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Mediation Equity Model: Legal Framework for Strengthening Mediation Institutions as an Alternative Dispute Resolution in Indonesia’s Tourism Sector
Full text linkThe relationship between employers and workers in the context of industrial relations in Indonesia’s tourism sector is often vulnerable to disputes. This sector, as one of the pillars of the national economy, faces complex interests between workers who seek to protect their rights and employers who focus on maximizing profits. With the increasing development of the tourism sector post-pandemic, issues such as layoffs and dissatisfaction with working conditions are becoming more prominent. These disputes have become urgent issues, especially considering the tourism sector’s characteristics that are susceptible to economic fluctuations. The dispute resolution process through bipartite negotiations, as regulated in Law Number 2 of 2004, often encounters deadlocks, necessitating the need for tripartite mechanisms such as mediation as a non-litigation dispute resolution option. The characteristics of industrial relations mediation, although designed to seek solutions impartially, face various obstacles in their implementation, including a lack of skilled human resources and financial support. Through an in-depth study of the applicable regulations, existing mediation practices, and the challenges faced, this research proposes concrete steps to improve the effectiveness of mediation in resolving industrial relations disputes in the tourism sector. The results of this study are expected to contribute to the creation of a harmonious and sustainable industrial climate in Indonesia’s tourism sector.
Keywords: Mediation equity model, dispute resolution, workers, employers, tourism sector.
Introduction
The relationship between employers and workers within the framework of industrial relations is one of the relationships prone to disputes.[1] The tourism sector in Indonesia, as one of the economic pillars, is an economic sector with characteristics that make it susceptible to industrial relations disputes between workers and employers. This is due to the complexity of the relationship, which involves differing interests between the two parties. Workers often seek protection of their rights, while employers strive to maximize profits in a competitive and dynamic business context. With the increasing demand for tourism post-pandemic, these disputes are becoming more apparent, especially concerning issues such as termination of employment (TOE) and dissatisfaction with working conditions.[2]
Industrial relations disputes in the tourism sector are becoming an increasingly pressing issue to address, given the sector’s vulnerability to economic fluctuations and job uncertainty. The tourism sector, which encompasses various industries such as hotels, restaurants, and transportation, often faces challenges in maintaining harmonious relations between workers and employers. Worker dissatisfaction with working conditions, wages, and minimal legal protection can trigger disputes that potentially disrupt company operations and harm all parties involved. Along with the development of the business world closely linked to the tourism sector, it is crucial to have an effective and efficient dispute resolution mechanism. With a good dispute resolution mechanism in place, industry players can focus more on improving the quality of their services.[3]
In the context of industrial relations dispute resolution, in every industrial relations dispute, the prevailing laws and regulations mandate that the worker/laborer or the labor union/worker union and the employer must first attempt to resolve the issue through bipartite negotiation, as stipulated in Articles 6 and 7 of Law Number 2 of 2004 concerning the Settlement of Industrial Relations Disputes (UU PPHI)[4]. This process aims to reach a mutually beneficial agreement, where both parties can convey their interests and expectations before moving to the next stages of dispute resolution. However, resolving industrial relations disputes through this bipartite mechanism often reaches a deadlock, where both parties fail to achieve the desired agreement. When bipartite negotiations between the worker and the employer do not reach an agreement, proven by a final report stating that the bipartite negotiation has failed, the parties can then resolve their dispute through tripartite mechanisms such as mediation, conciliation, or arbitration, as regulated in Articles 8 to 54 of the UU PPHI, which can be an option in dispute resolution aimed at providing a fair solution for all parties involved.[5]
Mediation, as one of the dispute resolution methods, is a negotiation that has a unique characteristic because it involves a neutral mediator from a government agency.[6] The resolution of disputes through mediation is carried out by a mediator located in every office of the agency responsible for manpower affairs at the Regency/City level. This mediation process is designed to broker the conflict and seek a joint solution without siding with either party. Although mediation is expected to reduce tension, there are still weaknesses in the institutional arrangement and the implementation of mediation itself. Many obstacles arise in the implementation of mediation, including a lack of skilled human resources and adequate financial support to optimally run the process. Previous research by the author titled “Mediation Equity Model: Legal Framework for Strengthening Mediation Institutions as an Alternative Dispute Resolution in Indonesia’s Tourism Sector”, which took the tourism area of Mandalika, West Nusa Tenggara as its research location, showed that various weaknesses and constraints still exist in the implementation of Industrial Relations Mediation as a choice for resolving disputes between workers and employers in the tourism sector.
There is similar previous research that has been conducted on the topic of industrial relations mediation, which includes: “Paradigmatic Problems of Industrial Relation Dispute Settlement on the Perspective of Pancasila Industrial Relations”, by Aries Harianto[7] - Journal of Law and Legal Reform, Year 2024; “Konsep Penyelesaian Perselisihan Hubungan Industrial Antara Serikat Pekerja Dengan Perusahaan Melalui Combined Process (Med-Arbitrase)” (The Concept of Industrial Relations Dispute Settlement Between Labor Unions and Companies Through a Combined Process (Med-Arbitration), by Rai Mantili - Jurnal Bina Mulia Hukum, Year 2021;[8] “Peran Dinas Tenaga Kerja dalam Proes Mediasi Penyelesaian Permasalahan Hubungan Industrial” (The Role of the Manpower Office in the Mediation Process for Resolving Industrial Relations Issues), by FA Dermawan, B Sarnawa - Media of Law and Sharia, Year 2021[9]; “Reformasi Hukum Dan Hak Asasi Manusia Dalam Penyelesaian Perselisihan Hubungan Industrial” (Legal and Human Rights Reform in the Settlement of Industrial Relations Disputes), by H Arsalan, DS Putri - Jurnal HAM, Year 2020;[10]
The above-mentioned studies generally aim to dissect the resolution of industrial relations disputes, mediation specifically, and the development of mediation as a mechanism for resolving industrial relations disputes. This research offers novelty compared to previous studies because it focuses on the tourism sector, adapting to the dominant characteristics of disputes that occur in this sector. Furthermore, this study also attempts to map the normative weaknesses of mediation regulation, referring to the existing Industrial Relations Dispute Settlement Law (UU PPHI) and related regulations, as well as mapping the empirical constraints of mediation implementation, by conducting field research in Indonesia’s tourism hubs, based on the existing conditions on the ground. This subsequently serves as the basis for formulating a strengthened mediation as an effective and efficient non-litigation option for resolving disputes in the tourism sector in the future.
Although industrial relations mediation in Indonesia has been widely discussed academically, existing studies have mostly focused on the manufacturing, plantation, or general labor sectors. This study specifically examines the effectiveness and institutional challenges of mediation in the tourism industry. This sector is characterized by seasonal workers, informal work arrangements, and vulnerability to economic shocks, which still have limitations. In addition, empirical studies that integrate the normative framework of the Industrial Relations Dispute Resolution Law with the reality on the ground in tourism centers such as Bali, Mandalika, and Lombok are still rare. This indicates a significant research gap, a need to understand the extent to which the current mediation framework functions in resolving disputes in the tourism sector, and to identify the legal and institutional reforms needed to improve its effectiveness.
Therefore, given the lack of effectiveness in the implementation of a norm concerning the effectiveness of industrial relations dispute settlement in the tourism sector, it is necessary to formulate an institutional strengthening of mediation to enhance the effectiveness of industrial relations dispute settlement in the tourism sector. This research includes 3 problem formulations, which are:
What are the characteristics of the Industrial Relations Disputes currently occurring in the Tourism Sector?
Is the current Institutional Arrangement for Industrial Relations Mediation, which refers to the Industrial Relations Dispute Settlement Law (UU PPHI), representative enough to be used as an option for resolving industrial relations disputes in the Tourism Sector?
What is the formulation for Institutional Strengthening of Mediation as an effective Non-Litigation Option for Resolving Industrial Relations Disputes in the Tourism Sector?
Methodology
This research adopts a normative legal study approach, supplemented by field research (empirical) to produce a comprehensive analysis. The normative design focuses on literature review, utilizing the conceptual approach and the statutory approach to identify the normative weaknesses of industrial relations mediation regulations, particularly in Law Number 2 of 2004 concerning the Settlement of Industrial Relations Disputes (UU PPHI) and related implementing regulations. The primary data for this section consists of statutory regulations, supported by secondary data such as legal literature, journals, and court decisions. Meanwhile, the empirical design uses a factual approach through field research aimed at mapping the obstacles and implementation practices of mediation on the ground. Primary empirical data is collected through in-depth interviews.
The location for the field research is focused on Indonesia’s tourism hubs, taking case studies in the Manpower and Transmigration Office of West Nusa Tenggara Province and the Manpower Office of Bali Province, chosen due to the high volume of industrial relations dispute cases in the tourism sector. Primary data collection is conducted through structured interviews with a total of 6 (six) respondents divided into three categories: 2 Industrial Relations Mediators (1 from each Office), 2 Representatives of Trade/Labor Unions (actively handling Termination of Employment and Rights Disputes in the hotel/tourism sector), and 2 Representatives of Employers (HRD/Legal) from tourism companies (5-star hotels) that have undergone the mediation process. This data collection is scheduled to be phased between June and September 2024. The collected data from both approaches will then be analyzed qualitatively, presented in a descriptive-analytical form, with the final goal of formulating a Mediation Institution Reinforcement Model (Mediation Equity Model) as an effective and efficient non-litigation dispute resolution option in the tourism sector.
1.Characteristics of Industrial Relations Disputes in the Tourism Sector
Initially, the relationship between employees and employers was purely civil in nature. However, due to the existence of a superior-subordinate relationship or a power dynamic, it became highly vulnerable to exploitation, regardless of its form. Given this condition, the state needs to be present in resolving the disputes that occur in the employment relationship through the dispute resolution mechanism regulated in the Industrial Relations Dispute Settlement Law (UU PPHI).
The relationship between employees and employers is a power relationship because there is one who holds power (the employer) and one who is subjected to it (the employee). The disparity in industrial society resulting from the unequal relationship between the bourgeoisie and the proletariat leads to industrial conflict. Furthermore, industrial relations are closely tied to the interests of both employees and employers, which consequently creates the potential for disagreements and even disputes between the two parties.[11]
In an industrial relations dispute, there are three main parties involved in the scope of resolution: the employees (labor union), the employer, and the government. Industrial relations disputes can manifest in various forms, which are then categorized into several classifications of disputes within the Industrial Relations Dispute Settlement Law (UU PPHI).
In general, the provision of Article 1 point 1 of the Industrial Relations Dispute Settlement Law (UU PPHI) defines an industrial relations dispute as: Differences of opinion resulting in conflict between the employer or association of employers and the employee/worker or labor union/trade union due to a dispute of rights, dispute of interest, dispute over termination of employment, and a dispute between labor unions/trade unions within the same company.
The types of disputes referred to are regulated in Article 2 of the Industrial Relations Dispute Settlement Law (UU PPHI), which includes, but is not limited to:
Dispute of Rights (Perselisihan Hak): “A dispute arising from the non-fulfillment of rights, resulting from differences in the implementation or interpretation of the provisions of laws and regulations, employment agreements (work contracts), company regulations, or collective labor agreements” (Article 1, point 2).
Dispute of Interest (Perselisihan Kepentingan): “A dispute arising in the employment relationship due to a lack of consensus regarding the creation, and/or amendment of working conditions stipulated in the employment agreement, company regulations, or collective labor agreement” (Article 1, point 3).
Dispute over Termination of Employment (Perselisihan Pemutusan Hubungan Kerja - PHK): “A dispute arising from a lack of consensus regarding the termination of the employment relationship by one of the parties” (Article 1, point 4).
Dispute Between Labor Unions/Trade Unions Within One Company (Perselisihan antar serikat pekerja/serikat buruh dalam satu perusahaan): “A dispute between a labor union/trade union and another labor union/trade union within only one company, due to a lack of consensus concerning membership, the exercise of rights, and trade union obligations” (Article 1, point 5).
In a practical context, referring to the field research conducted, especially in the tourism sector, a phenomenon was also found where industrial relations disputes within the tourism context are dominated by disputes over Termination of Employment and Disputes of Rights. This aligns with the conceptual definition of these two types of disputes, which emphasize the non-fulfillment of rights that should be obtained by the employees as regulated in the laws and regulations and the autonomous rules applicable within the company (Employment Agreements, Company Regulations, Collective Labor Agreements) for disputes of rights. Furthermore, there is a rampant condition of termination of employment based on various disputed reasons/grounds, as well as the fulfillment of severance pay and other economic rights following the termination of employment at the company.
This phenomenon is supported by data indicating that, nationally, based on a survey conducted by the Ministry of Manpower of the Republic of Indonesia in 2020 (during the pandemic period), approximately 88% of companies were impacted, resulting in losses to company operations.[12] The tourism sector, with its characteristic high sensitivity to market changes and crises, serves as a clear example of the high number of Termination of Employment (PHK) and Rights disputes. The survey from the Indonesian Ministry of Manpower in the same year, which indicated 88% of companies were impacted by the pandemic, is directly reflected in this sector. Many hotels, restaurants, and travel agencies were compelled to implement efficiency measures, often resulting in mass layoffs. This situation was also evident in subsequent years, consistently showing a trend where PHK disputes remain the most dominant type of dispute in the tourism sector, followed by Rights disputes, which have an overlapping character.
On the other hand, the general labor condition in Indonesia, referencing data reports from the Ministry of Manpower of the Republic of Indonesia, also shows a similar situation, where there were 7,566 industrial relations dispute cases throughout 2024, dominated by Termination of Employment (PHK) disputes as the most frequently reported type, totaling 5,192 cases.[13]
The phenomenon of the high number of disputes is closely related to the need for effective, efficient, and fair industrial relations dispute resolution mechanisms for the parties involved. These disputes must go through the settlement mechanism regulated in the Industrial Relations Dispute Settlement Law (UU PPHI). Its success, therefore, becomes one of the proving grounds for the dispute resolution mechanism set out in the UU PPHI, particularly at the stage of bipartite negotiation, the tripartite mechanism, or through resolution via the Industrial Relations Court. The high number of Termination of Employment (PHK) disputes, reaching 5,192 cases in 2024, proves that the PHK process does not always run smoothly. Even though companies often claim PHK is carried out for efficiency, workers’ rights, such as severance pay, long service award pay, and compensation for rights, are frequently not fulfilled in accordance with the Labor Law and its derivative regulations. Aside from PHK, Disputes of Rights are also a major problem, with 2,033 cases in 2024. These include disputes related to unpaid overtime wages, allowances, or bonuses not provided as stipulated. In the context of tourism, where working hours are often irregular and dependent on seasons, these kinds of disputes are very common.
On the other hand, it was also found that the number of disputes that were submitted to and resolved by the Industrial Relations Court over the past five (5) years is still considered high. This indirectly indicates that there are still various weaknesses in the current non-litigation mechanisms for resolving industrial relations disputes in Indonesia.
The table above shows data on the number of disputes submitted to (up to the point of decision) the Industrial Relations Court in 2020, reaching 1,231 cases,[14] in 2021, it reached 1,114 cases,[15] and in 2022, it experienced a surge, reaching 1,478 cases.[16] Meanwhile, in 2023, 1,255 cases were recorded as resolved at the Industrial Relations Court.[17] Meanwhile, in 2024, a total of 876 cases were recorded.[18] His situation indicates that resolution through non-litigation channels, including mediation, still harbors various issues that make it difficult to maximize its potential as a preliminary dispute resolution mechanism at the company level.
Based on the description above, and concerning the existing characteristics of industrial relations in Indonesia, the analysis of data and field research indicates that Termination of Employment (PHK) Disputes and Rights Disputes are the two types of disputes that currently dominate industrial relations conflict in Indonesia. A similar condition is observed in the tourism sector, which is also predominantly affected by the same types of disputes. The overlapping nature of these two dispute types, combined with the highly dynamic Indonesian labor environment where the regulatory standing of the parties (employees and employers) remains unequal, implies a potential increase in both the quantity and complexity (quality) of disputes, including those in the tourism sector as a continuously growing part of the business world.
2.Institutional Regulation of Industrial Relations Mediation: The Perspective of the UU PPHI
The Industrial Relations Dispute Settlement Law (UU PPHI), as the formal law for industrial dispute resolution, stipulates that if bipartite negotiation fails, one or both parties must register the dispute with the local agency responsible for manpower/labor affairs, attaching proof that attempts at resolution through bipartite negotiation have been made. After receiving the registration from one or both parties, the local labor agency is obligated to offer the parties the option to agree on a resolution through conciliation or arbitration. If the parties fail to make a choice for resolution through conciliation or arbitration within 7 (seven) working days, the labor agency shall delegate the dispute resolution to a mediator, covering all four types of disputes.
The three stages mentioned above are in accordance with the provisions of Article 6, paragraph (1) of Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution (UU ADR)[19], which stipulates that civil disputes or differences of opinion may be resolved by the parties through alternative dispute resolution based on good faith.[20] In the industrial relations dispute settlement system, these stages are known as the tripartite mechanism, involving a third party outside of the disputing parties. This tripartite resol
Hague Systems on Industrial Designs Protection as an Optimization of IMT-GT ASEAN Economic Cooperation
Full text linkIn the industrial design rights protection regime of IMT-GT ASEAN member countries, there are two instruments as a framework, namely TRIPS and the Hague System. The Hague system is needed to elaborate on the different mechanisms in simplifying the unified design registration process, which simultaneously applies in several member countries. Still, Indonesia, Malaysia, and Thailand have not yet completed ratifying the Hague System into national law and have not revised the legal regulations regarding industrial design in their countries, respectively. In Indonesia, there are still differences in the protection concept between what is regulated in TRIPS and the substance of the Industrial Design Law regarding first to use or first to file, and it still requires domestic registration. This normative legal research concludes the need for harmonization between the rules in treaties as a source of international law and national law, so that the clauses in trade cooperation contracts do not conflict with the laws of the respective countries that have ratified them. Unification through the Hague system also needs to be supported by expanding the scope of provinces implementing the IMT-GT cooperation project, followed by the strategic policies of each country.
Keywords: Industrial design, IPR, Hague, IMT-GT.
Introduction
Indonesia’s commitment to optimizing regional trade cooperation between Indonesia and ASEAN countries has been realized through the formation of the ASEAN IMT-GT (Indonesia - Malaysia - Thailand Growth Triangle) sub-region since 1993 between the leaders of the three countries.[1] Until this year, IMT-GT cooperation projects have been implemented in real terms, including halal industry projects, technology industry cooperation, tourism, and industrial downstream in IMT-GT rubber cities and digital malls in the IMT-GT e-commerce platform.[2]
Indonesia, Malaysia, and Thailand as WIPO member countries which are committed to the development of IPR since the promulgation of TRIPS are of course also obliged to implement the latest developments related to the issue of global scale intellectual property protection including industrial design which now requires ratification of the Hague system since the 1999 Geneva Act. This was also ordered in the ASEAN IPR Action Plan 2016-2025.[3] So it is also an obligation for all WIPO member countries and countries in ASEAN that are committed to the ASEAN IPR Action Plan, including Indonesia, Malaysia, and Thailand, to take steps to accede to the Hague system in their country’s national legal system. Apart from being a form of compliance with the results of international treaties or conventions, this also plays an important role in strengthening regional trade cooperation between the three countries in the ASEAN sub-region.
Malaysia and Thailand have shown their seriousness in complying with the Hague system accession obligations at the Parliamentary level. So far, the Indonesian government itself has planned to accede to the Hague Agreement, although this plan has not yet been realized. The Hague System is an international system for registering industrial designs managed by WIPO, making it easier for WIPO member countries.
The obligation to ratify the Hague Agreement, also known as the Hague Statute or Hague System, should be contained in the revision of the Industrial Design Law and become a priority for the work plan of the Directorate General of Intellectual Property for the future, but to date, no final steps have been taken regarding accession to the Hague System. The Hague System, apart from being beneficial for the industrial sector as registrants, will also be of great benefit to the bureaucracy, especially the Directorate General of IP in terms of minimizing administrative workload, manual data entry, inspection, and issuance of industrial design certificates which were originally the obligation of the Directorate General of IP to change to the obligation of WIPO cq Bureau International. The unification of the Hague system will not only clarify registration fees and standards but also simplify bureaucratic matters.[4]
IPR as a part of economic law was included in the liberalization of free trade agendas.[5] Indonesia, as an active member of WTO and WIPO, should become an active compliance country in ratifying treaties that are closely related to international trade and respect for intellectual property as well as ensuring the implementation of national legal sources resulting from its ratification in accordance with WIPO’s strategic plan and the ASEAN IPR Action Plan.
