The Rule of Law is a group of legal rules which limit the sovereign power and preserve the individual rights. Before the Declaration of the Rights of Man and of the Citizen of 1789 established a genuine constitutional authority in France, the natural law legitimized politics. At that time, the economy gave to the interest more importance to individual interest and competition between men became a model for the political organization. While Montesquieu and the political economists combine sovereign authority and the self-expression of the vested interest, Rousseau founded society on political right and identified the general will as the guiding principle of political acts. If political philosophers Montesquieu and Rousseau agreed on the respect of freedom and the safety of people, the former detailed the main methods of political organization and called for a restriction of the executive power while the latter confirmed the all- mighty sovereign. The history of the different philosophical, anthropological, economical and legal inputs allows us to moderate the political influences of Montesquieu and Rousseau on the main themes of vested interest, general interest - discussed nowadays in France by legal experts - without reducing them. ; L'État de droit se présente comme un ensemble de règles juridiques qui limite la puissance souveraine et préserve les droits individuels. Avant que la Déclaration des droits de l'homme et du citoyen de 1789 n'acquière en France une véritable autorité constitutionnelle, la loi naturelle légitimait le politique. Si Rousseau a donné à la loi un fondement philosophique avec la volonté générale, Montesquieu a accordé à la concurrence une fonction primordiale dans la reconnaissance conjuguée de la liberté et de la propriété des hommes. A cette époque, l'économie donnait à l'intérêt particulier une importance toute nouvelle et la concurrence entre les hommes devenait même un modèle pour l'organisation politique. Alors que Montesquieu et les économistes associent l'autorité du souverain et ...
The Rule of Law is a group of legal rules which limit the sovereign power and preserve the individual rights. Before the Declaration of the Rights of Man and of the Citizen of 1789 established a genuine constitutional authority in France, the natural law legitimized politics. At that time, the economy gave to the interest more importance to individual interest and competition between men became a model for the political organization. While Montesquieu and the political economists combine sovereign authority and the self-expression of the vested interest, Rousseau founded society on political right and identified the general will as the guiding principle of political acts. If political philosophers Montesquieu and Rousseau agreed on the respect of freedom and the safety of people, the former detailed the main methods of political organization and called for a restriction of the executive power while the latter confirmed the all- mighty sovereign. The history of the different philosophical, anthropological, economical and legal inputs allows us to moderate the political influences of Montesquieu and Rousseau on the main themes of vested interest, general interest - discussed nowadays in France by legal experts - without reducing them. ; L'État de droit se présente comme un ensemble de règles juridiques qui limite la puissance souveraine et préserve les droits individuels. Avant que la Déclaration des droits de l'homme et du citoyen de 1789 n'acquière en France une véritable autorité constitutionnelle, la loi naturelle légitimait le politique. Si Rousseau a donné à la loi un fondement philosophique avec la volonté générale, Montesquieu a accordé à la concurrence une fonction primordiale dans la reconnaissance conjuguée de la liberté et de la propriété des hommes. A cette époque, l'économie donnait à l'intérêt particulier une importance toute nouvelle et la concurrence entre les hommes devenait même un modèle pour l'organisation politique. Alors que Montesquieu et les économistes associent l'autorité du souverain et ...
The Rule of Law is a group of legal rules which limit the sovereign power and preserve the individual rights. Before the Declaration of the Rights of Man and of the Citizen of 1789 established a genuine constitutional authority in France, the natural law legitimized politics. At that time, the economy gave to the interest more importance to individual interest and competition between men became a model for the political organization. While Montesquieu and the political economists combine sovereign authority and the self-expression of the vested interest, Rousseau founded society on political right and identified the general will as the guiding principle of political acts. If political philosophers Montesquieu and Rousseau agreed on the respect of freedom and the safety of people, the former detailed the main methods of political organization and called for a restriction of the executive power while the latter confirmed the all- mighty sovereign. The history of the different philosophical, anthropological, economical and legal inputs allows us to moderate the political influences of Montesquieu and Rousseau on the main themes of vested interest, general interest - discussed nowadays in France by legal experts - without reducing them. ; L'État de droit se présente comme un ensemble de règles juridiques qui limite la puissance souveraine et préserve les droits individuels. Avant que la Déclaration des droits de l'homme et du citoyen de 1789 n'acquière en France une véritable autorité constitutionnelle, la loi naturelle légitimait le politique. Si Rousseau a donné à la loi un fondement philosophique avec la volonté générale, Montesquieu a accordé à la concurrence une fonction primordiale dans la reconnaissance conjuguée de la liberté et de la propriété des hommes. A cette époque, l'économie donnait à l'intérêt particulier une importance toute nouvelle et la concurrence entre les hommes devenait même un modèle pour l'organisation politique. Alors que Montesquieu et les économistes associent l'autorité du souverain et ...
This paper identifies four primary drivers of proactive disclosure throughout history. The first is the need to inform the public about laws and decisions and the public's right to be informed, to know their rights and obligations. The second is the public's demand for the information needed to hold governments accountable both at and between elections. The third is the demand for information in order to participate actively in decision-making. The fourth is the provision to the public of information needed to access government services, which has expanded significantly in the past decade with growth of electronic access to services or 'e-government.' This paper attempts to advance the debate around that question by analyzing the multiple proactive disclosure provisions in national law and international treaties in order to identify the emerging global consensus on the classes of information which should be included in a proactive disclosure regime. The paper examines the practical challenges related to the implementation of proactive disclosure regimes and some of the lessons learned from which principles for making proactive disclosure work in practice can be derived. It concludes by identifying some future challenges and areas where additional research is needed.
