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გირაოს უზრუნველყოფის მიზნით პატიმრობის გამოყენების პრობლემა სისხლის სამართლის პროცესში
Get PDFThere is a provision in the criminal procedural legislation that creates a danger of covert violation of the basic human right – freedom. This threat arises at the first presentation session against the detained accused, when the court assigns the accused another, lighter, restraining measure instead of imprisonment. Despite the courts decision, the defendant is not immediately released from the courtroom. According to the Code of Criminal Procedure, at this time there is the use of imprisonment for the purpose of providing bail, i.e. "custodial bail". The courts decision to release the person on bail is enforced later, after the provision of the law has been fulfilled. In particular, the arrested accused is obliged to pay a certain amount of money as bail, in order to enforce the decision against him. As a result, the determining factor for the accuseds release is not the court decision, but his solvency. In case of non-payment of the amount, he remains in prison, which leads to an unjustified violation of the presumption of freedom. Making a decision on release by the court is of a formal nature, thus creating a practice of low protection of human freedom, incompatible with international standards. As a result of such an approach, the accused on bail is unjustifiably kept in prolonged detention and, moreover, he is deprived of the opportunity to appeal the said treatment
International Legal Basis For The Right To Defense In The Cyber Era
Get PDFAgainst the background of the growing development of information and communication technologies and the digital transformation of various fields, it has become possible to produce war using digital tools. Today a cyberattack can cause similar or more damage than a conventional operation. This, in turn, changes the traditional perception of armed attack and creates the possibility to say that cyberattacks may significantly harm the countrys defense capabilities, and security, and impede the development of the society and state. Illegal access to computer networks could cause substantial damage to the functions of the critical information system, the protection of which is directly related to the vital interests of the state. This fact leads to a new understanding of the international legal basis of the right to defense. In particular, the purpose of the article is to analyze whether a cyberattack is the international legal basis that enables a state to exercise the right of defense and protect its sovereign interests.
Keywords: Cyberattack, Defense, State, and Non-state Actors
Introduction
The current international legal norms do not correspond to the reality created by the digital world, because the basic documents of modern international law were adopted in the last century. Consequently, the non-digital age could not foresee the needs of the digital age. Before international actors can agree on the need to develop an international digital regime at the global level, it is necessary to analyze issues related to the response of the state to cyberattacks based on the interpretation of existing international norms.
Unfortunately, states become targets of cyberattacks regularly, and due to the nature of cyberspace, it is difficult to promptly identify an adversary, making it difficult to protect the country\u27s interests in a timely and effective manner. Furthermore, one state can hire a group of hackers against another state and cause significant damage without crossing the border and carrying out a conventional operation.
Even though there is no international legally binding document to define and regulate cyberattacks at both global and regional levels, Tallinn Manuals were published in 2013 and 2017 with the support of NATO, which provide a reinterpretation of existing binding international norms regarding cyber issues. According to Rule 30 of the document, “A cyberattack is a cyber operation, whether offensive or defensive, that is reasonably expected to cause injury or death to persons or damage or destruction to objects”.[1] Consequently, this means that a cyberattack can reach the threshold of an armed attack and this increases the likelihood that such an act could become the basis for a state to exercise its right of defense, which is governed by Article 51 of the Charter of the United Nations. Thus, the analysis of the international legal basis of the right to defense in the digital age requires both a reinterpretation of Article 51 and a clarification of the factual circumstances and criteria by which a cyberattack represents a legal basis to exercise the right of defense.
The reinterpretation of Article 51 of the Charter of the United Nations in the cyber era
Article 51 of the Charter of the United Nations defines the basis for exercising the right of self-defense. According to the article, a state has the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations until the Security Council has taken measures to maintain international peace.[2] Therefore, an armed attack represents a legal basis for using the right of self-defense. However, Article 51 does not determine the concept of an attack. It is necessary to define the term an armed attack.
In this regard, an armed attack should be understood as including not merely action by regular armed forces across an international border, but also the sending by or on behalf of a state of armed bands, groups, irregulars, or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to an actual armed attack conducted by regular forces.[3] The majority of scholars agree that an armed attack is an active attack that has already taken place, rather than the threat of such an attack.[4]
In the digital era information and communication technologies have changed the traditional understanding of warfare. In the light of the above, it is essential to explore when a cyberattack reaches the level of an armed attack and under which circumstances states can have the right to use individual or collective defense against a cyberattack as an armed attack.