Considering the importance of ratification of the Hague system in the revision of regulations in the field of industrial design in Indonesia as a member country of IMT-GT ASEAN, this normative legal research will discuss the principle of full compliance in the obligation to ratify the Hague system in Indonesia as a member country of IMT-GT ASEAN and how to unify the Hague system in encouraging the strengthening of IMT-GT ASEAN regional trade cooperation. The normative legal research was conducted by conducting a literature and conceptual study through a statutory approach and a conceptual approach to observe the solution for certain issues.
1. Full Compliance Principle on the Ratification of the Hague System into the Indonesian National Law System
Ratification is the official action of a country to bind itself to an international agreement and statute. It is usually a result of relations developed between countries in an international organizational forum.[6] Ratification by Article 1, point 2 of Law Number 24 of 2000 concerning International Agreements (“UUPI”) is interpreted as a legal act of ratification to bind oneself to an international agreement in the form of ratification, accession, acceptance, and approval.[7]
Indonesia has often ratified international agreements or international statutes in the form of statutory regulations, namely ratification through acts or Presidential Regulations. In the field of IPR itself, Indonesia ratified TRIPs for the first time through Law Number 7 of 1994 concerning the Ratification of the Agreement Establishing the World Trade Organization. Ratification is intended to enact the provisions of the TRIPs Agreement into national law. The differences in the political and legal climate between local and global will influence the enactment of the provisions in TRIPs. Another impact of this ratification is to reduce the number of IPR violations in Indonesia, especially industrial property rights.[8]
The legal consequence of ratification is that it is subject to national law.[9] So in ratifying, Indonesia has directly agreed to the agreement of various member countries, even though the legal and political climate was different. By ratifying an international agreement it shows the political will of Indonesia to be bound and accept the rights and obligations arising from the agreement. Ratification of international agreements in the form of laws was carried out if they involved fundamental matters.[10]
The result of ratification is a general agreement that applies globally among member countries of the WTO as international organizations. On the other hand, there may still be a mismatch between legal politics in Indonesia and the global world.[11] It is important for Indonesia to adjust the legal and political climate in implementing the TRIPs that must not conflict with the juridical, philosophical, and sociological foundations of the Indonesian state.[12]
Indonesia’s participation in membership of international organizations and the ratification of international agreements as a form of implementation of Article 96 of Law Number 13 of 2022 concerning the Second Amendment to Law Number 12 of 2011 concerning the Formation of Legislation. The formation of legislation does not only focus on the material substance but also compliance with formal aspects to create legal products with integrity.[13] Therefore, the principle of absolute compliance (full compliance) is the most urgent principle to be implemented in the Hague statute ratification process. In efforts to ratify the Hague Agreement and adopt it into national regulations, national interests must remain the main focus. The draft of the new Industrial Design Bill must be used as a barometer for the development of Design Policy.
Full compliance in the context of the law of treaties could be translated to the action of observance, application, and interpretation in accordance with or not opposed to the framework of that treaty. However, there is one concession provided in the international legal treaty regime for the contracting parties in performing their duties, namely, reservations. It means “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”.[14] Reservations then may perform as a way to not be bound by the provision of a certain rule of a treaty, and therefore not fully comply with the treaty comprehensively.[15]
Specifically, the full compliance principle emanates from the wording of Article XVI, point 5 of the Marrakesh Agreement.[16] It stated that “[n]o reservations may be made in respect of any provision of this Agreement. Reservations in respect of any of the provisions of the Multilateral Trade Agreements may only be made to the extent provided for in those Agreements [...]”. In essence, reservations cannot be made to the Agreement, including its Annexes, unless provided otherwise.
Annex 1C covers the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement).[17] Concerning industrial designs, it requires contracting states to protect designs that are new or original, but not to protect designs that are different merely by technical or functional means.[18] National laws of the contracting state, whether industrial design law or copyright law, shall provide requirements for obtaining design protection.[19] The legitimate interests of third parties may be taken into account in establishing limited exceptions without prejudice to the legitimate interests of the owner of the protected design.[20] The legitimate interests of the owners of the protected design shall remain primary. Commercial purpose usage of the protected design by third parties might be restricted as the owner “have the right to prevent third parties not having the owner’s consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design” and the protection shall cover at least ten years.[21] To the TRIPs Agreement, there shall not be any reservations made without the consent of other contracting states.[22] The legal relationship between contracting states, in terms of whether any industrial designs may have legal protection in their respective jurisdictions, then, relies on consent. By acting in accordance with the said framework, contracting states may be regarded as satisfying the first dimension of the full compliance principle.
Another dimension that may demonstrate whether contracting states are performing full compliance can be seen in the principles used in their domestic laws. Law Number 31 of 2000 concerning Industrial Design firmly takes a position in the ‘first to file’ principle. It means that designs need to be formally registered before they can be protected.[23] While it is not expressly stated, the TRIPs Agreement does not require industrial designs to be registered first to grant protection. In other words, it gives off the impression that the ‘first to use’ approach is taken considerably.[24] Although Indonesia has ratified the TRIPs Agreement,[25] the full compliance principle is not enforced. The Hague System co-exists alongside the TRIPs Agreement to provide a robust framework for the protection of industrial designs. While the TRIPs Agreement imposes obligations on contracting states to provide baseline protection, the Hague System lays out efficient, practical mechanisms for owners to secure their design internationally.
An examination of the legal relationship between the Hague System and the Indonesian law system concerning industrial designs needs to be done carefully. Meanwhile, Indonesia has not yet ratified the Hague System; it is understood that full compliance has not been adhered to. There might be hints of the implementation of the Hague System in the Indonesian legal system, nevertheless.[26] The most prominent contrast point is on Article 3, which mandates that industrial designs must be registered to receive legal protection in Indonesia.[27] This aligns with the need for formal registration, although the Hague System allows for international registration of designs through a single-uniform application.[28] The latter can streamline the process for multiple jurisdictions. Therefore, harmonization between international agreements and national law is required to perform full compliance with the Hague System.
2. Industrial Design Unification in Encouraging International Trade Cooperation in the IMT-GT ASEAN Sub-Region
The Hague Agreement or the Hague Statute from the 1961 Hague Agreement and Geneva Act 1999 was a system that allows design owners to centrally register their designs with a number of countries and/or inter-state organizations.[29] This method provides convenience because it only passes through one door, one language, and one currency and is cost-efficient because the industrial design right holder does not need to apply for registration of his design in several other destination countries separately.[30] Aiming to develop industrial design products that are more varied and have the same clear standards. This classification was prepared through a periodic revision process according to current developments by WIPO, as the center for carrying out the administration of the Hague Agreement at the international level.[31]
The Indonesian government has now prepared a draft Presidential Regulation concerning Ratification of the Statute of the Hague Conference on Private International Law, which has been submitted by the President to the Indonesian House of Representatives for discussion since 6 August 2024. Indonesia itself has become a member of the HCCH, an intergovernmental organization that focuses on the unification of international private law with a total of 90 member countries, including Malaysia, the Philippines, Vietnam, Singapore, and Thailand from ASEAN. HCCH membership is also useful in resolving cross-border trade disputes and obtaining technical guidance to facilitate accession, thereby providing stronger legal certainty in encouraging increased confidence from investors and international trade partners.[32]
Indonesia, Malaysia, and Thailand themselves as members of the HCCH have also become members of the ASEAN sub-region as IMT-GT, which was officially ratified in 1993 by Indonesian President Soeharto, Malaysian Minister Tun Dr. Mahathir Mochammad, and Thai Prime Minister Chuan Leekpai. IMT-GT has strengthened the connectivity of the ASEAN sub-region in economic growth, including the green economy trend.[33] The green economy in recent years prioritized regional economic development to reduce disparities and increase the competitiveness and welfare of society in the territory of the 3 countries as the ASEAN sub-region. This is proven by the drastic increase in IMT-GT’s gross domestic income from USD 20 billion in 1993 to USD 405.7 billion in 2021.
This IMT-GT collaboration continues to be fostered and improved to achieve the 2025 ASEAN connectivity master plan so that digital transformation and creative economic development in line with green economy issues and SDGs can run optimally, especially as IMT-GT has declared a vision to become an integrated, innovative region. Inclusive, green, and sustainable in 2036. For this reason, the launch of the Joint Business Council (JBC) program was launched, which aims to open up opportunities for direct trade and investment cooperation with a business-to-business concept between Indonesia, Malaysia, and Thailand. Various collaborative projects, ranging from the creative economy sector, including tourism, telecommunications, digitalization, special economic zones, and renewable energy, to Human Resources (HR) development, for example, include the Kuala Tanjung Industrial Estate project.
The creative economy as a trade sector is closely related to IPR and cannot be separated from the other.[34] IPR is the basis of rights for creative economy business actors, while the creative economy itself is a forum for the development of innovation and the utilization of the moral and economic rights of IPR holders regarding these innovations, both copyright and industrial property rights. Industrial property rights were involved in international transactions with various manners of transferring rights.[35] Industrial property rights include rights to inventions and designs in the form of patents, brands, geographical indications, trade secrets, industrial designs, and integrated circuit layouts, as well as protection of plant varieties.
Industrial designs as a form of industrial property rights have an equally important role as brands and patents as objects in international trade. International mark registration has been made easier since the Madrid Protocol was ratified through Presidential Regulation Number 92 of 2017 concerning Ratification of the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, as well as international scale patent registration through the application of the Patent Cooperation Treaty (PCT) mechanism. It has been adopted in the regulation of the unification of the international industrial design registration system with the ratification of the Hague statute, more popularly known as the Hague System.
The Hague System makes it easy for companies to extend the protection of their intellectual property across multiple countries.[36] It allows them to utilize and protect their industrial designs in the global marketplace. Once the Hague system is truly realized, it will be an attraction for designers to want to register the industrial designs they have created. The Hague system provides more freedom regarding the period of protection that will be obtained by the designer. As an illustration, in the Industrial Design Law currently implemented in Indonesia, the protection is only 10 years, but in the Hague system, the protection is 15-20 years, and the protection period can be extended so that it does not immediately become public domain. Thailand itself has planned to extend the protection period to 15 - 20 years in the accession process, which is still ongoing. The formal requirements and material requirements between Indonesia, Malaysia, and Thailand are similar. The conditions that must be met before applying for design registration consist of formal requirements and material requirements. Formal requirements are in the form of an obligation to provide a written statement including identity, along with proof of ownership of the design, a replica of the product design, a deed of establishment of the legal entity, a power of attorney if necessary, and proof of payment for registration. Material requirements in the form of aspects of novelty, practicality, and applicability are not included in the list of exceptions to obtain industrial design rights, and the creator is a subject who has the right to register the work.
Industrial Design registration in Indonesia is still a very long process. The application is addressed to the Directorate General of Intellectual Property Rights for further formality checks. All applications that have met formal/administrative requirements[37] will be announced no later than 3 (three) months from the date of receipt, so that any third party can submit written objections covering matters of a substantial nature no later than 3 (three) months. Furthermore, to answer the objection, the Industrial Design Applicant can also submit an objection no later than 3 (three) months. In the event of an objection, a substantive examination must be carried out, which takes a maximum of 6 (six) months from the end of the announcement date. If the objection is rejected, the party concerned can submit a lawsuit to the Commercial Court up to cassation. Objections received can be forwarded to the issuance of a certificate. The issuance of a certificate takes a maximum of 30 (thirty) days from the end of the period given for submitting objections. This means that an industrial design certificate can only be obtained after a total duration of approximately 18 months. Not to mention the costs that must be incurred during this relatively long time, so it could encourage businessmen to put aside the urgency of registering industrial design rights.
Bureaucratic problems that do not save time and costs are also experienced by WTO member countries, including ASEAN countries and the IMT-GT within them. WIPO was trying to facilitate the flow of international registration with the idea that an industrial design right does not have to be registered first in the country of origin of the applicant/creator, following the rules of that country of origin and then re-registered when the industrial design right is to be developed in another country. WIPO’s simple step is a single registration for an industrial design right originating from a country, so that it can legally apply not only to the country of origin but also internationally at the same time. This scheme was later calle
ქორწინების პერიოდში შეძენილ ქონებაზე საკუთრების უფლების წარმოშობის სამართლებრივი ასპექტები
No full textThe purpose of the research is to conduct a deep study of the issue related to the origin of individual ownership of spouses over property acquired during the marriage upon the termination of marriage, and to clarify the legal or practical significance of marriage registration, starting a cohabitation, or ending a cohabitation during the registered marriage when dividing property. Specifically, when and under what conditions can property acquired during marriage be considered in co-ownership of spouses according to the Civil Code of Georgia and court practice?. According to the Constitution of Georgia, the right to own and inherit property shall be recognized and guaranteed, and marriage, as a union of a woman and a man for the purpose of founding a family, shall be based on the equality of rights and the free will of spouses. The ongoing number of disputes in courts, related to the research topic, indicates its relevance. At a glance, this issue does not seem problematic, as the relevant norms of the Civil Code of Georgia provide a solution to it. However, through a reasonable interpretation of the norm, the registered marriage does not automatically establish a co-ownership regime over the property. The purpose of this article is to emphasize, through an analysis of judicial best practice, the importance of marriage registration and the role of a household. In certain cases, the existence of a household economy is a decisive factor in deeming property as co-owned. With the development of law, in relation to human rights, the classic exceptions given in a separate norm, by systematic, substantive definition, give a different rule for solving the issue, as the State acknowledges and protects universally recognized human rights and freedoms as eternal and supreme human values. While exercising authority, the people and the State shall be bound by these rights and freedoms as directly applicable law.
Keywords: Registered marriage, family, cohabitation, household, co-ownership, individual ownership.
Introduction
The family is a multifaceted social phenomenon that combines biological and social, economic and moral, ideological and psychological relationships. Although the family has a centuries-long history of development, the importance of the modern family and the need to define the rights and responsibilities of its members from a legal standpoint, in a way that corresponds to contemporary life, remain relevant today.[1]
Article 30 of the Constitution of Georgia provides for the concept of family. Family is a marriage, as a union, of a woman and a man to start a family, based on the legal equality and free will of the spouses.[2] In the modern sense, the family essentially has the same meaning, although it is characterized by many specific features. There is a general sociological and a special legal concept of family. From a sociological perspective, family is a union of persons based on marriage, kinship, and the upbringing of children, conditioned by the factors of living together, common interests, and mutual care. The family relationship represents a complex form of social relations, which reflects not only the multifaceted interests of a defined circle of persons but also the corresponding characteristics of the society and the state of a given era.[3] From a legal perspective, the family is the legal bond of its members. Family relations acquire a legal character through their regulation by legal norms. This is possible by establishing mandatory rules within the limits of the state’s ability to influence the behavior of family members.[4]
With the legislative amendments to the Civil Code of Georgia of September 17, 2024, the concept of marriage was formulated in a new edition. Specifically, marriage is a voluntary union of a woman and a man to create a family, which is registered at the territorial office of the legal entity of public law, the Public Service Development Agency operating under the governance of the Ministry of Justice of Georgia (hereinafter, the territorial office of the Agency). For this article, a woman is a person identified as female based on hereditary genetic characteristics, and a man is a person identified as male based on hereditary genetic characteristics.[5] Other contractual relations may undergo changes, be restricted or expanded, or fully altered by the consent of the parties, but this cannot occur with marriage. As soon as the parties express their consent to marriage, legislative regulation immediately takes effect, creating various obligations for the parties.[6] Marriage is the foundation of the family. It primarily reflects the unity of spiritual, moral, as well as personal and property relations.[7] After the dissolution of a marriage, the issue of dividing property acquired during cohabitation arises. When considering this issue, the court is guided by such criteria as marriage registration, household economy, and the statute of limitations.
Methodology
The research is based on the doctrinal legal method; the relevant norms of the Constitution of Georgia, of the Civil Code of Georgia, and the Civil Procedural Code of Georgia are analysed within the framework of the mentioned method. A case analysis approach has been used to identify interpretations related to marital property relations, especially based on the practice of the Supreme and Constitutional Courts, as well as lower instances.
The legal comparative method is used to analyse the foreign jurisdictions (Turkey, Belgium, the Netherlands, Italy, the USA) and decisions of the European Court of Human Rights to see the place of Georgian regulations in a broader international context.
Based on doctrinal and scientific sources, Georgian and foreign family and property law is discussed in the research. The interpretation of norms is carried out using systematic and teleological approaches to ensure compliance with constitutional principles and human rights standards.
The research is done through the analysis of normative-legal and judicial practice and does not include empirical or sociological research.
1. The Importance of Marriage Registration
Being in a registered marriage is a personal right of an individual. Many couples cohabitate without registration. The law does not create a family; the law creates the structure through which the family is recognized and protected.[8] According to the firmly established practice of the European Court of Human Rights, marriage has gone beyond formal relationships; the existence or non-existence of family life significantly depends on the actual existence of a close personal relationship.[9] In its 1994 decision, the European Court clarified that “the concept of family relationships is not limited only to relationships based on marriage and may include other de facto family ties where the parties live together without marriage”.
In the modern world, interest in family law is mainly determined by the social and economic aspects of the relationships between family members, including the financial consequences following the dissolution of marriage, among others.[10] Theoretically, the significance of marriage registration is limited to the fact that spouses acquire rights and obligations established by law toward each other. Marriage gives rise to mutual personal and property rights and obligations of the spouses.[11] In the United Kingdom, when a marriage is dissolved and the parties cannot agree on the distribution of property, they apply to the court, and the court decides on the distribution of property, including its sale.[12]
Article 1151 of the Civil Code of Georgia links the emergence of spouses’ rights and obligations exclusively to the registration, and concerning the moment of the emergence of spouses’ rights and obligations, any different interpretation of this provision contradicts its normative content.[13] An unregistered marriage does not grant any rights over acquired property.[14],[15] Determining de facto “family life” may have legal significance in other cases, for example, in establishing paternity or in cases concerning relationships between parents and children.[16] Hence, Georgian legislation does not provide for equating the legal consequences of cohabitation with those of marriage.[17]
The Cassation Court explained that Article 1158 of the Civil Code contains the legal regulation of property acquired by spouses during marriage. Practically, the norm determines the ownership of property acquired by spouses within a specific time frame (during marriage). However, the mere registration of marriage is not decisive for extending the legal regime of a registered spouse’s ownership of property, in cases where it has been established that, at the time of acquiring the disputed property, the spouses no longer maintained a common household and the marriage, despite being still registered, was factually terminated. The legislator is guided by the presumption that, as per rule, common property, for Article 1158 of the Civil Code, is created through the spouses’ joint funds, joint management of the household, and joint labor.[18]
The factual termination of marriage may also serve as grounds for deprivation of inheritance rights. Specifically, according to Article 1341 of the Civil Code of Georgia, by a court decision, a spouse may be deprived of the legal right of inheritance if it is confirmed that the marriage with the decedent was factually terminated at least three years before the opening of the estate and the spouses were living separately.[19]
Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms guarantees everyone the right to respect for his or her family life. According to the precedent of the European Court of Human Rights, this provision is subject to broad interpretation and encompasses all aspects of family life that are established in a democratic society and serve the well-being of that society.[20] Among the categories protected by this norm are the inviolability of a person’s family life, every individual’s legitimate possibility to freely choose as a spouse the person with whom they wish to establish family relations, as well as the right to terminate family life.[21] In the case of Şerife Yiğit v. Turkey, the European Court of Human Rights established that the respondent state had not violated Articles 8 and 14 of the European Convention for the applicant. The Grand Chamber of the European Court compared the case with Muñoz Díaz v. Spain and explained that, unlike it, Şerife Yiğit could not have had a legitimate expectation for the recognition of the legal consequences of cohabitation by the state. The Court emphasized the clarity and accessibility of the civil marriage regulatory norms in the Republic of Turkey and confirmed the state’s right to require the registration of civil marriage.[22] The second book of the Turkish Civil Code is dedicated to family law. Articles 134-144 of the third section regulate the procedure for submitting and registering a marriage application. Article 134 of the Turkish Civil Code defines that, man and a woman to marry each other apply together to the marriage registry office in the domicile of one of the parties. The following articles determine the form of application submission, the list of required documents, deadlines, and other procedures related to registration.[23] On this issue, the legislation is so clear that it cannot be interpreted in other way.