The individual in communism was deformed from extreme collectivism and sterilizing ideology! The service toward the cause of communism on this individual was engrafted with a feeling of love for the regime. In these circumstances was created "idol-ideology" and "idol-leadership." This kind of morality and education shaped and mal-nurtured the isolated and submissive individual, a politicized one; the individual that considered himself as a member of the armada with epochal historical mission. The communist system of "Popular Democracy," resurrected the ancient feature of our anthropology built during the ruling of the Ottoman Empire period: "serving and being under command!" So much as the individuals entered into a race with one-another to serve the Party, and in hierarchic order from bottom-up, to serve directly the leadership, even more the main leader. This type of competition was complete with the vice, because of the cultural differences, the routine part of anthropology acted upon the lead of a negative energy, materialized through: lies, slander, intrigues, traps, unfaithfulness, and hate. Serventhood reawakened the ottoman mechanism of serving and faithfulness on family basis, family heritage, on kinship, regionally and nepotistic relationships. The long absence of freedom, as a natural social breathing, as a co-existential instrumental mechanism that widens the spectrum of legal action, the purpose of which is the respect for human rights and their realization with main feature the human dignity and prosperity, nevertheless could not have left traces upon the individual and collective conscience. The elongated historical authoritarianism and the permanent absence of democratic system, the fearful isolation in communism, the absence of any private property, the absence of the freedom of speech: including the religious one, had shaped the Albanian anthropologic-individual deeply deformed and totally unprepared for liberal democracy. All of this situation made the anarchy to be displayed as form of weakness to be oriented. Anthrop-anarchy was created as a transitional form of anthropological groups, which left behind the classical and ideological forms of the organization in communism, and in contact with the free-market economy, with the freedom of movements, with the open society for change; being an unprepared anthropology and lead by incompetent policy-making, occurred that these anthropological groupings to take intermediate forms, illusive traits, unstable structures. Anthrop-anarchy entered in a battle to be legalized by bending the state in its knees, which by its decisions legalized the informality: property and economic wise. So, the footpath was opened for the anarchic individual, who appeared as promoter of the Albanian society in transition. Politics accepted this pressure, because they continue to count their votes. Differently from all of the former Eastern Communist countries, Albania is the only one that has informal property problems in national level. The authoritative power has more dispositions to legalize the informal properties, rather than support by law the legal owners. There are more than 300,000 informal buildings that have been included in the legalization process. This informal reality with national dimensions, shows that in Albania still it is not understood that private property is 9/10 law and 1/10 asset. This is an assassination against the legal statehood. This situation helps to understand why the "democracy through law" does not function. The political parties have morphed in market accessories. Even worse, this mechanism has changed into a system, therefore in Albania there are no poor politicians. Another feature of political party pluralism is the absence of political relativism. The parties sell their ideas and programs as an absolute truth. In these political climate is impossible the function the cultural political pluralism. This is why, the democracy in Albania cannot be considered as functional or simply fragile one. That is an authoritarian democracy that is fed by the exclusiveness philosophy, and that creates conflictual actions, that often end "beheaded" by Ottoman style! It is necessary that the change to create a liberal democracy system must start from education on law, rules, and constitutionality. We must cross the bridge from an Oriental inherited education to a Western Civilization one! DOI:10.5901/ajis.2017.v6n1p97
After the collapse of the Soviet Union, Armenia, Azerbaijan, and Georgia experienced a sharp decline in economic output, prolonged regional conflicts resulting in great numbers of internally displaced persons (IDPs) and refugees, the deterioration of social protection systems, and devastating natural disasters. These circumstances resulted in a dramatic increase in poverty and a decline in the human development index. Poverty has greatly affected women and introduced numerous obstacles and challenges in the promotion of gender equality and advancement of women's rights. Furthermore, women face new challenges with regard to issues such as human trafficking, rights of IDPs, and peacekeeping initiatives. Regional cooperation is necessary to address these issues. This project set out to assess the capacity of civil society organizations (CSOs) to meet the pressing needs for legal literacy, legal aid, and improved access to justice and legal services for poor women in Armenia, Azerbaijan, and Georgia. The primary objectives were as follows: identify laws and institutions that promote women's rights; identify and disseminate successful initiatives that promote women's legal rights and legal literacy and facilitate their access to legal services; and strengthen collaboration among groups working on gender issues in prioritizing women's legal rights. This report is organized around three key dimensions of gender equality: the status of women as far as human capital development is concerned, their status in terms of access to productive resources, and their status and protection under the law.
Marriage and family are natural and fundamental institutions that are constantly being eroded and threatened to be dissolved due to the enactment of positive norms that facilitate at-fault divorce which are, in essence, anticonstitutional. In the light of Natural Law, International Law and the Catholic Scholar doctrine, this essay interprets the legal and social problems derived from the constant attacks on family and marriage by the political community. Furthermore, it beckons the search for instruments protective of man's dignity and freedom, in the face of the arrogance of the social forces and the potential arbitrarities of power. It also establishes the need to confer an institutional character to marriage, basing it on a public, social and legally recognized act; and proposes that society as a whole, is responsible for the care and promotion of the family. ; El matrimonio y la familia son institutos naturales y fundamentales constantemente erosionados y amenazados de disolución debido a la dación de normas positivas que facilitan el divorcio por causales, en esencia, anticonstitucionales. En el presente ensayo se interpreta, a la luz del derecho natural, el derecho internacional y la doctrina católica, la problemática legal y social derivada de los constantes embates a la familia y el matrimonio por parte de la comunidad política. Asimismo, se hace un llamado a la búsqueda de instrumentos de protección de la dignidad y libertad del hombre, ante la prepotencia de las fuerzas sociales y las potenciales arbitrariedades del poder. Establece la necesidad de conferir un carácter institucional al matrimonio, fundándolo sobre un acto público, social y jurídicamente reconocido; y propugna que la responsabilidad en el cuidado y la promoción de la familia compete principalmente a toda la sociedad.
A 2018 report from the Center for Strategic and International Studies, in partnership with computer security company McAfee, estimated that cybercrime costs the world almost $600 billion or .8% of the global Gross Domestic Product (CSIS, 2018, p. 4). In response to this booming element of transnational crime, states, private sector entities, non-governmental organizations, and individual citizens have sought to implement systems for the investigation, prosecution, and restitution of these crimes. One such solution is the development and enactment of international law. On December 27, 2019, the General Assembly of the United Nations passed Russia-led resolution A/74/401, entitled "Countering the use of information and communications technologies for criminal purposes (United Nations, 2019, Countering the use)." Vehemently opposed by Western states such as the United States, the resolution approved the establishment of a committee of experts to evaluate the potential for an international cybercrime treaty (United Nations). While international cooperation of this kind is commendable, Western states and human rights groups have professed concerns that the vague language of the resolution has the potential to erode the human rights protections afforded to citizens under international law (Hakmeh & Peters, 2020). The purpose of this paper is to identify the human rights concerns of Russia's proposed United Nations resolution and analyze the obligations the international community has to uphold relevant human rights protections while balancing international cooperation necessitated by international law and legal norms. The first section of this paper provides historical background on the relationship between cyber issues like cybercrime and international law. ; Winner of the 2020 Friends of the Kreitzberg Library Award for Outstanding Research in the College of Graduate and Continuing Studies Graduate category. ; Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 1 International Law & the Cyber Domain: Assessing the Human Rights Concerns of Cyber Legislation GD520 International Law and the International System Dr. John Becker Norwich University College of Graduate and Continuing Studies Kathryn R. Lamphere 23 May 2020 Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 2 Introduction A 2018 report from the Center for Strategic and International Studies, in partnership with computer security company McAfee, estimated that cybercrime costs the world almost $600 billion or .8% of the global Gross Domestic Product (CSIS, 2018, p. 4). In response to this booming element of transnational crime, states, private sector entities, non-governmental organizations, and individual citizens have sought to implement systems for the investigation, prosecution, and restitution of these crimes. One such solution is the development and enactment