paper addresses the interplay between the 1980 Child Abduction Convention and the Regulation (EU) 2019/1111, briefly presenting the main novelties contained in Chapter III of the Regulation devoted to international child abduction, and then focusing on the provisions concerning the peculiar regime of recognition and enforcement of decisions on this subject matter. Final considerations are drawn with a view to determining whether the Regulation is able to streamline the most critical issues arising from the practical application of the predecessor Regulation (EC) No 2201/2003 and, more broadly, to cope with evolving and challenging cases of child abduction. Full article

(This article belongs to the Special Issue Contemporary Issues Relating to International Child Abduction in Contemplation of the Eighth Special Commission into the Operation of the 1980 Hague Child Abduction Convention (2023))

25 pages, 341 KiB

Open AccessEssay

Privacy, Property, and Third-Party Esteem in Arendt’s Constitutionalism

by Emmett McGroarty and Brendan McGroarty

Laws 2023, 12(5), 75; https://doi.org/10.3390/laws12050075 - 23 Aug 2023

Cited by 1 | Viewed by 1072

Abstract

In On Revolution, Hannah Arendt makes the case that a constitution must account for the need of the human person to participate in the building of society, both as a primordial and continual action of founding. This paper draws on Arendt’s insight [...] Read more.

In On Revolution, Hannah Arendt makes the case that a constitution must account for the need of the human person to participate in the building of society, both as a primordial and continual action of founding. This paper draws on Arendt’s insight on the relationship between privacy and the notion of property, both of which the constitution must protect, as it is dependent on those notions. Property in its fullest sense is the means by which a person interacts with others and establishes a society. Particularly important for this notion of engagement are the concepts of shame and the love of goodness. The actor emerges from the private sphere to interact with others on the strength of the secrecy and confidentiality of her intimate, private relationships. Property is therefore essential to human flourishing and happiness. Following this, the activity of constructing the public forum on the basis of the private is an important feature of Arendt’s constitutionalism. Human Action showers third-party esteem on the actor’s family and friends, binding them to the constitutional structure and strengthening familial relationships and social cohesion. Full article

(This article belongs to the Special Issue Hannah Arendt's Constitutionalism)

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Laws, Volume 12, Issue 5 (October 2023) – 11 articles

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