2. The Importance of the Essence of Household Economy in Property Division
Similar to the legislative regulation in Belgium,[24] for property acquired during cohabitation to be considered jointly owned, the first and essential prerequisite is the existence of a registered marriage. A marriage certificate is prima facie evidence of the existence of marriage.[25] There are countries where, despite an unregistered marriage, couples still have rights. For example, in the Kingdom of the Netherlands, citizens are given the freedom to choose between civil partnerships and marriage, and a special municipal service establishes and maintains a register for persons in unregistered marriages.[26] As for the American approach, it differs from state to state. In some states, a religious certificate is sufficient for marriage, but in some states do not recognize de facto cohabitation and require registration for the validity of the marriage. Israeli law chooses a religious nature for marriage, and its authority is exercised by the relevant hierarchy. Based on the example of Italy, it can be said that this is a hybrid model where both religious and civil marriages operate. According to the current legislation in Georgia, no lever would legally equate a de facto (unregistered marriage) with a registered marriage.[27]
If there is no registered marriage, then persons in an unregistered domestic cohabitation, as per the general rule, initiate a dispute over ownership of the acquired property[28] under the regulatory norms of unjust enrichment.[29]
Property and marriage are both ancient and almost universal social institutions.[30] Under family law, the property of spouses is divided into two parts: individual (i.e., separate) and common property. Individual property is the property that belongs to one of the spouses and is disposed of exclusively by them. This rule is regulated by Articles 1161 and 1162 of the Civil Code. Joint property is considered to be all property (movable and immovable) acquired during the spouses’ cohabitation, which was acquired (or created) through the joint labor and funds of both spouses, as well as property acquired by one of the spouses, even if one of them was engaged in household activities, took care of children, or, for another valid reason, did not have an independent income.[31]
The Supreme Court of Georgia provided an important interpretation in one of the cases.[32] Specifically, the Cassation Court did not uphold the claimant’s (cassator’s) argument and noted that although the disputed immovable property had been purchased by the respondent with money gifted by his father, it could not be considered the respondent’s individual property. The Cassation Court explained that, in determining the ownership form (personal or joint) of an item received as a gift by a spouse during marriage, the donor’s intent is of essential importance. In the present case, the intent of the respondent’s father was directed toward ensuring the well-being of the respondent’s family and serving the family’s common interests. This is confirmed by the fact that the respondent lived in the disputed immovable property together with his spouse and child. The claimant himself confirmed that the location of the disputed house was chosen at the request of the plaintiff, close to the mother’s house (see subparagraph 11.3 of this ruling). Based on all the above, the disputed residential house, which the claimant purchased during marriage with money gifted by his father, was intended for the entire family and, as a gift, lacked the character of individual use.[33]
Each spouse’s personal property includes: a) property that belonged to them before marriage; b) property received as a gift or by inheritance. The spouses’ personal property also includes items of personal use (clothing, footwear, etc.), even if they were acquired during the marriage with the spouses’ common funds, except for jewelry. A spouse’s individual property may be recognized as the spouses’ joint property if it is established that, as a result of expenses incurred during marriage, the value of this property significantly increased (capital repairs, completion of construction, reconstruction, etc.). A similar regulation is also found in Belgian family law.[34]
Property acquired by spouses during marriage refers to all types of property (immovable and movable) acquired (or created) through the joint labor and funds of both spouses during the marriage period. Joint marital property includes salaries and other monetary income, regardless of whose name they are registered under. Marital common property is property jointly acquired by the spouses. Acquisition does not mean merely the payment of money, but also that both spouses expressed their will for the property to become their joint ownership. Hence, when determining whether immovable property should be considered as spouses’ common property, the decisive factor is the acquisition of the property jointly, with common funds, during a registered marriage.[35]
In one of the cases, the court rejected the respondent’s claim and stated that, although the disputed immovable property was purchased by the respondent with money received from selling an agricultural land plot (cadastral code ……, area 2,052 sq. m.), it constitutes the spouses’ common property. By combining the undisputed and determined facts, the court concluded that, on 28 May 2008, the Municipal Council of Khelvachauri recognized the respondent’s ownership of a 2,052 sq. m. agricultural land plot, which was registered in the Public Registry as the respondent’s property on 22 February 2012 and was sold on April 13, 2017, for USD 143,780.
The same decision further elaborates that the disputed apartments purchased on 27 October 2017 cannot be considered the respondent’s personal property. The court explained that, in determining the ownership form of acquired property (personal or common), the purpose of the acquisition is of essential significance. In the case at hand, the respondent’s purchase of the property was aimed at ensuring the family’s well-being and served the family’s common goals, which is confirmed by the fact that the respondent lived in the disputed immovable property with his spouse and child. Before moving in, the apartments were rented out, and the income was used for the family. It was also an undisputed fact that the plaintiff was employed during the marriage, had an income, and raised the child. The respondent’s purpose in purchasing the disputed apartments was directed toward the family. The court could not accept the statement of the respondent’s mother (one of the respondents) that the land, the proceeds from the sale of which were used to purchase the disputed apartments, was ancestral property. The court noted that, at the time of purchasing the disputed apartments, the respondent was in a registered marriage; therefore, the property acquired during that period is considered the spouses’ joint property.[36]
The decisions of the common courts of Georgia confirm how essential a household economy is.
3. Legal Consequences of the Disposal of Property Acquired During Marriage by One Spouse
It happens rarely that the property acquired during marriage is registered in the joint ownership of both spouses. Once problems arise in the personal relationship, the spouse in whose name the property is registered often attempts to hinder the other by formally transferring the property to another person. Judicial practice is also abundant in this regard.
Article 1160.1 of the Civil Code of Georgia requires mutual consent of spouses for the disposal of common marital property, regardless of which spouse disposes of it. Therefore, the disposal of the co-ownership share by the registered owner is relatively voidable, and its validity depends on the consent of the other spouse. However, under the second paragraph of the same article, the interests of the acquirer are protected against claims by a spouse who is not registered as the owner in the Public Registry but has such a right by virtue of property acquisition during a registered marriage. This legislative framework demonstrates that the right of the unregistered spouse to property acquired during marriage is not absolute. In the event of the disposal of spouses’ co-owned property (including the other spouse’s share) by the registered owner, the realization of the unregistered spouse’s proprietary rights depends on specific circumstances, particularly on proving the bad faith of the acquirer. Analysing the provisions of Article 1160.2 and Articles 312.3 and 312.4 of the same Code (“3. If an owner disposes of immovable property or encumbers it with a right, it is inadmissible to require the consent of a co-owner for concluding the transaction (or registering the right), if the co-owner is not registered as such in the Public Registry. In the situation as described in paragraph 3 of this article, in the interests of the acquirer, the transferor shall be deemed the sole owner if registered as such in the Public Registry, except when the acquirer knew that, apart from the transferor, there was another co-owner”), the court reckons that, when disposing of jointly owned property, the dispute raised by a spouse who is not registered as an owner will result in the invalidation of the transaction only if it is proven that the acquirer not only knew about the existence of another co-owner but was also aware that the unregistered spouse objected to the disposal of the property.[37] In all other cases, it is presumed that the registered owner acts in agreement with the spouse, and the acquirer is believed to have acted in good faith regarding the acquisition. It is also noteworthy that, in the competition of interests between a good-faith acquirer and a spouse unregistered as a co-owner, the legislation, based on the formulation of the above-mentioned norms, gives priority to the good-faith acquirer.[38]
The parties enjoy the principle of freedom of contract and have the right, within the scope of the law, to freely conclude contracts and determine their content (Article 319 of the Civil Code of Georgia). A contractual term is not predetermined; parties may agree on any matter. For this, they do not require any special permission o
The Capabilities and Challenges of Artificial Intelligence in the Justice System
Full text linkIn the context of globalization, one of the key pillars for improving the effectiveness of a country’s legal system, ensuring access to justice, and enhancing the quality of legal proceedings lies in innovative and technological advancement. The ongoing global digitization process offers a broad range of services in every field, including the judiciary, enabling improved access to justice for citizens from various social backgrounds through digital transformation. It also allows the integration of artificial intelligence tools into case review and decision-making processes, making the administration of justice faster, more flexible, and efficient. Moreover, the implementation of AI technologies helps create essential tools and mechanisms that, through an integrated approach, contribute to solving global legal challenges—such as prolonged legal proceedings, overburdened judges, limited access to justice, inefficiencies in the legal system, and more.
The primary purpose of artificial intelligence is to simplify administrative processes, increase transparency and efficiency in decision-making, and assist judges, prosecutors, and lawyers in processing documents. AI enables the analysis of legal documents, anonymization of court decisions, and comparison and compliance checks of contracts. These capabilities significantly reduce human error and save time.
This article discusses examples from various countries where AI is applied in both legal research and the modeling of judicial proceedings. It is essential to emphasize that the successful use of this technology depends not only on its technical capabilities but also on the legal and ethical frameworks that protect citizens’ rights.
Keywords: Justice system, AI, ethical challenges, analysis, regulation
Introduction
The process of digitalization in the judicial system accelerated significantly following the global pandemic that began in early 2020. The swift transition to remote (online) court hearings was made possible through the integrated use of justice-oriented digital technologies. This shift posed new challenges for judicial institutions in terms of effectively managing cases, analyzing evidence, ensuring secure digital communication, maintaining data security, and delivering timely justice. The technological environment of artificial intelligence provides courts with the ability to effectively utilize automated resources, adapt them to their workflows and management systems, and thus help formulate a clearer vision and strategy for delivering fast and efficient justice.
In recent years, artificial intelligence has penetrated and fundamentally transformed many spheres of our lives.[1] Becoming a part of our daily routine. It is now used both in the private sector and across public institutions. Digital platforms and tools have become a kind of guarantee for the continuity of activities in all key sectors.[2] Consequently, AI is increasingly being applied in justice systems around the world—offering both opportunities and risks. Recently, critical scholarship has raised questions about the judiciary’s ability to handle the difficulties and limitations inherent in deploying AI systems.[3] This article will specifically examine what kinds of opportunities AI creates within judicial systems where it is already in use, and what risks are associated with its implementation.
The term artificial intelligence was first introduced in 1956 at a seminar held at Stanford University in the United States, which focused on logical rather than computational problems.[4] Artificial intelligence can be defined as “a machine’s ability to act in a way that would be considered intelligent”. This definition belongs to John McCarthy, who is regarded as the creator of the term “artificial intelligence” and introduced it for AI in 1956.[5],[6]
According to the Duden Dictionary, the term “artificial” describes the imitation of a natural process, while “intelligence” is defined as a human capacity for abstract thinking, reasoning, and purposeful action. Based on this definition, artificial intelligence can be understood as an attempt to create a simulation of human cognitive abilities.[7]
Definitions of artificial intelligence also appear in the field of computer science. For example, the definition of AI as “an attempt to teach computers to think”[8] highlights the imitation of human cognitive processes by systems such as machines or computers. This perspective is reflected in the “Turing Test”,[9] developed by British scientist Alan M. Turing, which AI can only pass if it communicates with a human in natural language, acts logically, and adapts to changing circumstances.[10]
The Council of Europe defines artificial intelligence as “a combination of sciences, theories, and technologies whose goal is to reproduce human cognitive abilities through machines. Given the current level of development, artificial intelligence refers to the delegation of complex intellectual tasks, normally performed by humans, to machines”.[11]
According to the definition developed by the European Commission’s High-Level Expert Group on Artificial Intelligence (AI HLEG), “artificial intelligence characterizes systems that, through environmental analysis, demonstrate intelligent behavior and, to a certain degree of autonomy, carry out actions to achieve specific objectives. AI-based systems can exist in a virtual environment as fully software-based (e.g., voice assistants, image analysis software, search engines, voice and facial recognition systems), or AI can be embedded in hardware devices (e.g., advanced robots, autonomous vehicles, drones, and Internet of Things applications)”.[12]
Methodology
In the process of working on this research, I employed both comparative and qualitative analysis, focusing on the study of international practices and the possibilities for integrating artificial intelligence (AI) into Georgia’s justice system. The research analyzed legal approaches and practical examples from various countries, including initiatives from the Council of Europe, the European Union, and individual member states regarding the adoption of AI in judicial systems. I also reviewed findings published in high-ranking academic journals.
The primary sources for data collection included binding international legal documents (e.g., the EU’s draft AI Act), the Council of Europe’s principles on the use of AI in the judiciary (CEPEJ guidelines), academic and expert analyses (including reports by the EU Agency for Fundamental Rights), and studies and public statements from organizations engaged in judicial reform. The analysis of current practices in Georgia was carried out using the Desk Research method, which involved evaluating open sources such as public policy documents, strategies, legislation, judicial reform plans, and the national AI strategy. The following areas were specifically examined: stages of digitalization in the court system, implementation and use of electronic management systems, and existing frameworks for personal data protection.
The methodological approach also included the identification of ethical risks regarding algorithmic transparency, impartiality, and the necessity of human oversight in judicial decision-making.1. Theoretical and Practical Dimensions of AI in Justice Systems
“Artificial intelligence is a complex artificial cybernetic software-hardware system (electronic, including virtual, electromechanical, bio-electromechanical, or hybrid), which possesses a cognitive functional architecture and access, either independently or in relative terms, to the needed high-speed computational power”.[13]
AI systems can also be differentiated based on their performance and domain of application. A common distinction in AI research is that between so-called “strong” and “weak” AI. This distinction is philosophical in nature and hinges on two hypotheses: the weak hypothesis, which claims that a system (e.g., a machine) can behave intelligently, and the strong hypothesis, which posits that such a system may possess intelligence. Analogously, a strong AI system exhibits intelligent behavior because it genuinely thinks, whereas a weak AI system only mimics intelligent behavior[14] [1-4]. A strong AI system would operate at a level equal to or beyond the capacity of the human brain. In contrast, a weak AI system is specialized in solving individual tasks and is intended to support, not replace, human cognitive effort.[15]
It is important to distinguish between artificial intelligence (AI) and machine learning (ML), as ML is merely a subcategory of AI. Using them interchangeably is incorrect. ML is typically closely associated with statistics and data processing, enabling a system to improve through experience. Deep Learning (DL), another subcategory of AI, uses neural networks to process unstructured data.[16]
Examples of AI use:
Navigation services (e.g., Google Maps, Apple Maps);
Mobile applications (e.g., Siri, Alexa, Google Assistant);
Social media platforms (e.g., Facebook, Twitter, Instagram) use AI to tailor content to user interests.[17]
1.1 AI in the justice system: Transforming courts through technology
AI offers a broad spectrum of possibilities for improving various sectors. AI systems are increasingly being used in judicial procedures and courtrooms around the world—from Australia, China, and the United States to the United Kingdom, Estonia, Mexico, and Brazil. These systems are being built, tested, developed, and adapted for use in courts and tribunals globally. AI has the potential to increase procedural efficiency, accuracy, and accessibility of justice.
Court hearings do not require in-person presence, as communication technologies facilitate remote proceedings. Solution Explorer, for example, was used 160,527 times between July 13, 2016, and March 31, 2021. In 2020/2021, the average time to resolve a dispute using this system was 85.8 days, with a median resolution time of 59 days across all case types.[18]
In China, courts use AI to warn judges if their decision deviates from precedent data in a central database.[19]
AI has also demonstrated the ability to predict rulings of the European Court of Human Rights (ECHR). This tool employs natural language processing and machine learning to forecast whether a provision of the European Convention on Human Rights has been violated in a given case. The system bases its predictions on prior decisions and achieves a 79% accuracy rate in matching human judges’ outcomes.[20]
Beyond these applications, AI is used during court proceedings to review and analyze documents for compliance with predefined criteria. For example, document review involves identifying relevant materials in a case, and AI can significantly enhance the speed, accuracy, and efficiency of this process. Another AI tool is contract analysis, which can assist with both general transactions and individual contracts. JPMorgan has used an AI-powered tool named COIN (Contract Intelligence) since June 2017 to interpret commercial loan agreements. A task that would typically require 360,000 lawyer hours can now be completed in seconds.[21]
The Higher Regional Court of Stuttgart uses an AI tool named OLGA (Assistant of the Higher Regional Court). OLGA analyzes lower court decisions, grounds for appeal, and previously set judicial parameters. It functions as an intelligent research assistant with access to judicial rules, but it does not make decisions itself.
In Bavaria, a new system will soon be tested to automate the anonymization of decisions — a task currently performed manually, and which requires significant time and human resources. Anonymization extends beyond obvious identifiers such as names and addresses to include any data that might indirectly identify an individual.[22]
In the United Kingdom, the Money Claim Online (MCOL) portal has been in use since 2002 to manage claims under £100,000 without needing to enter a courtroom or hire legal representation. A separate portal, Civil Money Claims, launched in 2018, allows claims under £10,000. For 80% of surveyed users, the portal was found to be easy to use. The system first determines whether a case qualifies for the MCOL or Civil Money Claims path. If eligible, and if automatically generated documents are uploaded, the claim can be submitted for mediation or court. If the respondent agrees to pay, the claimant enters the terms of a judgment for court approval. The portal can also be used to issue enforcement orders if payment is not made.[23]
Taken together, these examples show that AI has remarkable capabilities in the justice system. It can accelerate dispute resolution, improve document processing, and increase both efficiency and access to justice.
1.2 Ethical challenges and data protection concerns in AI development
It is worth noting that artificial intelligence offers considerable potential and benefits, but at the same time, it is accompanied by significant ethical challenges, particularly the following:
In some cases, artificial intelligence exhibits bias and discrimination, which may result in unjust outcomes. For example, in 2019, it was revealed that Apple Pay offered different credit limits for men and women. Women were granted lower credit limits and were made more vulnerable due to the algorithm Apple used. A case of algorithmic racism was also reported with Google Photos, where photos of Black individuals were just labeled “Black”.[24]
Articles 7 (prohibition of discrimination) and 12 (right to privacy) of the Universal Declaration of Human Rights, along with Articles 2, 3, and 17 of the International Covenant on Civil and Political Rights, are binding on all signatory states when it comes to the use of artificial intelligence. Guidelines highlight the necessity of algorithmic transparency and openness in decision-making processes. AI-generated decisions must be predictable and require human oversight. Transparency of databases and public accessibility to the basis of their processing are essential for the development of AI in an environment regulated by ethical, moral, and legal mechanisms.[25]
One of the key challenges also lies in the protection of personal data and privacy. Massive surveillance and data collection were observed in Amazon’s “Rekognition” project, which was designed for real-time human identification but faced issues concerning privacy and surveillance.[26]
Privacy and data protection are closely related but distinct rights. Privacy is a fundamental right recognized, in some form, by nearly every country in its constitutions or legal frameworks. Additionally, privacy is recognized as a general human right, unlike data protection. The right to privacy and private life is enshrined in Article 12 of the Universal Declaration of Human Rights, Article 8 of the European Convention on Human Rights, and Article 7 of the EU Charter of Fundamental Rights.
Data protection refers to safeguarding any information related to an identified or identifiable natural person—this includes names, birthdates, photographs, video recordings, email addresses, and phone numbers. The concept of data protection has its roots in the right to privacy, and both are important instruments for the defense of fundamental rights. Data protection serves the specific purpose of ensuring that personal data are processed (collected, used, stored) in good faith by both the public and private sectors[27] [14-17].
One example of data insecurity is the case of Cambridge Analytica, a data analytics company that unlawfully used Facebook users’ personal information during the 2016 U.S. presidential campaign. According to records, the company obtained and analyzed the data of 50 million users, which were then used to craft personalized political advertisements.
For data processing to be lawful, merely having a legal basis is not sufficient. The processing of data must comply with specific principles:
Fairness and lawfulness: The processing of personal data must be conducted fairly and legally. This means that data must be collected and handled in a way that does not violate the rights and dignity of the person to whom the data belong.
Clear purpose: Data must be collected only for specific and legitimate purposes. Further use of the data for other purposes must be prohibited.
Proportionality and adequacy: Only the amount of data necessary to achieve the intended purpose should be collected. The data must be sufficient and relevant for the purpose of processing, but not excessive.
Truthfulness and accuracy: Data must be true and accurate. When necessary, data must be updated, their reliability checked, and incorrect or inaccurate information corrected.
Storage limitation: Personal data should only be retained for the time necessary to achieve the stated purpose. Once the purpose has been fulfilled, the data must either be deleted or stored in a form that no longer allows identification of the individual.