of international law. On December 27, 2019, the General Assembly of the United Nations passed Russia-led resolution A/74/401, entitled "Countering the use of information and communications technologies for criminal purposes (United Nations, 2019, Countering the use)." Vehemently opposed by Western states such as the United States, the resolution approved the establishment of a committee of experts to evaluate the potential for an international cybercrime treaty (United Nations). While international cooperation of this kind is commendable, Western states and human rights groups have professed concerns that the vague language of the resolution has the potential to erode the human rights protections afforded to citizens under international law (Hakmeh & Peters, 2020). The purpose of this paper is to identify the human rights concerns of Russia's proposed United Nations resolution and analyze the obligations the international community has to uphold relevant human rights protections while balancing international cooperation necessitated by international law and legal norms. The first section of this paper provides historical background on the relationship between cyber issues like cybercrime and international law. International Cyber Law Background The cyber domain is often presented as another realm, a world that exists outside of the mostly tidy borders the international community has used to separate themselves. Aligning with Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 3 this view is the notion that cyberspace cannot be regulated because it expands beyond the traditional idea of territorial sovereignty (Kanuck, 2010, p. 1573). These ideas raise two concerns over the identification and prosecution of cybercrime. The first concern is the conflict between "cybercrime, which is global in scale, and police activities that are confined to national borders (Cangemi, 2004, p. 166)." The conflict arises in the very structure of the Internet, which "can be characterized as a multitude of individual, but interconnected, electronic communications networks (Zekos, 2008, p. 30)." This interconnectedness has created a grey area within the legal system, where no one entity has regulatory control over what happens in that area. The second concern is far more technical and highlights the transient nature of information and data (Cangemi, 2004, p. 166). The source of information can be easily masked to hide its actual location, and data "may be amended, moved, or altered in a few seconds (p. 166)." The speed in which data travels presents a significant hurdle to the legal and law enforcement mechanisms typically used to investigate crimes. As Cangemi notes, this creates "an appreciable risk that the evidence of cyber-offences will disappear" long before implementing the required resources (p. 166). Nevertheless, despite these concerns, "nation-states do strive to exercise their sovereignty over cyberspace (Kanuck, 2010, p. 1573)." The physical elements of cybercrime, such as the location of the people perpetrating the crimes or the location of the hardware used to execute the crimes, are used as a connecting link to allow governments "to address cyber conflicts involving both state and nonstate actors as matters to be resolved by sovereign powers under their respective legal systems (p. 1573)." When evidence moves beyond territorial borders, states seek to invoke bilateral or international action to further pursue the crime. This model follows the same formula that society developed over time, whether it be in stopping crimes such as international drug trafficking or heinous acts of terrorism. The international community is well-Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 4 versed in this cycle, and the "nature of the international legal system affords this sovereign-centric approach primacy under the United Nations (U.N.) Charter regime (p. 1573)." If the international community is content in continuing to use this cycle, then "international legislation and action are essential to combat the phenomenon" of cybercrime (Pocar, 2004, 27). The essential requirement of international involvement and negotiation has rung true in the late 20th and early 21st centuries, as the international community takes steps to evolve international law to include cyber issues, specifically cybercrime. The 1980s introduced international consultation on cybercrime by multiple organizations. In 1983, the Organization for Economic Cooperation and Development (OECD) commissioned a two-year study focusing "on the possibility of harmonizing and internationalizing national cybercrime laws (Brenner, 2012, p. 133)." OECD later published a report in 1986 summarizing the results of the study and recommending countries criminalize certain cybercrimes. In 1985, the Council of Europe convened its own study, which involved a four-year focus on "the legal issues raised by cybercrime (p. 133)." In 1997, the Council of Europe convened another study tasked with "the drafting of a cybercrime treaty that would harmonize national laws dealing with cybercrime offenses and investigations (p. 133). In 2001, the study's efforts came to fruition in the creation of the Convention of Cybercrime. Also referred to as the Budapest Convention, the international treaty entered into law in July 2004 with the principle objective of "pursuing a common criminal policy aimed at the protection of society against cybercrime, especially by adopting appropriate legislation and fostering international co-operation (Council of Europe, 2001, Preamble)." As of 2018, 29 states have ratified the treaty, but the rapid development of technology has resulted in the convention becoming outdated, leaving governments and organizations calling for a new treaty (Murphy, 2018, p. 549) (Shackelford, 2014, p. 312). Russia's 2019 United Nations resolution is the latest attempt to modernize international cyber Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 5 law and has received much adulation despite its vague, concerning language and human rights implications. The next section of this paper addresses human rights and provides an overview of states' obligations to this arena as members of the international community. Human Rights & the International Community Modern international human rights law begins with the first article of the Charter of the United Nations (UN), which dictates that one of the purposes of the UN is to "achieve international cooperation…in promoting and encouraging "respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion (Buergenthal, 2006, p. 785)." While the Charter provided minimal specificity as to what "respect for human rights" entailed, this provision and others within the Charter catalyzed a new international perspective on human rights. In joining the United Nations, members inherently accepted "the proposition that the Charter had internationalized the concept of human rights (p. 787)." Furthermore, the Charter insinuated that "states were deemed to have assumed some international obligations relating to human rights (p. 787)." Articles 55 and 56 of the Charter cemented the beginnings of these obligations, requiring member states to "take joint and separate action in co-operation with the Organization for the achievement of purposes" such as promoting "universal respect for, and observance of, human rights and fundamental freedoms for all (United Nations, 1945, Article 55, 56)." The specificity of human rights became more overt when the United Nations devoted the UN Commission on Human Rights to the task of drafting non-legally-binding human rights instrument. In December 1948, the UN General Assembly unanimously adopted the Universal Declaration on Human Rights (Murphy, 2018, p. 402). Composed of thirty articles, the declaration instituted vital human rights and eventually "served as a template for numerous subsequent treaties on human rights (p. 404)." As a result, the Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 6 Universal Declaration on Human Rights "has come to be accepted as a normative instrument in its own right (Buergenthal, 2006, p. 787)." Both documents uphold two pedestals of traditional international law as it pertains to human rights. The first pedestal retains responsibility for "the treatment by one state of another's nationals, an area known as state responsibility for injury to aliens (p. 389)." Although addressed at the state level, this notion asserts that individuals are afforded certain protections when in another state. The second pedestal, advanced by scholars such as Hugo Grotius, focuses on "the protection of persons against the acts of their own governments (p. 389)." It is this pedestal that introduces what is now known as humanitarian intervention, or the "idea of state intervening to protect the other state's nationals (p. 389)." Together, both the Charter of the United Nations and the Universal Declaration are "considered to spell out the general human rights obligations of all UN member states," of which there are now 193 (Buergenthal, 2006, p. 787) (Murphy, 2018, p. 59). Each international legal instrument has lent itself to the creation of international institutions dedicated to monitoring "compliance by the states parties with the obligations imposed by these instruments (Buergenthal, 2006, p. 788)." Such institutions include entities like the UN Human Rights Council and the Office of the United Nations High Commissioner for Human Rights (p. 788). Together, the instruments and institutions "laid the normative foundation of the contemporary international human rights revolution" and "influenced, in part at least, the contents of the legal norms under which international criminal tribunals operate today (p. 791)." The criticality of these elements to the international system, particularly as it pertains to international law, is justification for using each as measuring tools with which to judge the new UN cyber-focused resolution objectively. The third section of this paper will assess the purpose of the resolution and explain the supporting argument for its contents. Supporting Arguments & Analysis of A/74/401 Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 7 In order to truly understand the intent of international laws, it is crucial to develop an understanding of the stances actors take concerning the specific issues at hand. This understanding is of particular importance when discussing Resolution A/74/401 and the underlying views of cyberspace. Two opposing perspectives lie at the heart of debates surrounding the cyber domain and Internet governance and center around the notion of sovereignty. The first perspective is that "many governments are attempting