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Volume 11, Issue 3, December 2021

Contents



Article 1 - Legal instability in cyberspace and OSCE’s mitigation role

Abstract

After the international legal community widely endorsed the application of international law to cyberspace, many open questions remain on the concrete interpretation of existing rights and obligations to the cyber realm. In pursuit of its mandate to promote human rights and conflict prevention, the OSCE can play a major role to support operationalization of international law and application of existing principles to cyberspace. This paper examines some key steps in the aftermath of the creation of norms of behavior, and transparency and confidence-building measures. After a brief analysis of the norm-creation process, this piece identifies several pressing cybersecurity challenges on the international landscape, and offers suggestions for consolidating the voluntary non-binding norms States agreed upon. Using lessons learned from other domains, the analysis will focus on mechanisms of building further stability and transparency in cyberspace, in particular by reference to the due diligence principle and States’ human rights obligations.
Key-words: confidence-building measures, norms of behavior, due diligence, cybersecurity, OSCE.
JEL Classification: K24, K33
DOI: 10.24818/TBJ/2021/11/3.01



Article 2 - Applicability of ePrivacy Directive to national data retention measures following invalidation of the Data Retention Directive

Abstract

The paper analyses rules pertinent for examination of national data retention measures regulating data processing activities of providers of electronic communication services following invalidation of the Data Retention Directive in 2014, on which subject the CJEU issued a total of five judgments up until June 2021. Focus of this analysis is the issue of applicability of EU law as interpreted in the CJEU case law, most specifically Article 15, paragraph 1 of the ePrivacy Directive containing legal safeguards for the restrictions of rights and obligations in that directive on the confidentiality of communications as well as the processing of traffic and location data. Such restrictions are as a rule manifested in different national data retention measures, which may pursue law enforcement and public security, as well as national security objectives. This examination is supported also by analysis of rules on the scope of ePrivacy Directive and its relationship with the general personal data protection framework. Overall findings in the paper provide a frame for further detailed research on the topic of future regulation of retention measures at national/EU level (Proposal for ePrivacy Regulation, possible new EU data retention legislation) and a comparative assessment of relevant CJEU jurisprudence with that of the European Court of Human Rights in respect of compatibility of retention measures with the guarantees of fundamental rights and freedoms and allowed restrictions thereof in the European legal system.
Key-words: data retention; confidentiality of communications; ePrivacy Directive; General Data Protection Regulation; law enforcement; national security.

JEL Classification: K24
DOI: 10.24818/TBJ/2021/11/3.02



Article 3 - Legal problems of the use of orphan works in digital age

Abstract

The aim of this paper is to consider the mechanisms of legalization of use orphan works, based on a comparative analysis of the legal regulation in the United States, the EU and European countries; identify priority ways to reform and to develop proposals for improving copyright law in Ukraine. In the first section the concept of the orphan works and the circumstances which caused emergence of the orphan works are revealed. It has been established that the problem of orphan works mostly concerns works whose authors died and heirs cannot be found. In the second section the models of legalization of orphan works in the United States, Canada, the EU and European countries are analyzed and these interferences formed a proposal for Ukrainian legislation. In the third section the background of development of legislation of orphan works in Ukraine are studied. The neсessity to study the legal regulation of the United States, the EU and European countries in light of the recodification of the Civil law of Ukraine and seeking way of its renovation is substantiated. Developing effective mechanisms of using orphan works are stated to become relevant in the process of digitization of libraries’ collections and to have gained a new momentum in recent years. Its result has been provided open access to the works on the Internet.
Key-words: intellectual property rights; copyright; collective licensing agreement; digitization; European Union; orphan works.
JEL Classification: K15, K24, K49
DOI: 10.24818/TBJ/2021/11/3.03



Article 4 - Modern solidarity and administrative repression

Abstract

Modern society is based on the predominance of organic solidarity over mechanical solidarity and, consequently, on the predominance of the law, which ensures cooperation between autonomous subjects from repressive law, which sanctions, through penalty, any deviation from the standards of the common conscience. Modern society is “civilized”, i.e. it is firstly and foremost based on “civil” law, the repressive law only being exceptional, which translates into three principles: that of the subsidiarity of criminal law, that of the necessity and legality of offences and penalties, and that of the additional protection of individual freedom when the subject is criminally charged. The consequence thereof is that, in modern liberal democracies, all repressive law is criminal, that any charge which may lead to the application of a repressive sanction is a criminal charge and that the law-maker cannot assign to the administration the competence regarding the application of repressive sanctions. Under these circumstances, the transformation of some repressive norms into norms of administrative law is a violation of the fundamental principles that structure the legal order of modern liberal states. Nonetheless, this type of practice is becoming more common. In order to ensure individual freedom, this tendency must be corrected. As politicians are not willing to do so, naturally this is a task for the judicial courts, that can rely for this endeavour on the European Court of Human Rights’ constructive jurisprudence.
Key-words: structure of judicial systems, rule of law, criminal law, administrative repression, administrative authorities, European Court of Human Rights.
JEL Classification: K10.
DOI: 10.24818/TBJ/2021/11/3.04