Another major challenge of artificial intelligence is the issue of accountability: who should be responsible for harm caused by the actions of AI—the manufacturer, the user, or the AI itself? Legally, this is a complex question. Responsibility is generally based on wrongful conduct that causes harm. Since the manufacturer is closest to the decision-making around AI development, they are typically held responsible for defects. However, there are exceptions, such as in cases involving medical harm or damage caused by autonomous vehicles. In cases involving medical harm, it is important to investigate whether the physician, who relied on AI for diagnostics, exercised the necessary level of care. In instances of damage caused by autonomous vehicle operation, liability generally falls on the driver, since they are the one who activates and uses the self-driving function. The driver is considered legally responsible for the vehicle even if they are not physically steering it.[28]
This section presents the challenges that, according to current data, may be associated with artificial intelligence. Alongside these challenges, AI also offers possibilities and potential to solve repetitive, labor-intensive tasks more quickly and efficiently. This, in turn, frees up human resources to focus on more complex and creative tasks. AI also has the capacity to play an important role in disease diagnosis and to be used in environmental protection. However, to eliminate the challenges mentioned above, it is essential that the development of artificial intelligence takes ethics into account.
Building trustworthy AI: Legal frameworks and human rights considerations
Integrating ethical principles into the development of artificial intelligence is crucial to ensuring that AI tools have a positive impact on society. For users and affected individuals, AI systems are often neither understandable nor transparent in terms of how decisions or outcomes are reached. Among other concerns, the decisions must be understandable for AI systems to be perceived as trustworthy and legally compliant. Additionally, effective safeguards must be in place to protect against discrimination, manipulation, or other harmful applications.[29]
Considering the circumstances mentioned above, a foundation has been established for ethical standards governing the use of artificial intelligence. According to these standards, the use of AI must always be based on fundamental human rights, which are legally binding under EU treaties and the EU Charter of Fundamental Rights. Above all, these include respect for human dignity, personal freedom, democracy, the rule of law, equality, non-discrimination, and solidarity.
In June 2018, the High-Level Expert Group (HLEG), established by the European Commission, published its ethical guidelines on trustworthy artificial intelligence. The goal of these guidelines is to promote trustworthy AI, which should be characterized by three components throughout its entire lifecycle:[30]
It must be lawful and, therefore, comply with all applicable laws and regulations.
It must be ethical and, therefore, respect ethical values and principles.
It must be robust, both from a technical and social perspective.
In this way, the HLEG provides recommendations for supporting and ensuring ethical and robust artificial intelligence, and it promotes the integration of AI systems into socio-technical environments. The 52-member expert group believes that the use of artificial intelligence has the potential to profoundly transform society: “Artificial intelligence is not an end in itself, but a promising means to enhance human flourishing and, by extension, individual and societal well-being, as well as to promote progress and innovation”.
Based on the European Union’s guiding principles, the Organization for Economic Co-operation and Development (OECD), an international body composed of 36 member states, primarily from Europe and North America, also developed its own set of AI principles. The OECD aims to promote innovative and trustworthy AI that respects human rights and democratic values. The group of AI experts formulated five key recommendations:[31]
Artificial intelligence should be beneficial to people and the planet by supporting inclusive growth, sustainable development, and the improvement of quality of life.
AI systems should be designed in a way that respects the rule of law, human rights, democratic values, and diversity. They must also ensure appropriate safeguards, such as human intervention where necessary, with the aim of promoting a fair and just society.
AI systems must ensure transparency and responsible disclosure so that individuals can understand and question outcomes produced by AI. AI systems should function securely and reliably throug
Maritime Piracy: A Maritime Crime with an International Dimension
Full text linkMaritime piracy is recognized as an international crime, constituting a phenomenon that has posed a continual threat to the security and stability of the international community, undermining both freedom of navigation and the safety of international trade.
Piracy increased markedly in the late twentieth century, becoming prominent in many regions around the globe. Because this crime does not target any one State in particular but endangers the security and integrity of the international community as a whole, pirates have been regarded as enemies of humanity, and their criminal acts are treated as directed against the international community.
The gravity of this offence has compelled the international community to adopt the necessary measures and procedures to prevent, combat, and mitigate it, given its impact on global security and safety. In particular, the repercussions of piracy in the Gulf of Aden and off the coast of Somalia generated a broad international consensus on the need to put an end to this problem and to pool collective efforts in addressing it. A variety of methods and strategies have since been employed by States and international organizations to confront maritime piracy.
The United Nations Security Council (UNSC), in numerous resolutions, has voiced profound concern over the rise in pirate attacks against vessels off Somalia’s shores, which have come to represent a genuine threat to ships’ safety and to navigation in that region. This concern has led to the provision of assistance to States that face challenges in dealing with this crime.
Keywords: Sea pirate, seas, international efforts, crime, maritime piracy.
Introduction
The worldwide threat of piracy has existed since ancient times, and it disrupts personal safety and international commerce, which leads to political and security problems for nations. The crime received international recognition during the late twentieth century as media and communication technologies advanced rapidly. Maritime peace and security face an escalating danger that threatens the fundamental bases that support worldwide trade operations across oceanic routes. The international community faces a threat from pirates who attack all ships because they do not discriminate against specific countries, which makes them hostes humani generis—enemies of all humanity—who harm the entire global population. Under international customary law, states can seize pirate vessels on the high seas or in maritime areas outside state jurisdiction, while various international treaties also criminalize this offense. The crime receives criminalization through international customary law because it allows states to seize pirate vessels operating beyond state jurisdictional boundaries on the high seas and in unclaimed maritime territories.
Accordingly, the central question arises: What is the specific nature of maritime piracy?
Methodology
The research employs a doctrinal legal analysis complemented by comparative and case-based methods. The doctrinal approach examines the evolution of the international legal framework on maritime piracy, from the 1958 Geneva Convention on the High Seas to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and subsequent instruments.
To reinforce the theoretical framework with empirical evidence, the study incorporates data and official reports from leading international institutions — including the International Maritime Organization (IMO, 2024), the International Maritime Bureau (IMB, n.d.), and the United Nations Office on Drugs and Crime (UNODC, 2020; 2021; 2023). These sources, such as the IMO’s Global Integrated Shipping Information System (GISIS) and UNODC’s Global Maritime Crime Programme and Pirates of the Niger Delta reports, provide verified statistical data and analytical insights on piracy trends, enforcement outcomes, and regional security initiatives.In addition, the methodological framework is enriched by recent Scopus-indexed academic research applying quantitative and theoretical approaches to maritime piracy. Spatial and temporal models of piracy hotspots are considered (Tsioufis et al., 2024), along with theoretical interpretations of cyclical piracy dynamics (Frederick Boamah, 2023) and socio-economic perspectives highlighting the vulnerability of fishers and coastal communities (Amali Kartika Karawita, 2019).
This combined doctrinal–empirical–analytical design ensures both normative depth and data-based reliability. Accordingly, the study is structured around two main sections: the conceptual framework of maritime piracy (Section One) and the international efforts to combat this crime (Section Two).
To address this issue, we have decided to explore the conceptual framework of maritime piracy (Section One) and the international efforts to combat this crime (Section Two).
Section I: The Conceptual Framework of Maritime Piracy
Maritime piracy is considered one of the oldest issues that threatens the security and safety of maritime navigation, and it has undergone significant development. Therefore, a specific concept has been assigned to this crime (First Requirement). Additionally, this crime can only occur when its elements are present (Second Requirement).
A) The Concept of Maritime Piracy
Several definitions of maritime piracy have been proposed, including general definitions (Section One) and legal definitions (Section Two), along with an examination of certain regions where maritime piracy is most prevalent (Section Three).
1. The General Definition of Maritime Piracy
Maritime piracy is defined as a maritime crime that involves the robbery and plundering of ships, their crew, or the goods they carry. Many researchers have defined maritime piracy as the commission of one or more acts of violence against individuals and property in maritime facilities.
Maritime piracy is defined as theft committed at sea or sometimes on the shore by an agent not paid by any state or government. Some consider piracy to encompass all acts of violence committed against persons or property without legal justification on the high seas. Others define it as an armed assault carried out by a ship on the high seas, without authorization from any state, to obtain material gains through the seizure of ships, cargo, or persons.[1]
2. The Legal Definition of Maritime Piracy
The 1958 Geneva Convention on the High Seas was the first official framework for international law on maritime piracy. According to Article 15, the Convention defines piracy as having the following parts:
Any act of violence, illegal detention, or depredation perpetrated for personal gain by the crew or passengers of a private vessel or aircraft, aimed at:
Another ship or plane on the open sea, or people or property on board such a ship or plane;
Against another ship, plane, person, or thing in a place that is not under the control of any state;
Any voluntary involvement in the operation of a vessel or aircraft with awareness of its participation in piracy;
Any action that intentionally incites or helps someone commit the acts described in paragraphs (1) and (2).[2]
Similarly, Article 101 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) defines piracy as any of the following acts:
Any unlawful act of violence, incarceration, or theft committed by passengers or crew members of a private aircraft or ship for their own benefit and directed:
On the open sea, against another ship or plane, or against people or property on board;
Against another ship, plane, person, or piece of property in a place that no state has control over;
Any voluntary involvement in the operation of a ship or plane while knowing that it is engaged in piracy;
Any act that incites the commission of one of the actions described in subparagraphs (a) or (b), or that intentionally facilitates their commission.[3]
It is clear from this article that the location of the offense is a defining element: piracy must occur either on the high seas or in areas beyond the jurisdiction of any state. This principle effectively places the duty of prosecution on all states, in accordance with the principle of universality. Conversely, anti-piracy measures within territorial waters fall under the exclusive jurisdiction of the coastal state; otherwise, such action would constitute unlawful interference with state sovereignty.[4]
It should also be noted that the definition of piracy in Article 101 of UNCLOS is restricted to unlawful acts committed in international waters. Acts of armed robbery at sea that occur within territorial waters are excluded, since international law does not permit the pursuit of pirates into the territorial jurisdiction of a sovereign state. In such cases, the coastal state itself bears sole responsibility for safeguarding its coasts and maritime domain. Moreover, the definition requires the involvement of at least two vessels: one being the victim, and the other serving as the platform from which the pirates launch their attack.[5]
While the 1982 UNCLOS did not substantially innovate upon the definition found in the 1958 Geneva Convention, a slight evolution is discernible. For the first time, it introduced the notion of “private ends” as the motivation behind acts of piracy (Article 101(a)). However, this terminology remains vague and open to multiple interpretations, as “private ends” may be construed flexibly depending on the interpreter’s perspective. It would arguably have been more precise for the drafters to specify that such ends are intended to achieve material gain or profit.[6]
The International Maritime Organization (IMO) oversaw the signing of the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) in Rome. UNCLOS received partial criticism, which led to this convention being established as a response. According to Article 3(1) of the SUA Convention, the definition of unlawful acts extends beyond piracy and includes:
Any person who unlawfully and intentionally commits an offense through the following actions:
Seizes or exercises control over a ship by force, threat of force, or intimidation;
A person who performs violent acts against ship personnel will face prosecution when the act threatens ship navigation safety;
Someone who damages or destroys a ship or its cargo in a way that could make it dangerous to navigate;
A person who puts or causes to be put on a ship a device or substance that could destroy or damage the ship and make safe navigation impossible;
A person who seriously damages maritime navigational facilities or seriously interferes with their operation in a way that endangers safe navigation;
A person who provides false information that creates a danger to safe navigation;
A person who harms or takes the life of someone while committing the mentioned offenses;
The SUA Convention provides the necessary legal framework to cover the gaps that UNCLOS leaves regarding territorial application, even though piracy remains unmentioned in its text. The SUA Convention surpasses UNCLOS by protecting unlawful acts which take place in territorial waters, together with archipelagic waters and internal waters as specified in Article 4.
This framework was further reinforced by the 2005 Protocol to the SUA Convention, which expanded the definition of unlawful acts by adding new provisions under Articles 3 bis, 3 ter, and 3 quater. These amendments incorporated additional offenses, thereby enhancing the comprehensiveness of the legal regime governing maritime security.
The 1988 Rome Convention, along with its 2005 Protocol, establishes a complete legal framework that protects maritime vessels from all potential forms of attack. The definition establishes boundaries that define both the goals and methods of these activities, thus making it applicable to a wider range of activities. The law protects all attacks against ships, which include those carried out by crew members and passengers against their own vessel. The 1958 Geneva Convention, together with the 1982 UNCLOS, failed to address this issue, which resulted in unclear interpretations of their rules.[7]
3. Manifestations of Maritime Piracy in Selected Regions: The Somali Coast, the Gulf of Guinea, and Southeast Asia as Case Studies
The Somali coastline stretches about 3,700 kilometers, and it overlooks vital international sea routes that connect the Indian Ocean and Arabian Sea to the Red Sea. The organized groups and gangs have proved their ability to control the area successfully. The groups maintain their own intelligence operations, which produce sophisticated maritime piracy activities through their combination of training and weaponry, and operational readiness. The group operates through shallow coastal waters where they use captured vessels as bases to conduct their operations while maintaining multiple armed support ships that carry weapons and fuel, and other necessary supplies. The target vessel detection leads them to send out fast boats, which carry armed personnel who use rifles and occasionally rocket-propelled grenades. The attackers use rope ladders to board their targets while they disguise their vessels as fishing boats to trick their victims and prevent early detection.
These groups use advanced communication equipment, which enables them to gather complete vessel intelligence before they start their attacks. Their operations are not random; rather, they carefully assess the type of ship, its cargo, and prevailing wind conditions. The experts who work in maritime fields say they spend no more than fifteen minutes to take control of the ship they want to capture. The main objective of these criminals involves demanding high ransom payments from victims who want to free their hijacked ships.
The maritime piracy activities that take place in Somali waters, as well as the Red Sea, create major security threats to nations because this waterway operates as a vital shipping route for international trade. The Red Sea creates an important shipping connection between seas and open waters while linking various continents together. The waterway serves as an essential shipping path for oil tankers, which move crude oil from the Arabian Gulf and Iran to international customers, and as a key trade route between Europe and Asia. The region has become dangerous for ships to sail because pirate vessels have increased their numbers and their aggressive behavior. Piracy operations have developed into an important business for various local communities, who now depend on them for their survival. The financial benefits from this activity exceed the dangers that exist when operating at sea. The modern form of piracy has developed into a profitable business enterprise.[8]
The spread of maritime piracy along the Somali coast can be attributed to two main categories of causes:
3.1 Internal causes
The problem of maritime piracy in Somalia emerged around 1991, coinciding with the outbreak of civil war. The central government lost control to insurgent groups, which caused wide instability to spread across the area. The region of Somaliland established independence through separatist forces, but international bodies refused to acknowledge this new political situation. The situation caused Somalia to transform into a nation that experienced deterioration and widespread insecurity, and lawlessness throughout its entire territory.[9]
The arrival of foreign ships into Somali waters became a major factor because local people viewed these vessels as foreign invaders who took advantage of their maritime territory. The Somali coast faced mounting pressure from foreign fleets that used modern trawling equipment to rapidly exhaust the abundant marine resources of the area. The Somali coastal area became a dumping ground for toxic waste because foreign ships started to dispose of their waste materials in this region. The local fishermen suffered a total loss of their daily fishing activities. The people of the region used basic tools to fight against foreign control, but their efforts led to harsh responses from the invaders. The fishermen reacted to foreign ships destroying their equipment by taking matters into their own hands because international organizations failed to protect them from illegal fishing activities.
3.2 External causes
There are several external factors that contributed, whether directly or indirectly, to the rise and spread of maritime piracy in Somalia. The most significant of these external causes was the American intervention in Somalia under the auspices of the United Nations in 1992. A massive force of 28,150 soldiers, in addition to 2,300 troops from 23 other countries, was deployed to disarm the militias. However, the outcome was the opposite of what many Somalis had hoped for. The confrontations resulted in casualties on both sides and caused extensive human and material losses. Moreover, these events left a profound psychological impact on Somalis, who perceived the intervention as an invasion that must be resisted. Consequently, many resorted to attacking ships on the high seas, which they regarded as a form of national defense.
It can therefore be said that acts of maritime piracy off the Somali coast have had a negative impact on the economies of the states bordering the region, on international trade in general, and on trade within the Arab and African regions in particular. These acts have increased the costs of international commerce due to the rise in commodity and product prices, driven by the additional expenses required for protecting large cargo vessels and by the higher insurance premiums imposed on ships and their cargoes by insurance companies. In addition, the states to which hijacked vessels belong, as well as the shipping companies that own them, are forced to bear the costs of paying ransoms demanded by pirates in exchange for the release of ships and their cargoes, especially oil tankers. Furthermore, victims themselves suffer substantial damages and losses.
To avoid the risk of exposure to maritime piracy in regions where such attacks are widespread, many ships and vessels have altered their routes, diverting instead to the Cape of Good Hope. This rerouting has resulted in increased costs, greater burdens, and longer travel times for voyages to reach their destinations.[10]
The Gulf of Guinea serves as a vital link between regional nations and international markets through its seaport trade operations for importing and exporting goods and services to major worldwide markets. The Gulf region holds substantial natural resources through its extensive marine life deposits and forest products, particularly fish and timber. The lack of strong national regulations for extraction and export makes the Gulf’s resources highly susceptible to various forms of exploitation.
The maritime insecurity in this region remains high because pirates continuously conduct attacks, which use innovative techniques to kidnap seafarers. The accumulation of maritime crimes has made it essential to implement a unified strategy for securing the region’s seas.
South China Sea piracy has existed since the 16th century through the 19th century. British naval forces, along with other state navies, effectively reduced pirate operations that took place on the South China Sea coastal areas. The end of colonial rule brought piracy back into existence. Most coastal nations inherited insufficient military forces, along with economic and political instability. Multiple scholars have demonstrated that the return of piracy emerges from widespread poverty, together with social inequality, alongside corrupt practices and nepotism, which postcolonial governments failed to address through proper governance and economic growth strategies.
Between 1983 and 2007, about 63% of all reported maritime piracy incidents took place in the Gulf of Guinea. The Gulf of Guinea remains under international scrutiny as a piracy-prone area, even though piracy rates decreased significantly in 2021 because recorded attacks happened every four to five days throughout 2016.[11]
It can therefore be argued that piracy has become a widespread phenomenon in the Gulf of Guinea since 2003–2004, making it undoubtedly the most dangerous region today. The Gulf, surrounded by mangrove forests and difficult-to-penetrate inland waters, is of strategic importance, as it holds the seventh-largest oil reserves in the world and the ninth-largest reserves of natural gas. It supplies the United States with 15% of its oil imports. While maritime traffic is not as dense as in the Strait of Malacca or the Bab el-Mandeb Strait, the Gulf is home to extensive industrial activity, particularly oil extraction, which requires reliable and predictable supply operations (supply vessels). The platforms are located about 20 nautical miles offshore, placing them either within territorial waters or in international waters. The Port Harcourt area, at the mouth of the Bonny River, is the most affected, as the city serves as a major hub for supplies, equipment, and the movement of personnel between offshore platforms and the mainland.[12]
According to the report prepared by the Secretariat of the United Nations Security Council on the main developments, trends, and considerations regarding piracy and armed robbery in the Gulf of Guinea, these activities have evolved in both nature and frequency.
In June 2021, the Global Maritime Crime Programme of the United Nations Office on Drugs and Crime (UNODC) traced the origins of piracy and armed robbery in the Gulf of Guinea to around 2005, when armed groups in Nigeria’s Niger Delta began attacking oil and gas infrastructure. At that time, incidents classified as “break-ins and thefts” accounted f
The Compromise Nature of Property Rights in Action – Tolerating Neighboring Nuisances?
Full text linkThis article explores the evolving conception of property rights as individual entitlements and socially embedded institutions, emphasizing neighbor law and the duty of tolerance. While civil-law traditions traditionally conceptualize ownership as an exclusive and absolute right, modern legal systems increasingly recognize that property must serve a social function and coexist with the rights and interests of others. Using the Georgian legal framework (Article 175 of the Civil Code), the paper examines how legal norms mediate conflicts between neighboring property owners, particularly where environmental degradation or industrial activity undermines the peaceful enjoyment or economic use of property. The article emphasizes the role of regulatory mechanisms, such as environmental and construction standards, and highlights the judiciary’s critical function in determining the permissible scope of interference on a case-by-case basis. Drawing upon the jurisprudence of the European Court of Human Rights, it analyzes how the Court balances individual property rights under Article 1 of Protocol No. 1 with broader concerns addressed under Article 8 of the European Convention on Human Rights. By integrating national legal norms with international human rights standards, the article aims to delineate a coherent framework for resolving property-related conflicts in a manner that respects both private autonomy and the public interest.
Key words: Property rights, environmental disturbance, tolerating neighboring nuisance.