In determining if a cyberattack has risen to the level of an armed attack, the instrument-based approach, the target-based approach, and the effects-based approach have emerged in this context.[5] The self-defense component of Article 51 of the Charter of the United Nations was drafted with an instrument-based approach.[6] Professor Michael Schmitt argues this choice by the drafters of the Charter of the United Nations to use an instrument-based approach is inappropriate for addressing self-defense claims against cyberattacks. Because armed attacks inherently include kinetic military force, and cyberattacks often utilize non-kinetic approaches, the instrument-based approach fails to encapsulate cyberattacks that do not look like armed attacks but have the same ultimate effect.[7] Instead, he argues an effects-based approach, though not the current norm of international law, would better address cyberattacks because it allows broader latitude for a state to respond in self-defense.[8]
Particularly, Professor Michael Schmitt argues that a cyberattack’s effects should be measured by reference to six factors: (1) Severity: the type and scale of the harm; (2) Immediacy: how quickly the harm materializes after the attack; (3) Directness: the length of the causal chain between the attack and the harm; (4) Invasiveness: the degree to which the attack penetrates the victim state’s territory; (5) Measurability: the degree to which the harm can be quantified; and (6) Presumptive legitimacy: the weight given to the fact that, in the field of cyber-activities as a whole, cyberattacks constituting an armed attack are the exception rather than the rule.[9]
In this regard, Rule 13 of the Tallinn Manual entitled “Self-Defense against Armed Attacks” states that “a state that is the target of a cyber operation that rises to the level of an armed attack may exercise its inherent right of self-defense. Whether a cyber operation constitutes an armed attack depends on its scale and effects” (Tallinn Manual, 2013).[10]
The Nicaragua case is significant in the context of the “scale and effects” model assessment. In the Nicaragua Judgment, the International Court of Justice initially identified the “scale and effects” criteria as those qualitative and quantitative elements that help differentiate an “armed attack” from “a mere frontier incident”.[11]
The harm caused by a cyber operation should be similar to the harm caused by conventional sea, land, or air forces. A cyberattack that does not result in serious casualties might not be qualified as a new form of attack that provides grounds for the application of Article 51 of the Charter of the United Nations.[12]
Operating cyberspace without borders increases the number of actors carrying out cyberattacks. From the international legal point of view, Article 51 of the Charter of the United Nations does not specify who can carry out an armed attack against a state. This does not exclude the possibility of an attack against a state by a non-state actor from another state. In this context, Professor Michael Schmitt highlights that future cyber operations will weaken the ICJ\u27s narrow interpretation of actors of armed attacks. For non-state actors, cyberspace is a domain where it is easier to acquire appropriate means for carrying out offensive operations.[13]
In view of the above, it is important to clarify some parameters of reinterpretation of Article 51 of the Charter of the United Nations. First, this article defines that an armed attack represents a legal ground for the victim state to use individual or collective defense mechanisms. Second, because of the destructive nature of cyberattacks, the interpretation of Article 51 of the Charter of the United Nations has been expanded to include cyberattacks as armed attacks. Particularly, the International Group of Experts agreed that “scale and effects” are qualitative and quantitative factors that would apply when determining if a cyber operation qualifies as the gravest form of use of force (armed attack).[14] According to Tallinn Manual 1.0 cyberattacks rise to the level of an armed attack if they cause injury or death to persons or damage or destruction to objects.[15] Third, due to the reinterpretation of the term an armed attack, the notion of a cyberattack should not be limited by the state actor. Particularly, such destructive actions can be carried out by both state and non-state actors.
Criteria for exercising the right of defense
According to the International Customary Law, defense measures should be proportional to the armed attack and necessary to respond to it.[16] The International Court of Justice reaffirmed the need to abide by criteria of proportionality and necessity while responding to an armed attack in its decision in 2003, in a case concerning Oil Platforms.[17] Therefore, this means that there are defined principles that should be protected by states in cases of exercising the right of defense. In view of the above, it is important to understand how these criteria can be used by states to respond to cyberattacks.
In addition to this, it should be mentioned that the third criterion is imminency. The third requirement “appears to impose a restrictive test in which the defensive force can only be used just as the attack is about to be launched”.[18]
As for the principle of necessity, to meet this criterion, the state should demonstrate that it used all peaceful means including diplomatic, economic, judicial, or other measures for deterring the cyberattack. However, the state was unable to achieve this goal. It had to use force against cyberattack because all non-forceful options were exhausted.