to exert sovereignty in cyberspace in the same way as they do in physical domains (Nocetti, 2015, p. 111)." For these governments, the dominance of private sector institutions within cyberspace and "the unfettered internet access of their fellow citizens" are causes of concerns (p. 111). This sentiment is particularly true within the Russian government. Under its traditional views of governance, Russia "conceives of cyberspace as a territory with virtual borders corresponding to physical state borders, and wishes to see the remit of international laws extended to the internet space (p. 112)." Furthermore, Russia's domestic fears of an open Internet fuel its international concerns. Russia sees the Internet as "politically disruptive because it enables citizens to circumvent government-controlled 'traditional media (p. 113).'" It aligns this perspective "with the inherently authoritarian nature of the Russian regime (p. 114)." Russia's negative perception of the Internet as it is today ultimately lends itself to Russia's ideal mechanism of perpetuating its belief that "global internet governance is envisioned as an issue of high politics in which states - and the interstate balance of power-play – play an essential role (p. 116, 117)." Under this mechanism, it is little wonder that Russia has led international legal initiatives to refine control over the Internet since the Council of Europe's enactment of its Convention on Cybercrime. In a Ministry of Foreign Affairs press release following the General Assembly's adoption of Resolution A/74/401, Russia proclaimed that the "resolution shows that the world community urgently needs to develop a universal, comprehensive, and open-ended convention Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 8 on countering cybercrime (Ministry of Foreign Affairs, 2019)." The adopted resolution's language appears to align with this projected intent from Russia. The resolution stresses "the need to enhance coordination and cooperation among States in combating the use of information and communications technologies for criminal purposes" and notes "the importance of the international and regional instruments in the fight against cybercrime (United Nations, 2019, Countering the Use)." In order to fulfill these objectives, the resolution establishes an "intergovernmental committee of experts, representative of all regions" that will "elaborate a comprehensive international convention on countering the use of information and communications technologies for criminal purposes (United Nations, 2019)." Remarks of supporting nations support this appearance of cohesion. The representative from Nicaragua indicated the resolution would address cybercrime "in a more representative, democratic and transparent manner, taking into account the individual circumstances of developing and developed countries (Third Committee, 2019, Meetings Coverage)." China echoed this support, stating the resolution "is conducive to filling legal gaps in international cooperation (Third Committee)." At the same time, Belarus declared that "international cooperation is vital in investigating and combating cybercrime (Third Committee)." At face value, the resolution is a gesture of goodwill, a written contract to pursue options to disrupt cybercrime that will benefit all states. However, Russia's press release takes these notions a step further, realigning its message to its traditional view of international politics. It notes, "the resolution proposed by Russia essentially enhances states' digital sovereignty over their information space and ushers in a new page in the history of global efforts to counter cybercrime (Ministry of Foreign Affairs, 2019)." Furthermore, the press release dictates that the "convention must be based on the principles of respecting state sovereignty and non-interference in internal affairs (2019)." There are two Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 9 essential points within this statement that require further analysis. The first is the reassertion of the authoritarian construct with which Russia chooses to view cyberspace. In a press release initially dedicated to lauding the necessity of international cooperation, Russia simultaneously defaults to its traditional views of the international community and advocates for a "digital Westphalia (Nocetti, 2015, p. 117)." In recognizing sovereignty, Russia insinuates that the international community will successfully legislate mechanisms that will reduce cybercrime. A quick review of the supporting states in favor of the resolution upholds Russia's authoritarian views (United Nations, 2019, Countering the Use). In addition to China, Nicaragua, and Belarus, countries like Iran, Syria, Venezuela, Cuba, and the Democratic People's Republic of Korea are only some of the 88 Member States of the General Assembly who voted to adopt the resolution. Unsurprisingly, these states also abide by similar authoritarian perspectives on international law and sovereignty. China, for example, maintains a "comprehensive, multidimensional system that governs Internet infrastructure, commercial and social use as well as legal domains (Liang & Lu, 2010, p. 105)." This system supports "Internet censorship" and "China's single-party political system and its heavy intervention in Internet development (p. 105)." Given the nature and history of these states' political systems and methods of governance, the sudden focus on international cooperation generates questions of the underlying goals that may hide behind the official demands of the resolution. The second point requiring acknowledgment is the additional re-emphasis of sovereignty while also emphasizing non-interventionist beliefs in discussing non-interference in internal affairs. The resolution itself makes no mention of sovereignty or internal affairs beyond assisting countries with improving "national legislation and frameworks and build the capacity of national authorities" to deal with cybercrime (United Nations, 2019, Countering the Use). Despite the lack of language on this topic, the leading state on this initiative, Russia, felt the need Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 10 to emphasize its sovereignty in a press release about the resolution (Ministry of Foreign Affairs, 2019). Once again, Russia gives the impression that there may be a hidden desire layered within the words of the resolution. Additionally, the concept of non-interference within the international system is not without exceptions. The most critical exception being suspicion of human rights violations. As previously stated, humanitarian intervention and protecting citizens from their own government is a staple of international human rights law (Murphy, 2018, p. 389). Therefore, while non-interference in domestic matters is undoubtedly an essential tenet of international law, the resolution cannot call for international cooperation to combat cybercrime and simultaneously ignore the international cooperation required to maintain peace and security (United Nations, 1945, Charter of the United Nations). The next section of this paper will address these obligations to cooperation as it pertains to human rights while also highlighting the opposing arguments against Resolution A/74/401. Opposing Arguments for A/74/401 & Analysis of Human Rights Concerns The first perspective at the heart of the cyber domain debates, as described previously, is modeled after authoritarian beliefs and government control. The second perspective, modeled after a more Western approach to governance, is the belief of a free and open Internet that should remain decentralized and that "the best regulatory system is one that develops organically (Shackelford, 2013, p. 53)." A free Internet is more firmly the belief of the United States. This idea introduces the initial context necessary to understand the United States' opposition to the Russian-led cybercrime resolution. Even before the rapid development of the Internet, American foreign policy internalized the notion of "free flow of information internationally as an important element of national security (McCarthy, 2011, p. 92)." Former Secretary of State George Schultz argued that the free flow of information "undermined the Soviet Union and authoritarianism (p. 92, 93)." At its earliest beginnings, the Internet was a product of American ingenuity and, as a Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 11 result, built with a bias for "American libertarianism (p. 93)." In the present, the West has developed this concept in the "context of freedom expression, protection of intellectual property rights, and national security (Powers & Jablonski, 2015, p. 3)." As former Secretary of State Clinton asserted, the United States and other Western nations support the "freedom to connect" in opposition to efforts by states such as China, Iran, and Russia to create state-level information infrastructures designed for censorship (p. 3). The historical rivalry and disagreement between the two states on information, particularly as it pertains to cyberspace, only further roots the United States' opposition to the new United Nations cybercrime resolution. In its statement to the United Nations during the 49th & 50th meetings of the Third Committee, the United States expressed disappointment "with the decisions of the sponsors of this resolution to bring it to the Third Committee (United States Mission to the United Nations, 2019)." Contrary to the resolution's focus on cooperation, the United States' proclaimed the resolution would "drive a wedge between Member States and undermine international cooperation to combat cybercrime at a time when enhanced coordination is essential (United States Mission to the United Nations)." Furthermore, the United States asserted Russia's actions in introducing the resolution essentially bypass the "expert-driven, consensus-based process and therefore is not in line with their precedent (United States Mission to the United Nations)." Other Western states appear to agree with the United States assertions, as states such as the United Kingdom, Australia, France, Republic of Korea, and Germany composed part of the 58 Member States who opposed the adoption of the resolution (United Nations, 2019, Countering the Use). In a manner similar to the states in favor of the adoption, some opposed states made remarks in agreement with those of the United States during the Third Committee. Finland, on behalf of the European Union, remarked that "there is no consensus on the need for a new international instrument to fight cybercrime" and that the draft "represents a duplication of resources (Third Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 