Introduction
As a foundational element of a free and democratic society, property rights underpin individual liberty and enable personal development.[1] Far from being merely an economic asset, property provides a sphere of autonomy, continuity, and control in which individuals exercise self-determination, assume responsibility, and fully participate in social and economic life.[2] In civil-law traditions, ownership is traditionally conceived as an exclusive, absolute right:[3] the owner may use, enjoy, and dispose of the property at will, excluding others from interference and enforcing protection through remedies such as rei vindicatio and actio negatoria.[4]
However, property—though often portrayed as the archetype of individual autonomy—is neither a purely private nor an isolated institution. It is inherently linked to spatial context and embedded within a broader social milieu. As such, it serves as a medium through which individuals exert influence over their environment while remaining subject to regulations and constraints.[5] This duality underscores that ownership entails not only control over resources but also responsibilities shaped by both legal norms and social expectations. Accordingly, the idea that property carries a social function has gained widespread recognition: the right to exclude is not absolute, and the use of property must not unduly infringe upon the rights of others or undermine the public interest.[6]
It is precisely this need to balance private and public interests that gives rise to the state’s positive obligation in safeguarding property rights. Under constitutional frameworks, including that of Georgia, the right to property is protected not only from unlawful state interference (a negative obligation)[7] but also through the establishment of a legal and regulatory environment that ensures one owner’s use does not disproportionately infringe upon others’ rights or the public good.[8]
Neighborhood law exemplifies how legal systems balance competing private interests. The Civil Code of Georgia establishes a general obligation of mutual respect among neighbors, requiring property owners to exercise their rights in ways that recognize and accommodate the rights of others.[9] Article 175 specifically recognizes that certain impacts—such as noise, emissions, or vibrations—must be tolerated within reasonable limits.[10] This duty of tolerance reflects the inherently social nature of property rights and the necessity of coexistence in densely inhabited spaces.[11]
In some cases, the impact arising from adjacent landmay significantly degrade environmental conditions to the point where a property becomes uninhabitable or unusable for economic purposes. Such adverse effects—whether from industrial activity, construction, or other externalities—underscore the importance of a legal framework that balances economic development with the protection of individual property rights.[12] While economic or industrial development may serve the public interest, it should not unfairly harm neighboring property owners. Clear environmental and construction regulations must limit noise, emissions, and other disturbances to protect both the environment and peaceful enjoyment. However, legislation alone cannot fully address the complexities of real-world urban conflicts.[13] Thus, beyond codified rules, courts play a crucial role in defining the scope of acceptable impact. Through case-by-case adjudication, they interpret general legal norms, ensuring proportionality and fairness. This judicial oversight prevents both economic development and environmental protection from becoming absolute, promoting a balanced coexistence of private rights and public interests.
The European Court of Human Rights (ECtHR) has developed a nuanced framework for resolving conflicts where environmental nuisances—often stemming from economic, industrial, or public interests—interfere with the rights of neighboring property owners. While Article 1 of Protocol No. 1 (A1P1)[14] protects the peaceful enjoyment of possessions, such cases are frequently examined under Article 8 of the European Convention on Human Rights (ECHR),[15] which safeguards private and family life, home, and correspondence. This dual approach reflects the Court’s recognition that environmental harms implicate both property rights and broader human rights.
For Georgia, as a Contracting State, alignment with Strasbourg jurisprudence is essential. Judicial oversight ensures proportionality in balancing individual property rights against evolving social, economic, and environmental needs. This article analyzes ECtHR case law to elucidate the legal principles underpinning the reconciliation of these competing interests in property law.
1. Property Rights and Environmental Challenges: Controversies under the ECHR
Article 1 of Protocol No. 1 to the European Convention on Human Rights guarantees the right to property. In Marckx v. Belgium, the European Court of Human Rights clarified that the provision, by referring to the “peaceful enjoyment of possessions” and the “use of property”, substantively secures property rights. This protection extends beyond formal ownership to encompass the ability to use, manage, and dispose of property, underscoring its essential role in individual autonomy and legal certainty (§ 63).[16]
The ECtHR adopts a broad interpretation of “possessions” under A1P1, covering both tangible and intangible assets, including property and claims based on legitimate expectations. This protection extends beyond domestic legal classifications to include rights in rem and in personam, as well as movable and immovable property. Even interests not formally recognized under national law may qualify as “possessions” under the Convention.[17]
A property right may be protected as a “possession” under A1P1 even if it is revocable or contested under domestic law, at least until the revocation takes effect.[18] The ECtHR also safeguards legitimate expectations, including de facto possession and contractual claims. In Beyeler v. Italy, the Court upheld a proprietary interest despite a void contract, emphasizing long-term possession, official recognition, and compensation, reflecting its pragmatic approach to both formal and practical property rights (§§ 104–105).[19] A1P1 sets out three rules: (1) a general principle of peaceful enjoyment of possessions, (2) conditions for lawful deprivation of possessions, and (3) the state’s right to control property use in the public interest.[20] When interference doesn’t fit the second or third rule, the first rule applies (the so-called catch-all formula).[21]
Interestingly, according to ECtHR’s established case law, interferences with property rights arising from environmental degradation or neighboring nuisances—such as noise, odors, vibrations, or pollution—are generally assessed under Article 8 of the ECHR, which protects private and family life, rather than under Article 1 of Protocol No. 1. (A1P1). The Court has clarified that A1P1 does not guarantee enjoyment of possessions in a pleasant or pollution-free environment. In Flamenbaum and Others v. France concerning airport expansion, the Court reaffirmed that such issues fall more appropriately within the scope of Article 8 (§184).[22]
In cases such as Udovičić v. Croatia[23] and Surugiu v. Romania,[24] where the Court identified a breach of Article 8 due to nighttime noise from a bar or authorities’ failure to respond effectively to persistent neighborhood disturbances, it found no need to separately assess a potential violation of Article 1 of Protocol No. 1.[25]
Nevertheless, the ECtHR recognizes that severe environmental degradation can violate Article 1 of Protocol No. 1 when it significantly impairs a property’s value, usability, or control, or imposes an excessive burden on the owner. In Öneryıldız v. Turkey,[26] the Court found violations of Articles 2, 13, and A1P1 after a methane explosion at a state-run rubbish tip in Ümraniye, Istanbul, killed nine of the applicant’s relatives and destroyed his home. The dump, operated by the Istanbul City Council, lacked safety measures despite warnings about methane risks. The authorities failed to act, neglecting preventive measures like gas-extraction systems or resident warnings.
Despite the applicant’s home being built without authorization on Treasury land, the ECtHR rejected the government’s claim that it wasn’t a protected “possession”. The Court emphasized that even informal property may fall within the ambit of A1P1 when there is a sufficient degree of recognized occupancy and stability, especially where the State has tolerated the presence of such settlements and facilitated their integration. The destruction of the home, combined with the State’s negligence, breached the right to peaceful enjoyment of possessions, highlighting how environmental harm and government inaction can violate property rights when the State fails to balance private and public interests.
In Öneryıldız v. Turkey, Judges Tümen and Mularoni dissented, arguing that A1P1 did not apply because the applicant’s illegally built dwelling on Treasury land was not a protected “possession”. They highlighted the absence of a legitimate property right or enforceable claim and maintained that state tolerance cannot create a proprietary interest. They cautioned that recognizing such claims could undermine town-planning laws, encourage illegal construction, and obstruct regulatory enforcement.
This case illustrates the ECtHR’s broad and pragmatic interpretation of “possessions”, extending protection to both tangible and intangible interests, including those not formally recognized under domestic law. While environmental nuisances are typically examined under Article 8 of the Convention, the Court acknowledged that, in exceptional cases where environmental harm severely impairs property use or value, A1P1 may also be engaged, particularly if the State fails to strike a fair balance between individual rights and public interests.
2. Article 8 of the ECHR and Environmental Nuisances
Article 8 of the ECHR guarantees the right to respect for private and family life, home, and correspondence, forming a key basis for addressing environmental nuisances that impair the enjoyment of one’s home. The European Court of Human Rights has repeatedly found that serious harms—such as noise, pollution, and toxic emissions—may violate this right, particularly where states fail to prevent or mitigate the disturbance.[27] This chapter examines the Court’s approach to environmental nuisances under Article 8, focusing on how it balances individual rights with public interests and the implications for protecting property in cases of environmental degradation.
2.1. Noise disturbance and the right to enjoy one’s home
Under the ECHR, the right to respect for one’s home extends beyond the mere physical space to include the ability to enjoy it peacefully. This right imposes positive obligations on public authorities to take appropriate measures, including the enforcement of court decisions, to safeguard individuals from interference. Such interferences may be physical, such as unauthorized entry, or non-physical, including excessive noise, odors, or other environmental nuisances. When these disturbances—whether caused by private individuals, commercial activities, or public bodies—go beyond the level of ordinary neighborly inconvenience, they may violate the right to quiet enjoyment of the home.[28] However, an issue under Article 8 only arises if individuals are directly and seriously affected by the nuisance in question and are able to prove the direct impact on their quality of life.[29]
In Moreno Gómez v. Spain,[30] the ECtHR established that persistent noise pollution can violate Article 8 of the ECHR, which protects the right to respect for private and family life and home. Ms. Pilar Moreno Gómez, a Valencia resident since 1970, suffered chronic sleep disturbances and health issues due to excessive night-time noise from bars and discotheques authorized by the City Council since 1974. Despite reports confirming noise levels exceeded legal limits and the area’s designation as an “acoustically saturated zone” in 1997, the authorities continued issuing licenses, including one for a discotheque in her building, later annulled. Ms. Moreno Gómez’s claim against the City Council, alleging violations of her rights to physical integrity and home under the Spanish Constitution, was dismissed by domestic courts for lack of direct evidence linking the noise to her harm.
The ECtHR ruled that Spain’s failure to enforce noise regulations breached its positive obligations under Article 8 to ensure a peaceful home environment. The Court rejected the demand for direct evidence of noise inside her apartment as overly formalistic,given the authorities’ acknowledgment of excessive noise levels through municipal reports and the “acoustically saturated zone” designation.[31] This inaction, persisting over years, impaired Ms. Moreno Gómez’s well-being, leading to an award of €3,884 in non-pecuniary damages for mental anguish. The judgment set a landmark precedent, affirming that severe noise pollution, as an environmental nuisance, engages Article 8 when states fail to act. It underscored the state’s duty to enforce environmental regulations diligently, ensuring Convention rights are practical and effective, and established a standard for addressing noise disturbances across Contracting States.[32]
Similar findings were reached by the European Court of Human Rights (ECtHR) approximately a decade later in the case of Udovičić v. Croatia.[33] In this case, the applicant, Ms. Udovičić, lodged a complaint against the Croatian authorities for their prolonged failure to address excessive noise and other disturbances originating from a bar located beneath her flat in Cubinec, Croatia—a property she had co-owned and inhabited since 1991. The disturbances began in August 2002 when construction commenced to convert the premises into a bar and retail shop. Over the following years, Ms. Udovičić filed numerous complaints raising concerns about the legality of the bar’s operating license, insufficient sound insulation, and persistently excessive noise levels. Despite initiating both administrative and civil proceedings, her efforts proved unsuccessful. Her civil claim, filed in 2006, was dismissed in 2007 on the grounds that the noise did not exceed legal thresholds. Subsequent constitutional and criminal complaints were similarly rejected in 2008.
The ECtHR found a violation of Article 8 of the European Convention on Human Rights. The Court reaffirmed that environmental pollution, including noise, may constitute an infringement of Article 8 rights when it reaches a certain level of severity. Whether this threshold is met depends on factors such as the intensity and duration of the nuisance, and the degree of its impact on an individual’s health or quality of life (§ 139). In its assessment, the Court examined several expert reports. While some indicated compliance with regulatory noise limits, others showed exceedances. Significantly, the most recent expert assessment confirmed that noise levels exceeded permissible standards and that the soundproofing measures in place were inadequate. The Court also highlighted the bar’s continuous operation for over a decade and the high number of police interventions—87 in total, resulting in 42 administrative measures related to breaches of public order (§§ 141–149).
Despite Ms. Udovičić’s repeated appeals to administrative bodies, the authorities failed to adopt any effective remedial measures. This prolonged inaction reflected a lack of due diligence and a failure to appropriately balance the competing interests involved (§§ 152–160). The Court emphasized that although Article 8 does not impose specific procedural requirements, the decision-making process must be fair and must duly consider the interests protected by Article 8 (§ 151). Relevant procedural safeguards include the nature of the decision-making process, the extent of individual participation, and the availability of adequate remedies.
Ultimately, the Court held that the Croatian authorities had not fulfilled their positive obligations under Article 8. By allowing the disturbances to persist for over a decade without effective intervention, the state failed to protect Ms. Udovičić’s right to respect for her private life and home. This judgment underscores the importance of procedural fairness and proactive state measures in addressing environmental nuisances that interfere with Convention rights.
In Hatton and Others v. United Kingdom (2001), [34] residents near London’s Heathrow Airport challenged night flight restrictions, claiming excessive noise violated their Article 8 ECHR right to private and family life. Despite a 1993 UK quota system limiting noise from aircraft, particularly during 11:30 p.m. to 6:00 a.m., the applicants argued the measures were inadequate. Domestic courts upheld the policy’s legality, exhausting remedies by 1996. The ECtHR Chamber found a violation of Article 8, citing insufficient research on noise-related sleep and health impacts, failure to explore less intrusive alternatives, and inadequate justification of economic benefits. The UK’s quota system did not sufficiently balance residents’ rights against economic interests, rendering the interference disproportionate. Additionally, a violation of Article 13 was found, as the UK judicial review was too narrow, focusing on procedural rationality rather than substantive proportionality. The ruling highlighted states’ positive obligations to mitigate environmental nuisances like aircraft noise, ensuring a fair balance between the competing interests—those of the affected residents and those of the wider public economy.
Interestingly, the Grand Chamber of ECtHR reversed the earlier judgement in 2003, ruling no violation of Article 8 of the ECHR.[35] The Grand Chamber emphasized the UK’s “margin of appreciation”, granting states discretion in balancing individual rights with public interests in complex policy areas like aviation and economic planning.[36] It noted the UK’s extensive consultation process, progressive noise mitigation measures (e.g., refined quotas), and the economic importance of night flights for Heathrow’s global competitiveness. The Court held that the UK’s policy was reasonable and proportionate, not arbitrary, and within its discretion, as states are better positioned to assess technical and economic trade-offs, including sleep research and air traffic logistics. The Grand Chamber confirmed that Article 8 applies to environmental nuisances like noise when individuals are seriously affected, whether caused directly by the state or through inadequate regulation of private activity. However, a fair balance must be struck, with states retaining flexibility under Article 8(2).
The Hatton and Others v. United Kingdom case (2001, 2003) is pivotal in debates over Article 8 ECHR’s application to environmental nuisances, particularly noise pollution from Heathrow Airport’s night flights. The 2001 Chamber ruling found violations of Articles 8 and 13, criticizing the UK’s quota system for insufficiently protecting residents’ right to a peaceful home. Rhona K.M. Smith praises the Chamber’s rigorous scrutiny, which narrowed the state’s margin of appreciation, independently assessed the policy’s inadequacies, and rejected economic justifications without robust evidence, emphasizing that economic well-being under Article 8(2) does not automatically outweigh individual rights in environmental cases.[37]
Conversely, the 2003 Grand Chamber reversed this, upholding the UK’s measures due to thorough consultations, noise mitigation efforts, and economic necessity, granting a wider margin of appreciation. It stressed that states, better equipped to handle complex policy, need only act reasonably, not perfectly, when balancing rights and public interests.[38] This shift from the Chamber’s rights-centric approach to the Grand Chamber’s deferential stance highlights ongoing tensions in prioritizing individual protections versus state discretion in
The Efficacy of “Anti-Gender-Based Violence Laws” in Addressing the Scourge of Gender-Based Violence in South Africa
Full text linkSouth Africa has encountered a notable increase in incidents of gender-based violence (GBV) over recent years. The failure of South Africa’s criminal justice system to effectively address GBV cases has resulted in the stigmatisation of the system. Consequently, the public’s trust in the criminal justice system has diminished. In 2023, three ‘‘anti-GBV laws were enacted; these laws aimed at combating GBV, namely the Criminal Law (Sexual Offences and Related Matters) Amendment Act, the Criminal and Related Matters Amendment Act, and the Domestic Violence Amendment Act (DVVA). This study evaluates the efficacy of these laws in mitigating the prevalence of GBV in South Africa. Specifically, the research seeks to determine whether the anti-GBV laws offer protection to victims both before and after their rights are violated by perpetrators of gender-based violence. Additionally, the study investigates whether these laws expedite the legal processes involved in handling GBV cases. A comparison is made between the newly enacted laws and the Domestic Violence Act, which is recognised as the primary legislation governing GBV in South Africa. Recommendations are provided regarding the effective implementation of preventive legal measures outlined in the DVAA to safeguard GBV victims and combat the escalating rates of GBV in South Africa. This is a qualitative study, and it draws its insights from various sources, including articles, case law, legislation, the Constitution, and international legal frameworks.
Keywords: Gender-based violence, victims, anti-GBV laws.
Introduction
Gender-based violence (GBV) is defined as the ‘violence that is directed at an individual based on his or her gender. It includes physical, sexual, and psychological abuse; threats; coercion; arbitrary deprivation of liberty; and economic deprivation, whether occurring in public or private life. Gender-based violence takes on many forms and can occur throughout the lifecycle.[1]
The article’s main focus is on gender-based violence against women and children due to the high number of cases of GBV that are reported. Bosielo JA in S v Makatu[2] emphasised “the escalating trend of violent crimes, such as murder and sexual offenses, in the nation. These criminal activities significantly threaten the fundamental societal and ethical structure. The society is experiencing a profound division. A large portion of the population, especially the marginalised and powerless groups like women, children, the elderly, and the sick, live in constant fear. It is a fact that virtually every female in the country is at risk of becoming a victim of either murder or rape. This unfortunate reality is juxtaposed against the backdrop of the emerging constitutional democracy, which promises a better existence for all. These offenses have permeated our picturesque nation’s entire territory like a destructive disease. They pose a severe threat to our emerging democracy and must be eradicated at their core”.[3]
GBV is acknowledged as a severe infringement of human rights,[4] impacting predominantly women and girls, perpetuating ongoing harm.[5] This hinders their ability to live up to their fullest potential in a state of liberty and peace.[6]
GBV is one of South Africa’s most serious and disturbing problems. According to the 2023/2024 crime statistics, South Africa recorded 10,516 rapes, 1,514 cases of attempted murder, and 14,401 assaults against female victims in July, August, and September. In the same period, 881 women were murdered.[7] This is a worrying trend that has been identified and reported globally. The Minister of Police described South Africa as being brutal and dangerous to women and children.[8] In Tshabalala v S.,[9] the court observed that hardly a day passes without any incident of gender-based violence being reported.[10] The number of social media campaigns seeking justice for victims of gender-based violence also demonstrates this.[11]
These crimes are mostly publicised on social media platforms, which results in campaigns and hashtags ‘justice for victims of gender-based violence’, which have created a perception that the criminal justice system is failing to prioritise the interests of victims of gender-based violence. As a result, they resort to social media or commit vigilantism. The effect of gender-based violence is a significant human rights infringement with real social and formative effects on the victims, their families, networks, communities, and society.[12] In response to this scourge, three anti-GBV laws were enacted, namely the Criminal and Related Matters Amendment Act,[13] the Criminal Law (Sexual Offences and Related Matters) Amendment Act,[14] and the Domestic Violence Amendment Act.[15] This paper focuses on the recently assented anti-GBV laws, arguing for the proper implementation and effectiveness of these anti-GBV laws in protecting and promoting the interests or rights of victims of GBV as well as eliminating the high rise in cases of gender-based violence. It also argues against the public’s perceptions, which are based mostly on social media platforms, that the criminal justice system favours the perpetrators of GBV instead of protecting the victims.
1. Synopsis of Cases of Gender-Based Violence in South Africa
This section presents a brief overview, albeit not comprehensive or exhaustive, of a range of atrocious offences documented in diverse media platforms, perpetrated against women and identified as having elicited significant public reaction.
In 2013, a 17-year-old Anene Booysen was brutally attacked, raped, and disembowelled in Bredasdorp, Western Cape. In 2017, a 22-year-old Karabo Mokoena went missing, and her body was later found burned in an open field in Johannesburg.
In 2019, a 19-year-old university student Uyinene Mrwetyana was raped and murdered at a post office in Cape Town.
Pule, a 28-year-old South African woman, 8 months pregnant at the time, was declared missing. After an investigation, police established that her boyfriend, Ntuthuko Shoba, was responsible for her murder by hiring a hitman to kill her.