Article 5 - Territory of state as indivisible whole and the norms of Constitution

Abstract

In the study of the substantive legal grounds for the resolution of territorial disputes, the judicial form is characterized by the priority of the grounds of legal title (agreemental title, uti possidetis) based on international treaties, or legal acts of the state possessing sovereignty over the grounds of actual title (effective occupation and governning of the territory, tacit recognition, prescriptional acquisition). Like the initial occupation, the acquisition of territory on the basis of prescription has a long and effective occupation of territory as a prerequisite. The possession of alien or contested territory without a treaty may be legal and enforceable only when there is an inviolable, uninterrupted and undisputed exercise of possession. Where the disputable territory is in fact administrated by a state other than that which holds title, the International Court of Justice gives preference to the title holder.
Key-words: territory, sovereignty, International Court of Justice, Constitution of the Czech Republic.
JEL Classification:
K33.
DOI: 10.24818/TBJ/2021/11/3.05



Article 6 - Paradise of territoriality lost: rethinking extraterritoriality in administrative law

Abstract

Traditionally, the scholarship of administrative law has paid only very limited attention to the phaenomenon of extraterritoriality. Hereby, the scholarship has reflected the theoretical considerations concerning the sovereignty of the State, which have implied that administrative authorities execute their functions exclusively in the territory of the State. At the same time, the scholarship of international public law has traditionally acknowledged that – as based on a corresponding international agreement – a State may allow the administrative authorities of a foreign State to execute certain functions in its own territory. This article aims to reconcile these two approaches, demonstrating that the phaenomenon of extraterritoriality has emerged to represent an integral part of the system of administrative law in various jurisdictions. This article also argues that this perception of administrative law actually fails to represent any new feature, but is based on traditional concepts existing in the public law of Europe. Thus, extraterritoriality must be considered as a part of the ius publicum europaeum commune.
Key-words:extraterritoriality; territorial paradigm; international administrative law; ius publicum europaeum commune, administrative law beyond the state; comparative public law.
JEL Classification: K23, K32
DOI: 10.24818/TBJ/2021/11/3.06



Article 7 - Local barriers in the efficient use of Green Public Procurement - case of Slovakia

Abstract

Green public procurement is a voluntary tool through which public procurers can contribute to the objectives of environmental policy. The legal framework and public policy of green procurement is covered by the European Union. The main goal is to contribute to the consideration of environmental characteristics in public purchases as well as environmental management and the life-cycle costs of the goods, services and work. However, the objectives of the legal framework and the policy to promote green public procurement are often not achieved due to the barriers posed by economic practice. The aim of the article is to analyze the local barriers in the effective use of green public procurement in Slovakia. The processing of results is based on the annual evaluation reports to the National Action Plan for Green Public Procurement in Slovakia for 2016-2020. Identified local barriers include financial constraints on contracting authorities and a preference for evaluating contracts based on the lowest price criterion, insufficiently built administrative (personal) capacity to implement green public procurement, fear of discrimination in incorporating environmental criteria into tender documents and subsequent sanctions from control bodies. Last but not least, the voluntary application of green public procurement at regional and local level is also included among the barriers in the efficient use of this tool in practice.
Key-words: green public procurement, local barriers, legal framework, Slovakia.
JEL Classification: K23
DOI: 10.24818/TBJ/2021/11/3.07



Article 8 - The human right to security in the implementation of the concept of the "right to health protection"

Abstract

Legal support of human security in the field of health care includes the guarantee, protection and protection of rights and freedoms in the field of health care, which is the main function, as well as the goal and duty of the state. This paper describes certain aspects of the legal regulation of the implementation of the "human right to security in the health sector" and the problems of its enforcement. The research methodology is based on a system of methods of the philosophical, general scientific and special scientific level. The main goal of this scientific article is to define the concept‚principles‚ types and directions of implementation of the “human right to safety” in the concept of “the right to health protection”. The general principles of the implementation of the “human right to security in the health sector” are disclosed. It is emphasized that the legal mechanism for the implementation of the “human right to security in the healthcare sector” is the activity of legal entities, lawmaking and law enforcement agencies, and the existing legal norms governing their activities in the healthcare sector. The investigated human right to safety should be understood as a complex of rights related to the protection of the patient's legitimate interests in the healthcare sector from unlawful encroachments and threats.. The author's understanding of the definition of "patients' right to safety". It is argued that human security in the field of health care belongs to the basic needs of a person - the implementation of this need is determined by the level of development of a country, its economic and cultural components, the level and quality of life of a person living in this country, an effective health care system. It is concluded that the main goal of legal ensuring human security in the healthcare sector is to create the minimum necessary (safe) conditions for the implementation of these rights and obligations when receiving medical services.
Key-words: human right to security, health sector, legal regulation‚ concept of the "right to health protection".
JEL Classification: K14, K24
DOI: DOI: 10.24818/TBJ/2021/11/3.08



 

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