12 Committee, 2019, Meetings Coverage). Canada and Australia presented similar sentiments, remarking that "the Budapest Convention on Cybercrime is an important baseline for international cooperation" and that the new resolution "seeks to undercut consensus and will diminish existing global efforts that are already delivering results (Third Committee, 2019)." There is one remaining argument against the new cybercrime resolution: the potential that the document's vague language will create an environment where human rights will be more easily violated if left unchecked (Hakmeh & Peters, 2020). In a letter to the United Nations General Assembly, 37 organizations and six individuals expressed their concern for human rights protections as they pertain to the cybercrime resolution (Association for Progressive Communications (APC), 2019, Open Letter, p. 4). The first concern is a lack of clarity surrounding the scope of the "use of information and communications technologies for criminal purposes (APC, p. 1)." If left undefined, the language in the resolution arguably "opens the door to criminalising ordinary online behaviour that is protected under international human rights law (APC, p. 1)." If steps to do so were taken as a result of the new resolution, they would be in direct violation of the United Nations High Commission for Human Rights; who stated in 2011 that "human rights are equally valid online as offline (Shackelford, 2019, p. 168)." The second concern offered by non-government entities is the increasing trend in "criminalising ordinary online activities of individuals and organisations through the application of cybercrime laws (APC, 2019, Open Letter, p. 1, 2)." The letter even goes so far as to quote the UN Special Rapporteur over these concerns, that the "surge in legislation and policies aimed at combating cybercrime has also opened the door to punishing and surveilling activists and protestors in many countries around the world (APC, p. 2)." If used in such a manner, these initiatives, in addition to the UN cybercrime resolution, are in direct violation of the Charter of United Nations and the Universal Declaration on Human Rights. Within the Charter of the United Nations, efforts to Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 13 restrict or punish opposition elements such as activists or protestors violates Articles 55 and 56, which requires states to cooperate with the UN in achieving the organizations' purposes such as promoting human rights (United Nations, 1945, Article 55, 56). The Universal Declaration on Human Rights provides more specific language with which to attribute potential violations. The open letter notes that legislation of this kind is used to "criminalise legitimate forms of online expression, association and assembly through vague and ill-defined terms that allow for arbitrary or discretionary application (APC, 2019, Open Letter, p. 2)." Immediately, legislation that allows for criminalization of these elements is in direct violation of Articles 18, 19, and 20, which declare "all persons have a right to freedom of thought, conscience, religion, and assembly (Murphy, 2018, p. 402)." Furthermore, violations such as these also violate article two, which guarantees people "the right to life, liberty, and security" and dictates that "these rights are to be held without discrimination of any kind (Murphy, p. 402, 403)." Upholding these rights within cyberspace continues to fall in line with the Western perspective on the Internet. As McCarthy quotes, "the Internet is arguably the greatest facilitator for freedom of expression and innovation in the world today (McCarthy, 2011, p. 94)." The status of the Universal Declaration on Human Rights as "legitimate norms within the international system" permits this interpretation and application of international law to future resolutions (p. 94). If states are signatories to the declaration, any future adoption of any resolution must adhere to the principles and freedoms guaranteed by it. Resolution A/74/401 does refer to human rights protections, "reaffirming the importance of respect for human rights and fundamental freedoms in the use of information and communication technologies (United Nations, 2019, Countering the Use)." However, the resolution's open language is in direct contradiction to this promise, if not clarified. As the open letter indicates, "simply reaffirming the importance of respect for human rights" is "insufficient to safeguard human rights while Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 14 countering cybercrime (APC, 2019, Open Letter, p. 2)." The final section of this paper recommends additional actions that may further unify opposing entities on this resolution while simultaneously addressing all human rights concerns. Recommendations The Russian-led supporters of the resolution and the United States-led opposition are unified in one common element, at least in writing. The element is that consensus and international cooperation are vital in addressing cybercrime (Ministry of Foreign Affairs, 2019) (United States Mission to the United Nations, 2019). This notion is in concert with the Council of Europe, who remains the only entity to successfully orchestrate an international cybercrime treaty (Council of Europe, 2004, Convention on Cybercrime). In 2001, the Council of Europe postulated that "solutions to the problems posed must be addressed by international law, necessitating the adoption of adequate international legal instruments" that can "ensure the necessary efficiency" required to combat cybercrime (Pocar, 2004, p. 28). If the international community determines that another cybercrime treaty is required within the intergovernmental committee of experts authorized by Resolution A/74/401, then the new treaty should consider the aims of the Council of Europe Convention on Cybercrime (United Nations, 2019, Countering the Use). In doing so, the United Nations should strive to create a "basic framework for the establishment by contracting states of domestic substantive and procedural laws" in a manner that allows states to "cooperate expeditiously with one another (Pocar, 2004, p. 30)." If successful, the United Nations will be able to "establish procedures for relevant international relations" and provide "forms of cooperation between national judicial authorities as many interact with each other both swiftly and efficiently (p. 31)." Furthermore, the necessity of these requirements is supported by the very nature of the "the world-wide dimension of the Internet," Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 15 which "implies that its illegal use and related offenses must prompt responses and concerted efforts from all relevant domestic and international authorities (p. 34)." The non-governmental organizations' open letter to the United Nations supports the need for cooperation but takes it one step further than the states themselves. In its current structure, the Internet is a public-private endeavor, with private entities dominating cyberspace (Nocetti, 2015, p. 111). The present language of the United Nations cybercrime resolution allows for an intergovernmental committee of experts. However, it does not expand on the actual composition of the committee (United Nations, 2019, Countering the Use). Noting that Russia and other authoritarian regimes prefer non-government entities to use the government as a proxy for communication, it can be inferred that a Russia-led resolution intends the committee to be comprised of only government entities (p. 117). The open letter rightly points out that collaboration on cyber issues must expand beyond state cooperation. Addressing cybercrime is "necessarily a multi-stakeholder endeavour" that "requires government officials and experts, members of the technical community, civil society, the private sector, and scientific and research institutions (APC, 2019, Open Letter, p. 4)." An assessment of this viewpoint reveals that a committee dedicated to combatting cybercrime cannot rely on government expertise alone. In order to accurately reflect the composition and requirements of a private-public Internet, all discussions surrounding this resolution should involve both private and public entities. Therefore, the committee should be reformed to more accurately reflect the Internet's users. In doing so, the United Nations breaches the divide between authoritarian and more democratic governments, further increasing cooperation on this resolution. However, increased cooperation through a broader, inclusive committee and implementation of lessons learned from the Council of Europe Convention on Cybercrime will not ensure that the future convention successfully resolves the resolution's weaknesses. In Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 16 modern-day, the international system emphasizes international human rights more than ever before, as "this branch of international law has experienced phenomenal growth over the past one hundred years (Buergenthal, 2006, p. 807)." This growth has contributed to the "growing political impact of human rights on the conduct of international relations and the behavior of governments (p. 807)." If real success is desired within international governance, then the committee established under the "Countering the use of information and communications technologies for criminal purposes" resolution must account for human rights protections when determining the requirements of the "comprehensive international convention (United Nations, 2019, Countering the Use)." As the representative from Costa Rica during the 49th and 50th meetings of the Third Committee, "the international community must protect and observe fundamental freedoms, including the right to privacy (Third Committee, 2019, Meeting Coverage)." Until there is consensus on "sensitive topics such as…State responsibility to prioritize and protect human rights," the future proposed convention will fall short of its goal of achieving complete international ratification (Third Committee). Conclusion As cyberspace expands in conjunction with the rapid advancement of technology, the fear of the unknown drives further division between already opposing states in the international system. Resolution A/74/401 is the latest testament to the evolution of politicization within Internet governance. In addressing a topic that impacts every Internet-accessible region of the world, the resolution simultaneously magnifies the opposing perspectives of states as it pertains to sovereignty within the cyber domain. Furthermore, it reignites the protracted debate over whether or not human rights obligations