Ms Namhla Mtwa was brutally gunned down at the gate of her home in Mthatha, and no arrests have been made regarding her death to date.
In 2021, a 23-year-old law student, Nosicelo Mtebeni, was killed and her body dismembered; her body was found stuffed inside a suitcase in East London by her boyfriend.
The body of a female child aged 6 was discovered concealed beneath a bed subsequent to her disappearance being documented on Thursday, the 7th of December 2023, within the vicinity of NU 13 Inyibiba near Mdantsane in the Eastern Cape. The individual responsible for this act met his demise due to the vigilante actions carried out by the community’s residents.
These are not the only victims of GBV; the list is endless, which is an alarming factor that needs to be addressed. This paper notes the responses to protecting the victims of GBV, such as the establishment of the Commission of Gender Equality (CGE) in terms of section 187 of the Constitution, which promotes gender equality and protection, development, and attainment of gender equality.[16]
2. Legal Framework on Gender-Based Violence in South Africa
GBV is also a human rights issue as it violates the rights of its victims. GBV is recognised as being not only a South African issue; rather, it is a worldwide problem. The spate of GBV has existed for a long time; in South Africa, it is also linked to the apartheid regime, which discriminated against blacks.[17] However, when South Africa became a democratic country, it tried to eliminate all the roots of apartheid, including gender-based violence. This part analyses the legal instruments developed to fight GBV nationally and internationally.
2.1. International legal instruments on GBV
South Africa adheres to numerous international instruments aimed at fostering equality and non-discrimination. The eradication of gender-based violence stands out as a primary objective in upholding the principles of the global community. Reflecting on the year 1948, when the Universal Declaration of Human Rights was adopted,[18] South Africa, despite refraining from signing the declaration due to the apartheid regime, contributed to the consolidation of a rights framework that promoted international peace at the domestic level.
The International Covenant on Civil and Political Rights (ICCPR), enforced in 1976, prohibits discrimination based on gender.[19] There is a contention that the ICCPR’s prohibition of “inhuman or degrading treatment” should be construed as a prohibition against violence towards women.
The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1979 marked a significant advancement in securing essential rights for women.[20] It mandates states to undertake necessary actions, such as legal reforms, to amend or eliminate existing laws, regulations, customs, and practices that perpetuate discrimination against women.[21]
In 1993, the United Nations Declaration on the Elimination of Violence against Women (“DEVAW”) was adopted by the UN General Assembly.[22] This declaration characterises violence as any form of gender-based aggression leading to, or having the potential to result in, physical, sexual, or psychological harm or distress to women. It encompasses acts such as threats, coercion, or unwarranted deprivation of freedom, whether occurring within the public sphere or in private settings. Member states are urged by DEVAW to diligently strive to prevent, investigate, and, in accordance with domestic laws, penalize instances of gender-based violence, regardless of whether such acts are perpetrated by state entities or private individuals.[23]
2.2. South African laws on GBV
South Africa has made huge progress in developing a legal framework that aims at eliminating gender-based violence and promoting and protecting the victims of gender-based violence. Apart from the provisions of the South African Constitution that promote equality,[24] non-discrimination,[25] and dignity[26] in all races and genders, South Africa has passed legislation in this regard with far-reaching consequences on GBV. There are laws that are enacted, for example Domestic Violence Act of 1998 as amended by the Domestic Violence Amendment Act of 2021, which is known as the legislation that protects the victims of GBV. The alarmingly high rates of GBV in South Africa led to the amendment of the Criminal and Related Matters Amendment Act,[27] Criminal Law (Sexual Offences and Related Matters) Amendment Act,[28] and the Domestic Violence Amendment Act.[29] These laws were formulated after the 2018 National Presidential Summit on GBV, which gave rise to the country’s National Strategic Plan of GBV.[30] The ‘anti-gender-based violence laws’ focus on the rights and interests of victims of gender-based violence in the criminal justice system.
DVAA came into operation on 5 August 2022. The purpose of the Act is to inter alia amend the CPA to further regulate the granting and the cancellation of bail in domestic-related offences.[31] It also seeks to regulate sentences in respect of offences that have been committed against vulnerable persons. This resulted in the amendment of the CPA.[32]
DVAA also precludes the release on bail of the person arrested for allegedly committing an offence listed under section 1 of the Domestic Violence Act, which involves persons who are in a domestic relationship. DVAA seeks to protect the victims of domestic and gender-based violence by tightening bail provisions applicable to such matters.
The Criminal Law (Sexual Offences and Related Matters hereinafter SORMA) Amendment Act took place on 31 July 2022. An essential objective of the SORMA Amendment Act is to enhance the legal framework by introducing a range of new sexual offences.
The SORMA Amendment Act establishes a new offence known as sexual intimidation.[33] This transgression occurs when an individual, with intent and unlawfully, communicates a threat to a complainant that gives rise to a reasonable apprehension of impending harm in the complainant, suggesting that a sexual offence will be perpetrated against the complainant, a family member, or an individual in a close relationship with the complainant.
The scope of the offence of sexual intimidation is broader and encompasses the threat of impending harm. Any sexual offence had awareness of a child being a victim of a sexual offence, they were obligated to report such details to a law enforcement officer. Failing to comply constituted an offence, and upon conviction, the individual could face a maximum sentence of five years’ imprisonment.[34]
The enactment of the Criminal and Related Matters Amendment Act (CRMAA) took effect on 5 August 2022. In contrast to the SORMA Amendment Act and the DVAA, which specifically address issues related to domestic violence and sexual offences, the scope of CRMAA is broader and more general. This legislation modifies various laws, including the Criminal Procedure Act[35] and the Criminal Law Amendment Act[36], to enhance support for victims of gender-based violence.
CRMAA sanctions the utilisation of intermediaries to facilitate testimony in court by vulnerable witnesses, such as children, elderly individuals, or those with physical, mental, or emotional conditions, in proceedings other than criminal trials.[37] Historically, many vulnerable witnesses have experienced intimidation and distress while testifying in court, leading to a feeling of being unheard or unfairly treated.[38] This has discouraged witnesses and eroded public trust in the legal system.[39] The amendment allows these witnesses to testify without being physically present in court, utilising an intermediary from a more informal setting, promoting their comfort and avoiding potential distress. The Act imposes stricter criteria for bail considerations in cases involving domestic violence offenses or violations of protective orders,[40] criminalising breaches of court orders aimed at safeguarding individuals from the accused.[41]
Furthermore, CRMAA mandates harsh minimum sentences for convictions of murder or attempted murder where the victim is/was in a domestic relationship with the perpetrator, as well as in cases of rape involving a child, elderly person, individual with a disability, or someone in a domestic relationship with the perpetrator.[42] The imposition of minimum sentences aims to shield vulnerable groups from violent crimes, addressing instances where the justice system failed to protect gender-based violence victims, sometimes resulting in continued suffering or tragic outcomes despite seeking help from authorities.[43] All these Acts underscore the government’s commitment to preventing such occurrences, signalling zero tolerance for gender-based violence and ensuring decisive action against offenders to safeguard victims’ rights.
3. Effectiveness of the Implementation and Enforcement of the Anti-GBV Laws for Victims of GBV in South Africa
From the above analysis and discussion, it has been observed that the recently enacted anti-GBV laws provide measures that may successfully curb the scourge of GBV in South Africa. It is also apparent that the criminal justice system played a role in this pandemic, as it has been identified as neglecting the victims of GBV; this is also evidenced in S. v Tshabalala.[44] This section responds to the recurring nature of these offenses and implicates the implementation and enforcement of these anti-GBV laws. It also argues that proper implementation and enforcement of these laws may be the solution to the scourge of GBV in South Africa.
Tlaletsi AJ in AK. v Minister of Police[45] held that ‘The state has a duty to protect women against all forms of gender-based violence that impair their enjoyment of fundamental rights and freedoms. It has to take reasonable and appropriate measures to prevent the violation of those rights. The South African Police Service (SAPS) is one of the primary state agencies responsible for the protection of the public in general, in particular women and children, against the invasion of their fundamental rights by perpetrators of violent crimes. The courts are also under a duty to send a clear message to perpetrators of gender-based violence that they are determined to protect the equality, dignity, and freedom of all women’.[46]
These amendments are important as they simplify the process for individuals seeking protection orders against perpetrators. This constitutes a crucial measure in enhancing personal safety against violence and abuse. The amendments are geared towards ensuring accountability among personnel responsible for assisting individuals reporting domestic abuse or seeking protection orders. Provisions of the Criminal Law (Related Matters Amendment Act) place a duty on the public to report any form of GBV that they have or may have noticed on someone else’s behalf. Failure to do so may result in an offence and a sentence of at least 5 years. This entails that the normal trend is that it is only the duty of the police to protect society; however, the public must not normalise GBV, and that it is not only the victim who must lay charges or report the GBV.
This paper argues against the public’s perception of the judiciary and concurs with Ntlama[47] that the judiciary is independent and the confidence in the judiciary cannot be replaced by the invidious philosophies that appear to compromise the independence of the judiciary.[48] The public is compelled by this Act to report such instances even without the victim’s permission. These anti-GBV laws have paved the way in reducing GBV that has bitten South Africa, and attempts to restore the dignity and reputation of both the criminal justice system and the judiciary. In essence, the legislature has, as a result, effected an overhaul of the Domestic Violence Act to be more responsive to the need to afford maximum protection to women and girls who are exposed to domestic and gender-based violence.[49] This is propelled by the global quest for the creation of a specific crime or offence of domestic violence. South Africa is appropriately taking heed of that call with the hopes of reducing the scourge of domestic violence and maybe, with time, reducing it to a comfort level of societal safety.
Conclusion
The scourge of GBV in South Africa has resulted in the enactment of more effective laws regulating GBV. Although South Africa is known as a country that promotes and protects human rights through its Constitution, it is disheartening to witness it being recorded globally as a country that is almost helpless in fighting GBV. This scourge has caused major issues for mostly the criminal justice system. Enacting the anti-GBV laws has shed light on not disapproving of the public’s opinion on the way that the criminal justice system has been handling things regarding GBV. From the above discourse, these anti-GBV laws promote the protection and possible ways that the courts must adhere to when dealing with cases of GBV and protect the rights and interests of the victims. Proper implementation and enforcement of the provisions of DVAA on protection orders can become a great initiative in eliminating or significantly reducing GBV. This paper affirms that the duty to curb the scourge of GBV does not lie only in the criminal justice system alone; the legislative framework that regulates GBV also places a duty on the public as well, that they must report any suspicious incidents of GBV.
Bibliography
Articles:
George, L. (2020). Gender-Based Violence Against Women in South Africa. Ballard Brief: Vol. 2020, Issue 2, Article 7. Available at: <https://scholarsarchive.byu.edu/ballardbrief/vol2020/iss2/7> (Last access: 15.05.2024);
Laws and policies to prevent and respond to violence against women and children in South Africa by University of Cape Town Children’s Rights Institute;
Mbandlwa, T. (2022). Women’s Day, Women’s Month for Who? For South African Women or South African Government and Politicians? Journal of Pharmaceutical Negative Results (13), 269;
Meyiwa, T., Williamson, C., Maseti, T., Ntabanyanecom, G.-M. (2017). A Twenty-Year Review of Policy Landscape for Gender-Based Violence in South Africa. Gender and Behavior, Vol. 15, no. 2;
Mpako, A., Ndoma, S. (2023). South Africans see gender-based violence as most important women’s-rights issue to address. Institute for Justice and Reconciliation;
National Strategic Plan on Gender Based Violence and Femicide is a policy document developed to address GBVF in South Africa;
Ncube, P.M. (2021). Protection Orders in South Africa: The Effectiveness of Implementation and Enforcement for Victims of Gender-Based Violence. Unpublished Dissertation. (M.Phil.). University of Cape Town;
Nobanda, L., Nkosi, S.L., Sibanyoni, E.K. (2021). A Possible Explanation of Violence Against Women During the Covid-19 Lockdown in South Africa: A Systematic Review. Acta Criminologica: African Journal of Criminology & Victimology, Vol. 34, no. 3;
Nomnganga, P. (2021). The Right to a Speedy Trial for Crime Victims in South Africa. LLM Dissertation at Walter Sisulu University (Unpublished), 31;
Ntlama, N. (2020). Gender-Based Violence Ignites Re-emergence of Public Opinion of Judicial Authority. De Jure Law Journal, 286-306;
South African Government. Minister General Bheki Cele: Quarter four Crime Statistics 2023/24. Available at: <www.gov.za> (Last access: 05.02.2025);
The World Bank. (2019). Gender-Based Violence (Violence against Women and Girls). Available at: <https://www.worldbank.org/en/topic/socialdevelopment/brief/violence-against-women-and-girls>. (Last Access: 15.01.2025);
UN High Commissioner for Refugees
The Abortion of Deformed Fetus Between Criminalization and the Legitimacy of Therapeutic Pregnancy Termination in Algerian Law
Full text linkThis article examines a critical and highly debated issue concerning the abortion of a deformed fetus, a topic that continues to provoke significant legal and ethical discussions. Abortion, as addressed by statutory legislation, balances two competing rights: the fetus’s right to life and the woman’s right to bodily autonomy. Algerian law, however, gives precedence to the fetus’s right to life, whether the fetus is healthy or deformed, and criminalizes intentional abortion, whether performed by the mother or a third party. The crime is deemed complete when its legal elements are fulfilled, except in cases of necessity. The Penal Code explicitly exempts cases where the mother’s life is at risk, recognizing therapeutic abortion as a lawful exception. Additionally, Health Law No. 18-11 allows for therapeutic termination of pregnancy when the mother’s life or psychological and mental well-being is threatened, provided that the procedure is conducted in a public healthcare institution. However, the law does not explicitly address the issue of deformed fetuses, leaving this matter without a clear legal directive.
Keywords: Abortion, crime, deformed fetus, therapeutic pregnancy termination, necessity.
Introduction
The right to life is protected by international and national laws and is considered the most fundamental right associated with human beings. Violation of this right is a punishable offence. In addition, the fetus in the mother’s womb is granted certain rights by law, the most important of which is the right to life, which manifests itself in its stability in the mother’s womb. This protection is intended to protect it from actions that might prevent it from being born alive, referred to in positive legislation as abortion. Abortion is generally criminalized, with exceptions allowing it in certain cases.
This applies to a healthy fetus; however, medical advances may reveal the existence of a fetus with congenital malformations, resulting in the birth of a child with severe conditions that make life either impossible or difficult, requiring constant assistance from others. As a result, many couples consider terminating such pregnancies, especially in the face of women’s rights advocates who consider it a right to be exercised at will, thus placing abortion in a delicate balance between two rights: the mother’s right to decide whether to keep her fetus, and the fetus’s right to life.
Although abortion is an affront to humanity at its most vulnerable developmental stage, the 1948[1] Universal Declaration of Human Rights, while affirming the right to life after birth, overlooks the prenatal stage, as the fetus is not considered a human being at that point. Interest in the rights of the unborn began to grow with the adoption of the American Convention on Human Rights in 1969, which in Article 4 explicitly recognized the right of every human being to a dignified life from the moment of conception.[2] Before this, the preamble to the 1959 Declaration of the Rights of the Child stated that “the child, in view of his or her physical and mental immaturity, needs special protection and care, in particular appropriate legal protection, both before and after birth”.[3]
Legislation generally criminalizes abortion, but allows it in certain cases. Advances in medical technology have made early detection of fetal conditions easier, and there has been a noticeable increase in cases of fetal malformation due to various factors, including genetic problems or medication use. This has led to increased research and conferences addressing the issue from medical, ethical, legal and religious perspectives, amidst legislative silence.
The importance of this research lies in the severity of the conditions faced by a deformed fetus and the difficulties it causes to its family, as well as the desire of some individuals to terminate such pregnancies before birth. However, these actions should not be governed by personal whims, but by religious, legal and ethical provisions. The legislator has not explicitly addressed the issue of deformed fetuses in the newly introduced texts on abortion, which criminalize it as a general rule but allow it in certain therapeutic cases.
Despite the enactment of Health Law No. 18-11, which establishes the legality of therapeutic abortion and expands its conditions, the law’s position on fetal malformation remains ambiguous. Thus, when is the termination of a deformed fetus considered a criminal offence, and in what cases does the law permit therapeutic abortion?
To address this issue, the analytical method was primarily used by analyzing legal texts to derive the legislator’s position on the termination of deformed fetuses and the cases of criminalization and permissibility. In addition, the descriptive method was used when necessary to provide definitions or outline legal conditions and to present the opinions of scholars on the subject.
The topic is therefore divided into two main sections: the first section deals with the criminalization of the abortion of deformed fetuses, while the second section is dedicated to the legality of therapeutic abortion in cases of deformed fetuses.
Criminalization of the Abortion of Deformed Fetuses
A deformed fetus is a living fetus that has certain congenital malformations, whether these malformations are externally visible or internally hidden. These malformations may be incompatible with intrauterine life, resulting in spontaneous abortion, or they may be compatible, resulting in the birth of a child with physical defects or organ dysfunction.[4] Despite the suffering of a child born with congenital defects, the law protects such fetuses both before and after birth, just as it protects any normal fetus. Abortion is considered a crime in principle whenever its elements are present (section one), and penalties are imposed once these elements are collectively established (section two).
1.1. Elements of the crime and applicable penalties
The Penal Code criminalizes abortion in articles 304, 306, 309, and 310,[5] considering it a violation of the right to life of the fetus, regardless of the means used. Article 304 of the Penal Code states that anyone who aborts a pregnant woman or a person presumed to be pregnant, with or without her consent, by giving her food, drink or medicine, or by using force or any other means, shall be punished by imprisonment for one to five years and a fine of DZD 100,000 to DZD 500,000. If the abortion results in death, the penalty is temporary imprisonment for ten to twenty years.[6]
1.1.1. Presumed element of the offence
The object of the offence is the existence of pregnancy, i.e. the fetus in the mother’s womb or the presumption of its existence. The crime is not committed if the act is committed on a non-pregnant woman, as the law requires a woman who is pregnant or presumed to be pregnant, as stated in Article 304 of the Criminal Code.
The protection of the fetus against abortion begins with the fertilization of the ovum in a normal pregnancy and continues until birth. It should be noted that the act must be committed on a pregnant woman or a woman presumed to be pregnant. The presumption of pregnancy is a very short period, not exceeding ten to fifteen days from the date of the missed menstrual cycle.[7]
In the case of artificial insemination, the text does not apply to embryos fertilized outside the human body, even if they are kept for some time. The application of abortion laws only begins once they are implanted in the uterus and become an established pregnancy. This is because the article criminalizes the abortion of a pregnant woman, and a fertilized ovum does not constitute a pregnancy as long as it remains outside the human body, becoming one only after implantation in the uterus.
1.1.2. The material element of the offence
In general, the material element of the offence consists of an act performed by the offender that results in the termination of a pregnancy.[8] This element consists of three components: a physical act, a criminal result, and a causal link between them. The physical act is the intentional criminal behavior of the offender to achieve the intended result and includes any act that results in the termination of the pregnancy.[9] Its classification varies from a misdemeanor if the abortion is caused by the administration of drugs or other means that lead to abortion, to a felony if the abortion results in death.[10]
The penal legislator has mentioned the means of abortion as an example in Article 304 of the Penal Code, which states that anyone who aborts a pregnant woman or a person presumed to be pregnant by giving her food, drink or medicine, or by using methods or acts of violence or any other means, whether she has consented or not, or by attempting to do so, shall be punished. The legislator has broadened the means of abortion to include any physical activity, the use of drugs or food, intimidation of the pregnant woman, threats and other means, all of which constitute a physical act if they lead to abortion.
Regardless of the means used for abortion, it is necessary to prove that the means used caused the abortion. This is a matter for the judge in the case, who will be guided by expert opinion.[11] According to Article 304 of the Penal Code, the mere attempt to perform an abortion is punishable.
The criminal result is the termination of the pregnancy or the expulsion of the fetus from the womb before the natural time. For the crime to be established, the fetus may be expelled alive or dead. The criminal result can take two forms: the death of the fetus in the womb while it remains in the womb, or the expulsion of the fetus from the womb, alive or dead.[12]
In addition to the above-mentioned aspects of the offence, a causal link must be established between the offender’s conduct, i.e. the act leading to the abortion, and the death of the fetus or its expulsion from the mother’s womb before birth. It must be proven that the means used were the cause of the abortion, and it is the responsibility of the judge to resolve this issue, with the assistance of medical experts.
1.1.3. The mental element
The mental element refers to criminal intent, as abortion is considered a premeditated crime, which requires the offender to be aware that he is committing a crime and to have the intention to achieve the result, which is abortion. Therefore, there must be a general criminal intent, which can be established simply by providing the means that lead to the result or by performing acts that lead to the criminal result. Criminal intent consists of two elements: knowledge and intent, meaning that the perpetrator knows that his act is aimed at a pregnant woman and that the means he uses can lead to an abortion.[13]
If the perpetrator does not know that the woman is pregnant, the offence is not committed. Similarly, if they do not know that the means used will cause an abortion, they cannot be punished. Thus, if an abortion is performed by mistake, whether by a doctor or someone else, there is no criminal intent.
1.2. Penalties for the crime of abortion
The law provides for primary and supplementary penalties for those who commit the act of abortion, whether as the principal actor or as an accomplice.
1.2.1. Primary penalties
Article 304 of the amended Criminal Code provides for a prison sentence of between one and five years and a fine of between DZD 100,000 and DZD 500,000 for anyone who performs an abortion on a pregnant woman. This misdemeanor becomes a felony with a prison sentence of 10 to 20 years if the abortion results in death.
According to Article 305 of the amended Criminal Code, if it is proven that the offender habitually performs abortions as referred to in Article 304, the prison sentence shall be doubled in the case referred to in the first paragraph of the same Article and increased to the maximum in the case referred to in the second paragraph.
In addition, Article 306 of the amended Penal Code states that persons who instruct others on how to perform or facilitate an abortion, such as doctors, midwives, dental surgeons, medical students, pharmacy students, pharmacy employees, drug preparers, manufacturers of medical instruments, dealers in surgical instruments, nurses and masseurs, shall be liable to the penalties specified in Articles 304 and 305, respectively. For a woman who performs an abortion on herself, Article 308 of the Penal Code provides for a prison sentence of six months to two years and a fine of DZD 20,000 to 100,000.
As for incitement, Article 310 of the Penal Code provides for a prison sentence of two months to three years and a fine of DZD 20,000 to 100,000 or one of the two penalties. The offence of incitement to abortion is committed even if the criminal result is not realized, regardless of whether the inciter is the main actor or merely directs someone to the means leading to abortion, as specified in Article 310. If the incitement is directed against a person, Article 42, which provides for the punishment of accomplices, applies.[14]
1.2.2. Additional penalties
- Ban on residence
In addition to the main penalties provided for in article 304 of the Criminal Code, the last paragraph of the same article states that a ban on residence may be imposed in all cases. Article 306 also provides for this prohibition in accordance with the provisions of the Penal Code. This additional penalty for the offence of abortion, even if the fetus is deformed, consists of a prohibition of residence for a period of up to five years in cases of misdemeanor, in accordance with article 12 of the Penal Code, to be applied from the day on which the primary penalty is fulfilled or the offender is released. The imposition of this penalty is at the discretion of the judge, i.e. it may be imposed or not.
- Disbarment
According to the amended Article 306/2 of the Criminal Code, perpetrators of the crime of abortion may be disqualified from exercising their profession if the judge finds a direct link between the crime committed and the exercise of the profession. The amendment of the above article by Law 24-06 requires proof of a direct link between the crime of abortion and the exercise of the profession to deprive the perpetrator of his or her professional rights. In the absence of such a link, the perpetrator is not disqualified from practicing his profession.
In addition, article 311 of the Penal Code stipulates that any conviction for the crime of abortion, whether by conviction, attempt or complicity, automatically leads to a ban on exercising any profession or working in clinics or maternity wards, or in any public or private institution that normally receives women in a state of actual or presumed pregnancy, whether for pay or not.
Legality of Therapeutic Abortion for Malformed Fetuses
As previously mentioned, the default position is the criminalization of abortion, penalizing it regardless of whether the fetus is healthy or malformed. The law also protects the latter and prevents any assault on it, as the legal texts broadly criminalize anyone who aborts a pregnant woman or even one presumed to be pregnant. The law provides exceptional cases in which abortion is permitted under specific conditions, which include situations where the termination of pregnancy is justified by medical ethics for various reasons, such as tuberculosis, breast cancer, or severe psychological disorders, including hypertension and others.[15]
Before considering the conditions under which abortion is permitted, it is important to distinguish between the terms “abortion” and “therapeutic termination of pregnancy”, and then to examine the conditions under which therapeutic termination of a malformed fetus is permitted.
2.1. Distinction between abortion and therapeutic termination of pregnancy
The terms “abortion” and “therapeutic termination of pregnancy” overlap in several respects, as both terminate the life of the fetus. Abortion is the voluntary termination of pregnancy, known as criminal abortion, which involves the evacuation of the uterus by any means, such as the use of drugs, physical force or surgery, and is not intended to protect the life of the mother, as there is no medical need for a woman to abort herself or for someone else to assist her in doing so
Conversely, therapeutic abortion is a medical intervention to terminate a pregnancy based on the medical necessity of the mother when the pregnancy poses a risk to her health or life, such as in cases of chronic illness or ectopic pregnancy. Here, the necessity of abortion moves the act from the realm of criminality to that of permissibility. It is noteworthy that medical advances have reduced the need for abortion to save the life of the mother, as doctors can resort to inducing labor or performing a caesarean section to save both the fetus and the mother.[16]
It should also be noted that the legislator used the term “therapeutic abortion” in Article 72 of the repealed Health Protection and Promotion Act to refer to the need to save the life of the mother from danger or to preserve her physiological and mental balance, which is in serious danger.
Thus, the act moves out of the realm of criminalization when it is committed in circumstances that limit the application of its specific penal text, because the interest of society in permitting the act outweighs the interest in criminal behavior, losing it. This is known as the justification of permissibility, i.e. the permissibility of a criminalized act. It is therefore essential to establish a state of necessity, where harm can only be avoided by committing a crime. In legal terminology, necessity refers to a situation in which a person is exposed to danger or severe hardship, which causes fear of harm or injury to oneself, a part of one’s body, one’s reputation, one’s mental state or one’s property and its consequences.[17] In such cases, it becomes necessary or permissible to perform a prohibited act or to neglect or delay a duty to avert harm, according to the prevailing assumptions within the framework of the Sharia.
The Algerian legislator has defined necessity as a cause of permissibility in Article 48 of the Penal Code, which states: “There is no punishment for anyone who is forced to commit a crime by a force he is unable to resist”. This remains a general rule regarding the prohibition of criminal liability and includes the permissibility of abortion when a state of necessity is established. However, the details of the conditions for the permissibility of abortion have been specifically regulated by the legislator.
Following the repeal of the Health Protection and Promotion Act and the enactment of Health Act No. 18-11,[18] Article 77 introduces the concept of “therapeutic abortion”, which states that “Therapeutic abortion aims to protect the health of the mother when her life or mental and psychological balance is threatened by pregnancy”.
It is noteworthy that the legislator’s intention has maintained the removal of therapeutic abortion from the realm of criminalization to that of permissibility, with the only innovation being a change in terminology to distinguish between the crime of abortion and the permissibility of therapeutic termination of pregnancy. Moreover, the term “therapeutic” suggests that it is carried out by a doctor who, after a series of examinations and analyses, is forced to terminate the pregnancy for the sake of the mother’s health and life.
2.2. Conditions for the permissibility of therapeutic abortion for malformed fetuses
Algerian law does not specifically address malformed fetuses in specific texts, but uses broad terms interpreted by jurists to include cases of carrying a malformed fetus. In reality, these texts favor the life and health of the mother over that of the fetus, or in other words, protect the mother and her health. Therefore, the protected interest is that of the mother, and the legal texts apply equally to both healthy and malformed fetuses. In general terms, Health Law No. 18-11 establishes a series of conditions for the termination of pregnancy, some of which relate to the protection of the mother’s life (section 1), while others relate to threats to the mother’s mental and psychological balance (section 2), and require that the procedure be carried out in a public health facility (section 3).
2.2.1. Termination of pregnancy to protect the health of the mother
In certain cases, a pregnancy may endanger the life of the mother. The doctor has no choice but to terminate the pregnancy, which is in principle a criminal offence. However, the law justifies this criminalization if the pregnancy endangers the life of the mother.
Article 308 of the Penal Code states: “There is no penalty for abortion if it is necessary to save the mother’s life from danger, provided it is performed by a doctor or surgeon in a non-secret manner and after notifying the administrative authority”. The article requires that the act be performed by a doctor or surgeon and that the administrative authority be informed for the act to be deemed permissible.
In addition, Article 77 of the Health Code refers to therapeutic abortion when the pregnancy threatens the mother’s life, thus removing the act from the realm of crime and placing it in the realm of medical treatment. If the fetus is severely deformed and threatens the mother’s life, the law allows therapeutic abortion to protect the mother’s life.
Islamic jurisprudence has also dealt extensively with the issue of intentional abortion. Some scholars have forbidden it outright, while others have allowed it only after the soul has been implanted in the fetus, except in cases of necessity to save the life of the mother. It is believed that the soul is implanted af
კანონისმიერი მემკვიდრეების რიგების სრულყოფის საკითხები ქართულ კანონმდებლობაში
No full textThe article concerns the issue of the perfection of the ranks of legal heirs, the importance of marriage registration, and the prerequisites for its validity when receiving an inheritance. In Georgian reality, the law is often ignored, and spouses do not apply for official marriage registration in accordance with the procedure established by law when getting married. Marriage registration falls within the scope of state competence. For years, spouses have been living together in actual cohabitation, have children together, and are engaged in joint farming, but since they are not in a registered marriage, in the event of the death of one of the spouses, the other spouse cannot become his or her heir. The inheritance is received by the children of the deceased person or other relatives of the next order, while the surviving spouse remains without property, which, naturally, causes a great sense of injustice among people. This issue is one of the important and widespread problems in practice when talking about the improvement of the ranks of inheritance. It should be said how important the registration of marriage is for the emergence of rights and obligations between spouses, as well as for that particularly important right called the right to be an heir. The article discusses ways to equalize the actual cohabitation of spouses and registered marriage to improve the ranks of legal heirs.Keywords: Inheritance, legal, marriage, registration, spouses, cohabitation.
Introduction
Roman jurists were already discussing issues related to marriage, arguing that matters related to marriage should be regulated with precision.[1] The development of Roman law underlies much of European law. Ancient Georgian law was influenced by religion, defining marriage as the union of a man and a woman to create a family and procreation.[2] According to modern Georgian law, legal rights and obligations arise for individuals after marriage registration.[3] An unregistered family can be created through the actual cohabitation of individuals, but the term marriage obliges individuals to register. Here the question arises as to what importance is attached to marriage registration. The state has established that civil registration is necessary for the legal validity of marriage. Based on the analysis of Georgian judicial and notarial practice, it should be said that problems with marriage registration particularly often arise during the conduct of inheritance cases after the death of one of the spouses. If a couple is not in a registered marriage, they are not considered each other’s heirs under the law, which creates certain contradictions regarding the issues of completing the ranks of legal heirs.
Issues of Perfecting the Ranks of Legal Heirs
Based on Article 48 of the Law on Civil Acts, marriage registration is carried out in accordance with the rules established by the relevant authority.[4] According to Article 312, Subparagraph “c”, Part Two of the Code of Civil Procedure of Georgia, the court is authorized to confirm the fact of marriage registration.[5] It should be noted that in the uncontested procedure, the court only establishes the fact of marriage registration. The court is not authorized to equate cohabitation with a registered marriage.[6] The Supreme Court of Georgia explained that the fact of marriage is determined by a combination of evidence.[7] According to Article 1107 of the Civil Code, marriage contains two conditions: marriageable age and the consent of the persons to be married.[8] The Supreme Court explained that before the official registration of marriage, various rights and obligations do not arise between spouses, including joint property.[9] When discussing the legal status of spouses in an unregistered (de facto) marriage, it should be noted that according to Georgian law, de facto cohabitation is not a prerequisite for the emergence of civil rights.[10] Often, couples limit themselves to a religious marriage (by baptism) and do not consider it necessary to register the marriage. In Georgian reality, there are frequent cases where a couple lives together for years, runs a common household, and has children, but in the event of the death of one spouse, the other spouse cannot become his or her heir.[11] Article 111 of the Criminal Code of Georgia states that for this law, a person in an unregistered marriage is also considered a family member if they are engaged in household activities together. This entry further obscures the legal nature of de facto marriage, as for criminal law purposes, a person in an unregistered marriage has other legal rights.[12] But in civil law, he has no rights. The question arises - if registered and unregistered marriages can be equated in criminal law, why can’t a similar approach be taken in civil law? If this one reason (common household) is a sufficient basis for criminalizing de facto and registered marriage, it would be fair if civil law also could equate registered and de facto marriages in special circumstances. Based on practice, it should also be regulated what kind of evidence will be required to make such a decision. There have been several decisions to equalize registered and de facto marriages, but none have been finalized.[13] One such case concerned the receipt of an inheritance, where the plaintiff requested the establishment of the fact of marriage, and accordingly the opening and receipt of the inheritance. The court of first instance satisfied the claim, guided by and explained that it was possible to equate registered and actual life under the decree of the Supreme Presidium of the Georgian SSR that existed before 1944. The second instance court explained that the court could have established a de facto marriage before 1944, but for this, the second spouse had to apply, not the interested party. Also noteworthy is the court decision regarding the division of property acquired in an unregistered marriage.[14] Despite the unregistered marriage, the Tbilisi Court of Appeals considered that the couple’s union went beyond the scope of de facto cohabitation and equated their relationship with a registered marriage. It made an interesting decision, based on which the spouse acquired the right to co-ownership of the property acquired during de facto cohabitation.[15] This ruling was motivated by a 1994 decision of the European Court of Human Rights, which stated that in the presence of relationships such as family and other types of relationships, an unregistered family may, in exceptional cases, be equated with a registered marriage, in which case state-established regulations are not necessary for the origin of the family.[16] The Supreme Court did not share this opinion and explained that the origin of property rights depends on the registration of marriage, which is unambiguously established by Article 1151 of the Civil Code.[17] It would be better, to protect the interests of couples, if the Georgian court goes beyond the norm\u27s framework and chooses a fair decision. As early as 1994, the European Court of Human Rights explained that the registration of a marriage should not be decisive for a de facto marriage to be considered a family. The main thing is that the couple’s marriage meets such criteria as: jointly managing a common household, having children together, registering and living at the same address, etc. Georgian legislation is very strict about the obligation to register a marriage to obtain certain rights and obligations, including inheritance rights, which I find unfair. There are countries where, despite an unregistered marriage, couples still have rights.[18] For example, in the Kingdom of the Netherlands, citizens are given the freedom to choose between civil partnerships and marriage, and a special municipal service establishes and maintains a register for persons in unregistered marriages.[19] As for the American approach, it differs from state to state. In some states, a religious certificate is sufficient for marriage, but some states do not recognize de facto cohabitation and require registration for the validity of the marriage. Israeli law chooses a religious nature for marriage and its authority is exercised by the relevant hierarch. Based on the example of Italy, it can be said that this is a hybrid model where both religious and civil marriages operate. According to the current legislation in Georgia, no lever would legally equate a de facto (unregistered marriage) with a registered marriage. Simply stating that the couple was not in a registered marriage and therefore cannot become the heir of the deceased is unfair. The fact of marriage registration should not be the determinant of family relations, as is also confirmed by the precedents of the European Court of Human Rights. There are frequent cases when a couple’s marriage is registered not to create a family, but fictitiously, one such example being to obtain citizenship. In such a case, if one of the heirs dies, the spouse becomes his or her first-degree heir and inherits the inheritance rights, which I think is also unfair. It is necessary to have a possibility regarding this issue that would regulate such cases in notarial and judicial practice and would allow a person who was truly married, albeit without registration, to achieve a fair result, and accordingly become the full heir of his spouse. In special cases, the judge can make such an interpretation, and in doing so, he will not violate the general principles of law.[20] Such interpretations are easier for Anglo-American (common law) law countries, as they are more liberal in their interpretations, unlike judges in continental Europe. In Georgian law, I would like to highlight the ruling of the Court of Appeals of Georgia, which fairly explains the meaning of family and states that civil registration of marriage is not the only thing that is essential for a couple to be called a family. I believe that establishing such an explanation and a similar approach in practice will lead to a fair outcome for the couple and therefore protect their inheritance rights as spouses.[21] I think the only real solution is for an interested party to apply to the Constitutional Court to declare Article 1151 of the Civil Code unconstitutional. The interested person must indicate the real reason for his request, while the Constitutional Court, in turn, is obliged to examine the circumstances of the case and make a well-founded decision regarding the change in the content of the article, determine whether the article is within the framework of the Constitution or contradicts its principles, and in special cases, based on the conclusion of the European Court of Human Rights, an unregistered marriage should be equated with a registered marriage. It is also important to transfer to the person all the rights and obligations, including inheritance, that the couple would have had in the event of marriage registration, which will, to some extent, regulate the issues of perfecting the ranks of legal heirs. As we mentioned, when spouses have been in a de facto marriage for years, are registered at the same address, and have children together, but after the death of one of the spouses, the surviving spouse is restricted in their right to receive an inheritance due to the lack of marriage registration. The court’s approach to this issue is also rigid and does not allow for exceptions. It does not work in Georgian reality, and therefore the decisions are legal but less fair. The wording of Article 1151 of the Civil Code refers to “only” registered marriage, which limits other alternatives and rights, including the origin of inheritance rights of spouses. On September 12, 2018, Georgian citizen Tsiala Pertia filed a constitutional complaint with the Constitutional Court, requesting to declare Article 1151 of the Civil Code unconstitutional.[22] The plaintiff stated that he and his wife lived in his wife’s apartment from 1985 until her death (until 2014). Although their marriage was not registered, they lived as one family and met all the criteria for family life, which are also defined by the European Court of Human Rights. Despite the above-mentioned circumstances, the plaintiff did not receive the inheritance. The wife’s property was received by the testator’s sister and brother, who alienated it. Accordingly, the court of first instance decided to evict the plaintiff’s wife from the house, despite the spouses’ twenty-nine years of cohabitation. This approach creates a sense of injustice, as it restricts the right of inheritance recognized by the Constitution, is discriminatory, and contradicts both the Constitution, the Convention on Human Rights, and the decisions of the European Court of Human Rights. There is no exception in the legislation regarding this issue. The plaintiff points out that a spouse in de facto cohabitation should not be denied the right to inherit due to an unregistered marriage. It would have been important for the interested person to file a constitutional complaint regarding the content of Article 1336 of the Civil Code and demand that the spouse in an unregistered marriage be added to the ranks of the heirs. The Constitutional Court made a radically different decision, and the case did not even reach the substantive hearing. On October 29, 2008, the Constitutional Court of Georgia issued a ruling, by which the constitutional complaint of citizen Lia Surmava was not accepted for consideration on the merits.[23] According to the plaintiff Lia Surmava, she had been in a de facto, but unregistered, marriage with her husband since 1993, who died in 2005, and she was unable to receive the inheritance. He and his wife were married in a religious marriage (christening), and the plaintiff requested that the baptism certificate be equated with civil registration. The Constitutional Court did not even allow this request to be considered on the merits. It should be noted that certain approaches and views on this issue change over time. The Constitutional Court is facing a serious decision regarding the legal problem of equalizing registered and de facto marriage. If the Constitutional Court finds that a norm is unconstitutional and does not comply with fundamental human rights, then the legislature will have to establish new regulations and a procedure for resolving the issue fairly. The cohabitation of any two people should certainly not be considered an unregistered (de facto) marriage, but rather it should be supported by various criteria, which practice should regulate in each case. International practice also testifies to the fact that the state should not place individuals in unequal conditions. For example, if the right to inheritance is guaranteed by the constitution, a registered marriage should not be the only determinant for obtaining this right, since a person may become someone else’s heir completely by chance, even through a fictitious marriage. If based on legislative amendments, registered and de facto (unregistered) marriages are legally equalized, then the fact of the existence of marriage must be established by the court through an indisputable procedure. It should also be noted that establishing the fact of marriage registration is different from establishing the fact of unregistered (de facto) marriage.[24] If a provision is added to Article 312 of the Civil Code, which would allow the judge to establish the fact of a marriage, submit a statement from the interested party, and present relevant evidence, an unregistered marriage would be granted legal status and equated with a registered marriage. The burden of proof in this case will be on the applicant, which may be different.[25] Evidence may include witness testimony, a certificate of registration at a common address, a document confirming a religious marriage (e.g., a baptismal certificate), birth certificates of common children, and any other document that will help a party confirm a family relationship with a spouse in an unregistered marriage. As noted in the article, a lawsuit was being considered in the Constitutional Court of Georgia, which requested the legal equalization of a religious marriage with a civil marriage, which was rejected.[26] As for religious marriage issues, according to the Law of December 3, 1920: “On the Registration of Civil Status Acts”, religious marriages were terminated and their registration is necessary for the validity of the marriage. In Georgia, the equalization of civil marriages and religious marriages has numerous supporters and opponents. In many European countries, religious marriage is equated with civil marriage. Although the canonical and civil-legal understandings of marriage differ, the document itself, on the one hand, a religious marriage certificate and on the other hand a civil marriage certificate, is identical in content, since both documents contain the same style of requisites, the signatures of witnesses (religiously - best men). If religious marriage and civil marriage (registered marriage) are to be equalized in terms of rights, it is essential that the principle of secularism is not violated and that this privilege is not limited to one religion. The approach of different countries around the world is different: there are countries where religious marriage is not prohibited, but a civil registration document creates a legal right. In Germany, religious marriage rituals are performed, a marriage certificate issued by a religious institution is not valid, and marriage is performed only according to the rules established by the state.[27] Until 1982, the only way to get married in Greece was through a canonical marriage, but later a hybrid approach was adopted, and both civil and religious marriages are considered legally valid.[28] Unlike German law, American law does not require a civil marriage. A religious institution issues a religious marriage certificate, for which a special license is required.[29] As for the Georgian approach, it is too rigid. I believe that religious marriage should acquire legal significance. I think the American approach to this issue is fair.