addressed in such documents as the Charter of the United Nations or Universal Declaration on Human Rights are legally binding. Preventing further polarization requires both an acknowledgment of a fracturing international system of Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 17 governance and a proposed solution to address the issue. While state-centric governance provides legitimacy and the potential for a higher allocation of resources dedicated to protecting the Internet, increased sovereignty also "risks sacrificing innovation, complicates the regulatory environment of cyberspace, and may threaten a positive vision of cyber peace (Shackelford, 2013, p. 50)." These risks are why an alternative method to an intergovernmental committee must develop in response to the resolution. This method should integrate a multi-stakeholder construct to more fully recognize the competing impacts of cybercrime and fairly address the allegations of human rights infringement. One such method is polycentric governance, a system composed of "diverse organizations and governments working at multiple levels" in order to "increase levels of voluntary cooperation or increase compliance with rules established by governmental authorities (p. 330)." Individually, each organization or type of government faces its own unique hurdles. Together, they "contribute to a governance regime that is multi-level, multi-purpose, multi-type, and multi-sectoral in scope that could complement the top-down governance model increasingly favored" by states such as Russia or China (p. 331). Implementing polycentric governance to more equitably debate the appropriate response to international cybercrime will create an international community willing to consider the developing convention. In doing so, the environment will be better suited to determining whether or not the international system can leverage international law to investigate and prosecute cybercrime. Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 18 References Association for Progressive Communications (APC). (2019). Open Letter to UN General Assembly: Proposed international convention on cybercrime poses a threat to human rights online. Retrieved from https://www.apc.org/sites/default/files/Open_letter_re_UNGA_cybercrime_resolution_0.pdf Brenner, S. (2012). Cybercrime and the Law: Challenges, Issues, and Outcomes. Northeastern University Press. Retrieved from https://ebookcentral.proquest.com/lib/norwich/reader.action?docID=1085118&ppg=124 Buergenthal, T. (2006). The Evolving International Human Rights System. The American Journal of International Law, 100(4), 783-807. Retrieved from https://www-jstor-org.library.norwich.edu/stable/pdf/4126317.pdf?refreqid=excelsior%3Ae4ea9f31648cbd83f8f97bc7dae8e67a Cangemi, D. (2004). Procedural Law Provisions of the Council of Europe Convention on Cybercrime. International Review of Law Computers & Technology, 18(2), 165-171. Retrieved from https://norwich.on.worldcat.org/oclc/5272830680 Center for Strategic & International Studies & McAfee. (2018). Economic Impact of Cybercrime – No Slowing Down. Retrieved from https://www.csis.org/analysis/economic-impact-cybercrime Council of Europe. (2004). Convention on Cybercrime. Retrieved from https://www.coe.int/en/web/conventions/full-list/-/conventions/treaty/185 Hakmeh, J. & Peters, A. (2020). A New UN Cybercrime Treaty? The Way Forward for Supporters of an Open, Free, and Secure Internet. Council on Foreign Relations. Retrieved from https://www.cfr.org/blog/new-un-cybercrime-treaty-way-forward-supporters-open-free-and-secure-internet Kanuck, S. (2010). Sovereign Discourse on Cyber Conflict Under International Law. Texas Law Review, 88, 1571-1597. Retrieved from https://www.law.upenn.edu/institutes/cerl/conferences/cyberwar/papers/reading/Kanuck.pdf Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 19 Liang, B., & Lu, H. (2010). Internet Development, Censorship, and Cyber Crimes in China. Journal of Contemporary Criminal Justice, 26(1), 103–120. Retrieved from https://norwich.on.worldcat.org/oclc/5322181473 McCarthy, D. (2011). Open Networks and the Open Door: American Foreign Policy and the Narration of the Internet. Foreign Policy Analysis, 7(1), 89-111. Ministry of Foreign Affairs of the Russian Federation. (2019, December). Press Release on the UN General Assembly Vote on the Russian Draft Resolution on Countering Cybercrime. Retrieved from https://www.mid.ru/en/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/content/id/3988579 Murphy, S. (2018). Principles of international law (3rd edition). West Academic Publishing. Nocetti, J. (2015). Contest and Conquest: Russia and Global Internet Governance. International Affairs, 91(1), 111-130. Retrieved from https://norwich.on.worldcat.org/oclc/5721220595 Pocar, F. (2004). New Challenges for International Rules Against Cyber-Crime. European Journal on Criminal Policy and Research, 10(1), 27-37. Retrieved from https://norwich.on.worldcat.org/oclc/5649374698 Powers, S. & Jablonski, M. (2015). The Real Cyber War: The Political Economy of Internet Freedom. University of Illinois Press. Retrieved from https://norwich.on.worldcat.org/oclc/903245891 Shackelford, S. J. (2013). Managing Cyber Attacks in International Law, Business, and Relations: In Search of Cyber Peace: Vol. Revised Edition. Cambridge University Press. Retrieved from https://norwich.on.worldcat.org/oclc/882104883 Shackelford, S. (2019). Should Cybersecurity Be a Human Right? Exploring the "Shared Responsibility" of Cyber Peace. Stanford Journal of International Law, 55(2), 155–184. Retrieved from https://norwich.on.worldcat.org/oclc/8185136062 United Nations General Assembly. (1945). Charter of the United Nations. Retrieved from https://www.un.org/en/charter-united-nations/index.html United Nations General Assembly. (2019). Countering the use of information and communications technologies for criminal purposes. Retrieved from https://www.undocs.org/A/74/401 United Nations Third Committee. (2019, November). Meetings Coverage Seventy-Fourth Session, 49th & 50th Meetings. Retrieved from https://www.un.org/press/en/2019/gashc4284.doc.htm United States Mission to the United Nations. (2019, November). Statement on Agenda Item 107 'Countering the use of information and communications technologies for criminal purposes.' Retrieved from https://usun.usmission.gov/statement-on-agenda-item-107-countering-the-use-of-information-and-communications-technologies-for-criminal-purposes/ Running head: INTERNATIONAL LAW & THE CYBER DOMAIN 20 Zekos, G. (2008). Electronic State Sovereignty. The Icfai University Journal of Cyber Law, 7(4), 30-60.
The control of the executive in the creation of the Rule of law in Africa will have been in the center of all the doctrinal debates since the decade 1990. The omnipotence of the executive on the other powers in Africa, sapping the existence of the balance of power (executive, legislative, legal) caused all kinds of speculations. Thus by 1990 the emphasis was placed on the mechanisms of limitation of the powers of the executive. This question of the separation and the balance of power whose paternity returns to John Locke but equipped with his current resonance by Montesquieu remains today a question not yet solved in Africa in order to allow an effective realization of the Rule of law. This study has the aim of clarifying the obstacles which would have to be raised, sociological causes contributing to such consequences as well as the ways and means having to lead to the limitation of the powers of the executive, leaving the way to the natural conditions of safeguarding of individual freedoms for the implementation of the Rule of law in Africa. Force is to note that many progress were realized since 1990, in particular with the édiction of new constitutional texts and a will displayed of the ones (political powers) and others (civil society and defense associations of the human rights) to set up democratic regimes. However, since the fall of the Berlin Wall, this hope of the promising following days seems to give way to pessimism. It is thus advisable to determine the reasons of this decline while focussing on indices likely to flower the hope of the better following days. It is in this straight line that the object of our project of thesis is registered. ; Le contrôle de l'exécutif dans la création de l'État de droit en Afrique aura été au centre de tous les débats doctrinaux depuis la décennie 1990. L'omnipotence de l'exécutif sur les autres pouvoirs en Afrique, sapant l'existence de l'équilibre des pouvoirs (exécutif, législatif, judiciaire) a donné lieu à toutes sortes de spéculations. C'est ainsi que dés ...
The control of the executive in the creation of the Rule of law in Africa will have been in the center of all the doctrinal debates since the decade 1990. The omnipotence of the executive on the other powers in Africa, sapping the existence of the balance of power (executive, legislative, legal) caused all kinds of speculations. Thus by 1990 the emphasis was placed on the mechanisms of limitation of the powers of the executive. This question of the separation and the balance of power whose paternity returns to John Locke but equipped with his current resonance by Montesquieu remains today a question not yet solved in Africa in order to allow an effective realization of the Rule of law. This study has the aim of clarifying the obstacles which would have to be raised, sociological causes contributing to such consequences as well as the ways and means having to lead to the limitation of the powers of the executive, leaving the way to the natural conditions of safeguarding of individual freedoms for the implementation of the Rule of law in Africa. Force is to note that many progress were realized since 1990, in particular with the édiction of new constitutional texts and a will displayed of the ones (political powers) and others (civil society and defense associations of the human rights) to set up democratic regimes. However, since the fall of the Berlin Wall, this hope of the promising following days seems to give way to pessimism. It is thus advisable to determine the reasons of this decline while focussing on indices likely to flower the hope of the better following days. It is in this straight line that the object of our project of thesis is registered. ; Le contrôle de l'exécutif dans la création de l'État de droit en Afrique aura été au centre de tous les débats doctrinaux depuis la décennie 1990. L'omnipotence de l'exécutif sur les autres pouvoirs en Afrique, sapant l'existence de l'équilibre des pouvoirs (exécutif, législatif, judiciaire) a donné lieu à toutes sortes de spéculations. C'est ainsi que dés ...