Foreign Practice and Comparative Review
As for international practice, inheritance rights are regulated differently in the case of unregistered marriages. It is worth noting that in some jurisdictions the legal system recognizes de facto cohabitation (so-called “common-law marriage” or “cohabitation”). Unregistered partners may have certain inheritance rights when they have lived together for a certain period and meet other criteria. For example, in the UK, an unregistered partner has the right to go to court and file an inheritance claim. To do this, he must provide evidence that they lived together as a family and were financially dependent on their deceased partner.[30] In New Zealand, in the case of unregistered cohabitation, partners acquire certain inheritance rights if they have lived together for at least 3 years. Their relationship is considered a “de facto” relationship, which grants them rights similar to those of a registered marriage. Specific rights and claims depend on the length of the relationship and other circumstances. The rules for the distribution of property in the event of the death of a partner are regulated by the Relationships Property Act 2001.[31] European court decisions are the best example for regulating this issue. The state of Georgia is a party to the Convention on Human Rights and Fundamental Freedoms; therefore, it has a kind of obligation to reflect all new approaches at the national (legislative or judicial) level. Just signing is not enough and it is necessary to check other prerequisites as well. Johnston and Others v. Ireland.[32] The European Court of Human Rights explained that the plaintiffs: Roy and Janice Johnston, have been living together for 15 years, their relationship was established outside of marriage, and they have a child together. They are covered by Article 8 of the Convention and are part of the term “family”, and therefore they are entitled to protection under this Article. One of the important decisions, based on its content, is Kroon and Others v. The Netherlands, in which the court explained that it is possible to have a so-called “de facto” family union, when the main thing is not necessarily living together, but also other essential criteria. In this decision, the court defined having children together as such an essential factor.[33] In the court decision X, Y, and Z v. The United Kingdom (X, Y, and Z v. The United Kingdom), the concept of “family life” was clarified and marriage cannot be the only basis for creating a family. Other objective circumstances are generally considered to be “family life”, such as living together for a long time, obligations arising towards each other, mutual support, and having children together.[34] One of the first decisions, Marckx v. Belgium,[35] explains that, if the relevant criteria are met, de facto cohabitation is the basis for family cohabitation, which gives rise to the right to inherit. The Georgian judicial body has adopted several decisions, which include quotations or various explanations, using specific precedents of the European Court.[36] The European Court of Human Rights explains that a family is not based solely on marriage and family life should not be defined based on the existence of civil registration, so it is unclear why Georgian legislation holds that only a registered marriage gives rise to rights and obligations, including the right to inherit.
Conclusion
In conclusion, it can be said: that based on the Georgian legislative approach, only through a registered marriage does a spouse acquire the right to be an heir. Unr
Agricultural Crimes: A Threat to the Human Right to Food – The Case of Agroterrorism
Full text linkSeveral biological terrorist incidents targeting the agricultural sector and food processing and distribution systems have significantly heightened global concerns about food security. This situation has intensified the focus on protecting the food supply chain, which has become an attractive target for bioterrorists. Such acts constitute a clear violation of the human right to food, particularly in countries that heavily depend on agriculture to meet their nutritional needs. The right to food is a fundamental human right, affirming that every individual is entitled to sufficient and nutritious food, free from discrimination. When agriculture is subjected to terrorist attacks, both the availability and the quality of food are jeopardized. Agro-terrorism can have severe repercussions on public health, the economy, and political stability, particularly in the absence of national policies and international legal frameworks imposing criminal penalties on biological attacks against non-human targets. This situation necessitates the establishment of an international monitoring system, the strengthening of preventive measures, and efforts to counter agricultural sabotage, all aimed at mitigating the negative impacts of agro-terrorism on the right to food and nutrition. Moreover, it is crucial to intensify efforts to ensure accountability and prevent the use of biological weapons, as human rights must be prioritized more than ever.
Keywords: Right to food, agro-crimes, agro-terrorism, agriculture, food security.
Introduction
Agro-crimes and agro-terrorism are two distinct terms. Agro-crimes refer to illegal activities that impact the agricultural sector, such as tampering with agricultural products, pesticide fraud, or deliberately damaging agricultural resources, all of which harm the agricultural economy or the environment. In contrast, agro-terrorism involves the use of biological weapons or deliberate attacks targeting crops or livestock to cause chaos or threaten food security. These attacks are often politically or socially motivated, seeking to exert influence by disrupting agriculture. In essence, agro-terrorism is a specific type of agro-crime but is characterized by its particular goals and methods. The threat of biological terrorism looms larger than ever, especially with growing concerns about anthrax, smallpox, and plague, as well as reports suggesting that some of the hijackers involved in the attacks on the World Trade Center and the Pentagon had a special interest in crop-duster planes, which could potentially be used to spread aerosolized diseases. This situation has led some countries to strengthen their defenses against biological terrorism.
Despite the seriousness of this issue, many nations have not paid sufficient attention to agricultural biological warfare or bioterrorism in general. There has also been little focus on the role and responsibilities of both the public and private sectors in deterring and responding to potential attacks. Few countries fully appreciate the dangers posed by biological terrorist attacks against the food and agricultural infrastructure, as attention is often directed solely toward terrorism targeting “civilian objectives”.
Agriculture is a critical infrastructure for many nations worldwide. As one of the most productive and vital sectors globally, agriculture has made officials recognize that the vast network of food and fiber production, processing, distribution, and retailing is a potential target for hostile actors using biological agents for political, economic, or criminal purposes. Even the mere threat of such an attack can undermine consumer confidence, disrupt commodity markets, and cause significant economic havoc.
This paper explores the nature and threat of agro-terrorism and examines possible solutions for addressing this threat and mitigating the impact of biological attacks on food and agricultural infrastructure. The focus of this paper is particularly on agro-terrorism and its negative impacts on the human right to food.
Thus, the central research question is: To what extent can agro-terrorism affect the right to food? And could this impact extend to other areas?
To answer this question, the study employs a descriptive-analytical method by exploring agro-terrorism and the right to food, as well as examining the implications of agro-terrorism on food security and the right to food.
The study will be divided into two sections. The first section will cover the general framework of agro-terrorism and the right to food, while the second section will address the impacts of agro-terrorism on the right to food.
The General Framework Of Agro-Terrorism And The Right To Food
In the main body of the text, the content of the issue is presented, where an important place is given to the description of the research and analysis of outcomes, the process of research itself, and coherent analysis, according to which theoretical conclusions, interim results and overall outcomes are shown. The main part of the text is divided into structures (chapter/subchapter, paragraph, etc.), which makes the article easier to understand.
Agro-terrorism, as a form of biological terrorism, poses significant risks to human life by causing the death or disease of livestock and crops and threatening the right to food. Agro-terrorism is closely tied to this fundamental human right, as it can lead to clear violations. Negative impacts on agricultural production can result in food insecurity, jeopardizing individuals’ and communities’ ability to access sufficient and nutritious food. Therefore, it is essential to study both agro-terrorism and the human right to food.
Agro-Terrorism
The risk of terrorism targeting plants and animals is heightened by the vulnerability and accessibility of agricultural sites, as well as the ease of obtaining and spreading infectious agents. This form of terrorism involves targeting agriculture through the use of harmful viruses or bacteria, leading to the destruction of agricultural production and environmental damage.
Historical Perspective on Agro-Terrorism
Biological warfare is not a modern phenomenon. Throughout history, there have been numerous examples of using lethal or incapacitating biological agents against enemies. Two thousand years ago, the Romans threw corpses into enemy wells to poison drinking water supplies.
During the Siege of Caffa in the 14th century, the Tatars catapulted plague-infested corpses into the city, possibly triggering the outbreak of the bubonic plague that swept across medieval Europe, resulting in 25 million deaths. Historians believe that the smallpox epidemic that devastated Native American populations during the French and Indian War was deliberately caused by the British, who distributed smallpox-contaminated blankets to tribes thought to be loyal to the French.[1]
The term “biological terrorism” was coined in the late 19th century in the West. Initially, it referred to biological methods for waging war against agricultural pests, implying a metaphorical “war” rather than an actual conflict between nations. The term later evolved to encompass the use of, or plans to use, microbiology in both declared and undeclared wars.[2]
The idea of using biological weapons against crops or agricultural products is also not new. Since the 1920s, France, Great Britain, Germany, and Japan conducted research on biological weapons that included agricultural components, continuing through World War II. They studied plant and animal diseases, pests, and herbicides.[3]
During World War II, Germany planned to target British potato crops with Colorado potato beetles. According to some naturalists, the presence of these beetles in England indicated that a small-scale attack might have occurred in 1943, with the beetles released from aircraft. France’s biological warfare program, established in 1939, also focused on the Colorado potato beetle, studying its flight behavior at high altitudes. Almost all German biological research targeted England and the U.S., with an emphasis on diseases such as potato late blight (Phytophthora infestans), rice blast (Piricularia oryzae), and wheat rust (yellow and black) (Puccinia striiformis and P. graminis), along with pests like the cabbage seedpod weevil (Ceuthorhynchus assimilis). Japan, meanwhile, explored the effects of fungi, bacteria, and nematodes on various crops in Manchuria and Siberia. Japan had begun stockpiling grain rust spores, intending to attack American and Soviet wheat fields if the war continued.[4]
By 1944, the United States had initiated biological warfare research targeting humans, animals, and crops. Several pathogens were tested in the field, and some were stockpiled. The primary target of the U.S. agricultural warfare program was wheat in Ukraine and Chinese rice fields. Between 1951 and 1969, the U.S. stockpiled over 30 tons of Puccinia tritici spores, the fungus responsible for wheat stem rust. While these weapons were not practically deployed, the U.S. considered attacking Japanese rice fields in the final months of the war. Research continued in the early Cold War years, driven by the need to balance Soviet and Chinese programs with deterrence policies. On November 25, 1969, President Nixon officially renounced the U.S. offensive biological weapons program, and all stockpiles were subsequently destroyed.[5] Terrorist actions targeting agriculture persisted into the 1970s and 1980s, with incidents such as Sri Lankan tea leaves being laced with cyanide in 1985 and Chilean grapes being tainted in 1989.[6]
Biological warfare in the agricultural sector is often a consequence of military, political, or ideological conflict.
Definition of Agro-Terrorism
The term “terrorism” does not appear in ancient dictionaries, likely because the concept of terrorism is a modern one, unknown in ancient Arab societies.[7] However, as terrorist acts increased, defining the term became necessary. Terrorism is defined as “a set of acts carried out by certain groups in a specific state to achieve certain goals, whether political or economic, using various methods to instill fear in the opposing side, thereby forcing them to meet their demands”.[8] This definition applies to international terrorism in general. Biological terrorism, specifically, is defined as “the deliberate use of microorganisms and their toxic by-products to cause disease or mass casualties among humans, or to damage human-held agricultural or livestock assets, contaminate water or food sources, or destroy the natural environment, potentially for years”.[9] It is also described as “violent actions carried out by organized groups using biological weapons to achieve specific objectives”.[10]
Agro-terrorism is thus defined as “the intentional introduction of a biological agent or toxin, either targeting livestock or the food chain, with the aim of destabilizing society and/or generating fear. Depending on the pathogen or vector chosen, it is a tactic that can cause widespread socio-economic disruption or serve as a form of direct human aggression”. Another definition is “an act in which terrorists target livestock, crops, orchards, forests, fisheries, or food processing or distribution centers using biological agents or toxins to further their political, economic, or social goals”.[11]
Biological terrorism can take several forms, including direct attacks designed to kill as many people as possible, and attacks on the agricultural sector intended to cause economic chaos. Some security analysts view attacks on livestock and crops as ways to create economic turmoil without directly threatening human security. Others rank attacks on the agricultural sector among the most severe forms of biological terrorism.[12] There is no doubt that these attacks are highly dangerous, as they affect the fundamental right to food.
The Human Right to Food
The right to food is one of the fundamental human rights that has necessitated international intervention for its protection. It has been enshrined in numerous international and regional agreements and treaties. The right to food is interconnected with several key concepts, including food security, the food gap, and food sovereignty.
International Legal Foundation of the Right to Food
The Committee on Economic, Social, and Cultural Rights defines the right to food as follows: “The right to adequate food is realized when every individual, alone or in community with others, has physical and economic access at all times to adequate food or means for its procurement”.* Additionally, the UN Special Rapporteur on the right to food defines it as “the right to regular, permanent, and unrestricted access to food, either directly or through financial purchases. This food must be quantitatively and qualitatively adequate and sufficient, aligned with the cultural traditions of the people to whom the consumer belongs. It must also ensure a fulfilling and dignified life, both physically and mentally, for individuals and communities, free from anxiety”.[13] These definitions highlight three essential elements of the right to food: food availability, accessibility, and adequacy.
The right to food is a fundamental human right, protected by various international agreements and conventions. The Universal Declaration of Human Rights of 1948 explicitly recognized for the first time the right to food in international law in Article 25.[14] Similarly, the 1966 International Covenant on Economic, Social, and Cultural Rights guarantees the right to food within the broader framework of the right to an adequate standard of living in Article 11.[15] To implement the provisions of this article, the Committee on Economic, Social, and Cultural Rights adopted General Comment No. 12 in 1999, titled The Right to Adequate Food.[16]
The United Nations did not limit the protection of the right to food to general human rights instruments. It also ensured this right in specialized human rights agreements. For instance, the Convention on the Elimination of All Forms of Discrimination against Women recognizes the right to food for women in Articles 12 and 14.[17] The Convention on the Rights of the Child also guarantees the right to food for children in Articles 24 and 27.[18] Likewise, the Convention Relating to the Status of Refugees protects the right to food for refugees in Articles 20 and 23,[19] and the Convention Relating to the Status of Stateless Persons extends this right to stateless persons in Articles 20 and 23.[20] Indigenous peoples are granted this right in the Convention concerning Indigenous and Tribal Peoples, particularly in Articles 14 and 19.[21] All these international legal texts demonstrate the importance of the right to food and the necessity of its protection..[22]
Legal Mechanisms for Protecting the Right to Food During Crises
The Syracuse Principles, adopted by the UN Economic and Social Council in 1984, and the general comments issued by the UN Human Rights Council regarding emergencies and freedom of movement, provide reliable guidelines for government responses that restrict human rights for reasons of public health or national emergencies. These principles assert that any measure taken to protect the population and restrict individual rights and freedoms must be legal, necessary, and proportionate. Furthermore, emergencies must be time-bound, and any limitation of rights should account for disproportionate impacts on specific or marginalized groups.[23]
During crises, human rights must be prioritized more than ever. States have clearly defined obligations under international law, including duties to respect, protect, and fulfill human rights. These obligations also entail non-discrimination and international cooperation.
States also have a general obligation to make progress, as quickly as possible and even with “limited available resources”, in implementing the right to food and other economic, social, and cultural rights.[24] This includes a primary prohibition on regression, meaning that if states adopt retrogressive measures, they must demonstrate that such measures are necessary, reasonable, and proportionate.[25]
The Committee on World Food Security adopted the Framework for Action for Food Security and Nutrition in Protracted Crises in 2015, a policy guideline aimed at ensuring food security during prolonged crises. This framework represents the first global consensus on supporting the progressive realization of the right to adequate food during extended crises. It emphasizes the need for consistency between humanitarian, developmental, and peacebuilding efforts that address the root causes of food insecurity and malnutrition through a human rights-based approach.[26]
In addition, many countries are striving to integrate the right to food into their national legislation, which strengthens local legal frameworks to ensure individuals’ access to food. Humanitarian and developmental programs, both international and local, play a vital role in promoting the right to food by providing food aid and support to affected nations and communities. The effective realization of the right to food requires sustained international cooperation and comprehensive policies aimed at ensuring food security, with a particular focus on the needs of the most vulnerable populations. Despite these efforts, the right to food remains subject to numerous violations. The impacts of agro-terrorism range from direct disruptions in food supply to significant health, economic, and social consequences, all of which threaten the human right to food.
The Impacts of Agro-Terrorism on the Right to Food
Agriculture is the primary source of food products, which is why agro-terrorism threats are predominantly directed at food. Such threats can have devastating consequences, as food-related risks are of utmost concern to the population. Food terrorism refers to the act or threat of deliberately contaminating food intended for human consumption with chemical, biological, or radiological agents to cause injury or death to civilians and/or disrupt social, economic, or political stability. Terrorists can attack our food supply at various stages along the food chain, targeting livestock and crops during production, harvesting, storage, or transportation (this is known as agricultural or biological agro-terrorism). They can also target processed foods during manufacturing, processing, storage, transportation, distribution, or serving (this is referred to as terrorism targeting processed foods).[27]
Risks of Agro-Terrorist Acts on Food Security
Terrorist attacks can lead to widespread destruction of crops, resulting in reduced food production and threatening the essential food supply. With declining food supplies, food prices can rise significantly, making it inaccessible to the most vulnerable populations and increasing the risk of hunger and malnutrition. Such acts also erode trust between consumers and farmers, potentially affecting market behavior, causing price fluctuations, and leading to inefficient storage strategies.
The 1996 World Food Summit, through the Rome Declaration on World Food Security and the *World Food Summit Plan of Action*, acknowledged the need to develop coordinated efforts to ensure food security at individual, family, national, regional, and global levels. However, the tragic events of September 11, 2001, in New York fundamentally changed the way the world views the risks associated with the deliberate contamination of food supplies. Many countries’ agriculture and food processing and distribution systems have become targets for biological terrorism. A terrorist attack on food supplies can have serious public health and economic consequences, eroding public trust in the safety of the food consumed. Therefore, the term “food security” has expanded to include the protection of food from biological and chemical attacks.[28]
Agriculture is a critical national infrastructure, serving as the driver of food availability and safety in any country—both of which are central to food security. There are five potential targets for agricultural biological terrorism: field crops, livestock, food products during processing or distribution, food products ready for wholesale or retail markets, agricultural facilities such as processing plants, storage facilities, wholesale and retail outlets, transportation infrastructure, and research laboratories.[29]
Counter-crop warfare, which involves the use of biological agents and herbicides, can lead to devastating famines, severe malnutrition, the collapse of agricultural-based economies, and food insecurity. There are documented cases of using potato late blight, anthrax, yellow and black wheat rust, and insect infestations such as the Colorado potato beetle, rape seed weevil, and corn borer during the First and Second World Wars. Similarly, substances were widely used in the Vietnam War as counter-crop agents.[30]
Food insecurity can also be considered a hidden form of economic biological warfare. Human health, food security, and environmental management are continuously threatened on both regional and global levels through the deliberate contamination of food with herbicides, pesticides, or heavy metal residues. Emerging and new plant diseases also affect food security and agricultural sustainability, exacerbating malnutrition and increasing human vulnerability to emerging diseases. The deliberate release of harmful pathogens, which can kill cash crops and destroy enemy reserves, is a potent weapon for biological warfare and agro-terrorism.[31] Agro-terrorism can also be perpetrated through imported food products, increasing the risk of introducing foodborne infectious agents.[32]