The formalism in testamentary law is a result of the need to protect the freedom of testamentary disposition and the authenticity of the last will of the testator. Proposed formalities are supposed to serve multiple purposes in testamentary law: evidentiary, cautionary and protective. Having in mind the level of modern society development and technologies, as well as the new challenges we face with today (such as pandemics, natural disasters, etc.), the question arises: whether the prescribed formalities in testamentary disposition are justified in terms of purposes they are suposed to serve? Modern testamentary law is characterized by the trend of liberalization of testamentary forms, mitigation of formalities, abolition of certain obsolete forms of testament, but also introduction of new forms dictated by new social and economic, political circumstances and new requirements of legal trade mortis causa. The experience with the Covid pandemic confirmed the importance of these issues. The state of the pandemic indisputably restricts the freedom of testation in several directions: limited contacts prevent the presence of notaries or judges as representatives of public authorities as a mandatory element of form in public testamentary forms, and the possibility of their composition; it is impossible or difficult to ensure the presence of testamentary witnesses in allographic testament and thus difficult to implement the principle of unitu actu as a key feature of the testamentary form; finally, illiterate people and people with disabilities remain deprived of the opportunity to exercise their constitutionally guaranteed freedom of testing due to being unable to make an holographic legacy, as their sole option available within the extraordinary circumstances of a pandemic, due to above mentioned restrictions. As the basic purpose of the testamentary right is to enable a testamentarily capable person to manifest his last will in whatever circumstances he finds himself, extraordinary circumstances during a pandemic ...
Цель статьи анализ социально-исторических предпосылок формирования юридического мировоззрения как комплексной системы чувств, ценностей и рациональных представлений об обществе, основанных на определяющей роли права и законности в социальной жизни. Задачи работы выявление основных факторов появления юридического мировоззрения в Новое время, определение значения юридического мировоззрения для последующего социального развития. В статье использован сравнительно-исторический метод, позволивший сопоставить традиционное и модерное общество, феодальное и буржуазное право. Применение социокультурного подхода способствовало выявлению факторов формирования юридического мировоззрения, в числе которых объединяющее значение права, возрастание его роли, антифеодальные настроения, гражданское общество, идеи о естественном праве. Автор делает вывод о том, что появление юридического мировоззрения освободило человека от пиетета перед религией и политической властью феодального типа, схоластикой и догматическими авторитетами, предложив ему новую систему ценностей, основанную на разуме и равенстве. Именно оно сформировало уважение человека к правам и свободам, доверие к демократическим институтам, законопослушность, обостренное чувство социальной справедливости. Разработка юридического мировоззрения внесла вклад в развитие правовой мысли, представлений о правовых и конституционных основах государственной политики. В итоге современная юриспруденция стала развитой системой хорошо изученных норм, отраслей, институтов, востребованной во всех сферах общественной жизни. Результаты статьи могут найти применение в образовательной деятельности при разработке курсов по истории права и философскими проблемам мировоззрения. ; The purpose of the article is to analyze socio-historical conditions of formation of the legal Weltanschauung as a complex system of feelings, values and rational ideas about society, based on the determining role of law and legislation in social life. Objectives of the paper are to identify the main factors of the legal Weltanschauung appearance in modern times, and to define the role of the legal Weltanschauung for future social development. The comparative-historical method is used, which allowed to compare the traditional and the modern society, the feudal and bourgeois right. The use of socio-cultural approach helped the author to identify factors of the development of the legal Weltanschauung, such as uniting role of the low, increase of its role, anti-feudal sentiments, civil society, and the idea of natural law. The author concludes that the legal Weltanschauung has freed man from reverence to religion and political power of the feudal type, scholastic and dogmatic authorities offered him a new set of values based on reason and equality. It has shaped the respect to human rights and freedom, trust to democratic institutions, law-abidance, and sense of social justice. Development of the legal Weltanschauung has contributed to the development of legal thought, understanding of the legal and constitutional foundations of state policy. The result was the development of modern law system of well-studied standards, sectors, institutions, needed in all spheres of public life. The results can be used in educational activities in the development of courses on the history of law and the philosophical problems of Weltanschauung.
Статья посвящена анализу состояния и роли основных субъектов предстоящей российской модернизации, их взаимоотношениям между собой, а также структур и процессов, блокирующих переход нашей страны на путь цивилизованного развития. Проведенный критический разбор наличных социальных и политических практик, позволил автору выдвинуть ряд обоснованных, хотя и дискуссионных предложений, обеспечивающих названный переходIn this paper the author analyzes the state and the role of the major agents of Russia's eventual modernization, their inter-relationships as well as structures and processes, which prevent Russia from following the path of civilized development. Many agree that Russia's current underdevelopment with respect to developed countries creates a demand for its accelerated modernization, i.e. transition to a competitive, knowledge-driven and highly technological economy. Such strategic maneuver has become extremely necessary due to an obvious failure of the previous modernization project, i.e. 'westernization' that led to a criminalized privatization, and thus an emergence of an enormously unequal caste-like society. In spite of rather favourable initial conditions (an abundance of natural resources, high intellectual potential and the relatively low cost of labour) everything collapsed. According to many leading experts the scales of the country's economic downturn have been greater than those of the USA during its Great Depression. Its current economic growth already causes a lot of problems and lacks stability, since it is intensified purely through an inflow of petrodollars and foreign loans. This calls for a substantial change in the key spheres of public life, where the role of efficient state cannot be underestimated. The efficient state relies primarily on its people's trust, whose interests, rights and freedoms it carries out and secures. Does this apply to Russia's current authorities? The analysis of the data from a number of all-national surveys shows that Russian people more or less explicitly regard the Russian state as a protector and a mouthpiece of the rich, the administrating and business class, whose interests are not only interrelated but usually tightly soldered together through a corruption contract. The Russian state is regarded as a 'socially oriented state' only in 16% of cases, while only 21% of respondents see it as a 'democratic' state. However, it should be outlined that the people clearly distinguish between the supreme power: the president, the prime minister and their appointed officials, whom they trust, and the rest of power structures, whom they usually distrust. Neither the legislative bodies, nor the executive power are legitimate in Russia's public opinion. Moreover, precisely such identification of the latter with governmental bodies leads to a negative perception of power and its rejection as a whole. Thus there has once again formed an opposition between 'us' (common people) and 'them' the ruling class of the state bureaucracy and business, which has already been the cause of social cataclysms in the past. What lies at the core of this cleavage, which has to be overcome in order to make modernization possible? This article addresses the issue of the no. 1 enemy in any democratic state and any positive change in society namely corruption. The existence of a strong lobby of higher bureaucrats and large businessmen has led to the adoption of an emasculated version of the anti-corruption law. Precisely, it has been revised to exclude the internationally accepted clause, according to which illegal property is subject to confiscation. The analysis shows that this law, be it a purpose or a misunderstanding, has an absolutely opposite effect and only imitates the struggle against corruption. Unfortunately, the adopted law and the following practice create an impression that authorities (except for supreme power) clearly aim at reducing the scale of the public discussion and making the people conform to it as an inevitable evil, which can be overcome by through occasional disciplinary measures. As a result the problem remains completely unresolved. A thorough analysis of the nature and factors of corruption in Russia and other countries, who, at least, seriously try to solve this problem (China), or have recently fought it (Singapore, Turkmen, Japan) or have solved it long ago (Switzerland, Scandinavian countries, Germany, etc.), show that Russia completely lacks such strategy. Corruption in todays Russia is a multifold phenomenon of total lawlessness: the unbundling and stripping of budgets, bribery, criminal protection and crime suppression, money laundering, the lobbying of business interests via all branches of power, etc. Moreover, after the tragedies of Budenovsk, Dubrovka and Beslan corruption has apparently become one of the major causes for growing terrorism and extremism. Why do then authorities struggle so relentlessly against the consequences i.e. terrorism, and limit themselves to doubtfully efficient measures when fighting against its primary cause? The author is trying to answer this question. A struggle for Russia's new path development will not only be open to the public, the public itself will have to become one of its major actors. This is the motive, which was announced in the President's Address to the Federal Assembly. Unfortunately, since 1993 the vector of Russia's policy has been generally oriented towards a completely different future: the people were about to lose the status of a political actor and become a passive force of the state and societal change. This is not a casual turn, although it is only a declaration of Dmitry Medvedev. It seems to be the result of the previous modernization attempt, which has brought up a cynical, avaricious and consumption-oriented personality. It looks as though the state has finally realized that Russia come to a dead-end with market 'mutants' swarming in its structures, criminal and semi-criminal business. This dead-end can only be overcome through a multifold modernization and meritocratic mobilization of masses. The main obstacle, which prevents them from entering the process of modernization is lawlessness and insecurity that lead to a total irresponsibility. That is why successful modernization would only become possible when people regain trust in themselves as an active force of this process. The first step towards such change is a shift from imitative democracy to an authentic sovereignty of people, the supremacy of their power, which is a direct warranty of the Russian Constitution: i.e. the carrying out of referendums, which address the most vital issues of the country's being, including efficient measures against corruption, which the Russian Parliament has yet failed to develop. The people can provide a substantial support for power in working out clear and long-term goal as well as appropriate means for the fulfillment. The making of a free society for free people is a worthy goal after all. Although it requires a solid social, legal, moral and ethic basis, which would help moderate the people's social an economic instincts, its manners and habits, which were fostered by an inefficient and often anti-social use of private property over the means of production. In other words, a development of civil control over the state and business authorities is desperately needed. The results presented in this paper help distinguishing the core problem which has to be resolved by means of both, society and the state, to enhance the process of modernization: the creating of a new public solidarity between the state and its people, the people and business, since the previous models have already proved their inefficiency. First of all, this concerns the change in the character of power, which has to demonstrate its loyalty to the people rather than currency traders, corrupted officials and the semi-criminal business. Today, as never before, Russia requires a strong state, which would be able to overcome the total corruption, oligarchic and monopolistic structures, which harm its economy and postpone modernization. The critical review of existing social and political practices allows for a number of reasonable, as well as quite disputable suggestions, which could prove useful in stipulating the process of modernization in Russia.
Cover -- Table of contents -- A Dedication to Richard Bonney (1947-2017) -- Acknowledgements -- Introduction -- How Religious Freedom Became a Natural Right: The Case of Post-Reformation England (John Coffey) -- Tolerable and Intolerable Local Practices of Religion during the English Interregnum (Fiona McCall) -- The Political Arithmetic of Transmutation: Heterodoxy and Political Economy in Sir William Petty (1623-1687) (Shannon Stimson) -- Where Liberalism Begins and Toleration Ends: Locke on Atheism and Rawls on the 'Unreasonable' (Alex Tebble) -- Mutual Toleration in the English Churches: Legal Devices to Enforce Perceived Orthodoxy in Denominational Space (Augur Pearce) -- From Toleration to Religious Freedom to Toleration Again? A Historical Reflection on the Swiss Case (Sixteenth to Twenty-First Centuries) (Sarah Scholl) -- Toleration and Religious Otherness in the Early Enlightenment and Contemporary Europe (Kaisa Iso- Herttua) -- Different yet Similar: Croatian Experiences of the Integration of Its Islamic Community into Society (Mirela Krešić) -- Lutheran Legacies and the Politics of Migration: Reformation Resources for a Contemporary Conundrum (Hans Leaman) -- Toleration and Religious Freedom: From Cross-Disciplinary to Cross-Faith and Worldview (E. S. Kempson) -- Notes on Editors -- Notes on Contributors -- Index.
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The processes of world globalization have a significant impact on all spheres of society, in particular on the realization of human rights, which is accompanied by specific collisions and conflict situations at the regional level. In many cases, the limits of the realization of human rights are conditioned by certain socio-cultural characteristics and sustainable traditions that do not correspond to common civilizational values and impede the implementation of international human rights standards in national legal systems. The universal nature of human rights, enshrined in paragraph 5 of the Vienna Declaration and Program on Human Rights Action (1993), provides that all human rights are universal, indivisible, interdependent and interrelated. The international community must treat human rights in a fair and equitable manner, with due regard for globalization processes, with the same approach and focus. The significance of national and regional specificities and different historical, religious and regardless of their political, economic and cultural systems, have obligations to promote and protect all human rights and basic freedoms. This statement expresses the positions that are essential when considering the human rights situation at the regional level. First, recognizing human rights as universal for the international community means their global character. Secondly, regardless of their political, economic and cultural systems, states have a duty to promote and protect all human rights and freedoms. International standards are intended to eliminate the differences in the realization of human rights and freedoms that are manifested at the global and national levels, and to assert their universal character. Adherence to the traditional values of culture and religion cannot be ignored in contemporary context, as sociocultural diversity has a profound effect on the implementation of international human rights standards in different civilizational spaces. Human rights, which are inherent in all countries due to their natural properties, are recognized in international instruments as being not subject to any restrictions and deviations, at the same time they are different at the regional level in used approaches. In practice, thisresults in restrictions and, in some cases, violations that require response from the international community. ; Процеси світової глобалізації відчутно позначаються на усіх сферах життєдіяльності суспільства, зокрема, на реалізації прав людини,що супроводжується на регіональному рівні окремими колізіями. В багатьох випадках межі реалізації прав людини обумовлені певними соціокультурними особливостями та усталеними звичаями, які не відповідають загально цивілізаційнимцінностям та перешкоджають впровадженню міжнародних стандартів прав людини в національні правовісистеми. Універсальний характер прав людини, закріплений у п. 5 Віденської декларації та Програмі дій з прав людини (1993), передбачає, щоусі права людини є універсальними, неподільними, взаємозалежними і взаємопов'язаними. Міжнародне співтовариство повинно ставитися до прав людини, враховуючи процеси глобалізації, на справедливій і рівній основі, з однаковим підходомі увагою. Хоча значення національної і регіональної специфіки і різних історичних, релігійних і культурних цінностей, правових традицій необхідно мати на увазі, в той же час, держави, незалежно від їх політичних, економічних і культурних систем, мають обов'язок заохочувати і захищати усі права людини та основні свободи. У цьому твердженні виражені позиції, що є істотними при розгляді ситуації щодо реалізації прав людини на регіональному рівні. По-перше, визнання прав людини в якості універсальних для міжнародного співтовариства означає їх глобальний характер. І по-друге, незалежно від їх політичних, економічних і культурних систем, держави зобов'язані заохочувати і захищати усіправа і свободи людини. Міжнародні стандарти покликані скасувати відмінності щодо реалізації прав і свобод людини, які проявляються на глобальному і національному рівнях, стверджувати їх універсальний характер.Прихильність до традиційних духовних цінностей не можна ігнорувати в умовах сучасності, оскільки соціокультурна багатоманітністьмає величезний вплив на впровадження міжнародних стандартів прав людини в різні цивілізаційні простори. Права людини, які притаманні усім країнам і народам завдяки своїм природним властивостям, визнані у міжнародних документах як такі, що не підлягають жодним обмеженням і відхиленням, на регіональному рівні відрізняються у своїх підходах. На практиці це призводить до їх обмежень і подекуди порушень, що потребує реагування з боку міжнародної спільноти.