Proportionality is the fundamental component of the Law on the Use of Force.[19] Historically, it is part of the Just War Theory.[20] The proportionality limits any defensive action to that necessary to defeat an ongoing attack or to deter or preempt a future attack.[21]
Proportionality addresses the issue of how much force, including the use of cyber force, is permissible once force is deemed necessary. The criterion limits the scale, scope, duration, and intensity of the defensive response to that required to end the situation that has given rise to the right to act in self-defense.[22] It does not restrict the amount of force used to that employed in the armed attack since the level of force needed to successfully mount a defense is context-dependent; more force may be necessary, or less force may be sufficient, to repel the attack or defeat one that is imminent. In addition, there is no requirement that the defensive force is of the same nature as that constituting the armed attack. Therefore, a cyber use of force may be resorted to in response to a kinetic armed attack, and vice versa.[23]
The proportionality requirement should not be overstated. It may be that the originator of the cyber armed attack is relatively invulnerable to cyber operations. This would not preclude kinetic operations to compel the attacker to desist, although they must be scaled to that purpose.[24] Overall, the abidance of the criteria of self-defense can legitimize the use of cyber force if it is lawful under the exceptional cases of the use of force defined by the existing international legal norms.
The principle of collective self-defense under Article 5 of the North Atlantic Treaty
The right of collective defense authorizes state or multiple states to come to the assistance of another state that is the victim of an armed attack. This right, explicitly set forth in Article 51 of the Charter of the United Nations, reflects customary international law. When a state exercises collective self-defense on behalf of another state, it must do so within the scope of the other’s request and consent. In other words, the right to engage in collective self-defense is subject to the conditions and limitations set by the victim state. That state may, for instance, limit the assistance to non-kinetic measures or to passive rather than active cyber defenses.[25]
An example of a collective defense treaty is the North Atlantic Treaty. Under Article 5 of this document, NATO member countries agree that an armed attack against one or more of them shall be considered an attack against them all.[26] According to the Wales Summit Declaration: “a decision as to when a cyberattack would lead to the invocation of Article 5 would be taken by the North Atlantic Council on a case-by-case basis”.[27] This means that, on the one hand, international legal norms related to the exceptional cases of the use of force apply to cyberattacks. On the other hand, it is not determined in which cases Article 5 should be invoked for deterring cyberattacks, and it depends on factual circumstances that would convince the leaders of the need for a collective defense operation. In addition, the scope provided by Article 51 of the Charter of the United Nations and the International Customary Law should be taken into consideration in the case of using force.
In this context, it is important to analyze NATO’s other decision concerning cyberspace. At the Warsaw Summit the Allies: “recognize cyberspace as a domain of operations, in which, NATO must defend itself as effectively as it does in the air, on land, and at sea”.[28] Based on this clarification, it should be noted that: (1) NATO’s historical understanding of the core elements of collective defense has been changed. Historically, NATO focused on land, air, and naval defense capabilities. Because of the cyber threats, the Alliance should defend itself in cyberspace as effectively as it does in the air, on land, and at sea. (2) By recognizing cyberspace as an operational domain, the cyber defense will continue to be integrated into the Alliance’s operations and missions. NATO will focus on not only land, air, and naval defense capabilities, but also cyber defense capabilities. Currently, the Alliance has the best practice of how to improve cyber resilience through enhancing institutional cyber capacity and implementing multinational exercises, training, projects, and other activities.
Conclusion
Based on the reinterpretation of Article 51 of the Charter of the United Nations in the digital age, it should be noted that a state has the right to carry out a defensive operation not only in the event of a conventional military operation but also in the case of a cyberattack, if the latter with the consideration of quantitative and qualitative elements reaches the threshold of the most extreme form of use of force - armed attack. In particular, the exercise of the right of defense depends on the scale and effects of the cyberattack. The substantial damage caused by a cyberattack to the state\u27s defense capabilities, security, stability, economic development, and the normal functioning of society represents the legal basis for the country to use individual or collective defense mechanisms to defend its interests in a timely and effective manner.
In addition, the state must carry out a defensive operation against cyberattacks within the criteria developed by international customary law. In particular, the state must adhere to the principles of necessity, proportionality, and imminence.
In the context of collective defense, it should be noted that bilateral and especially multilateral agreements of mutual assistance help states overcome common challenges in cyberspace and strengthen cyber defense capabilities against offensive cyber operations carried out without crossing the border of the target state.
Not only state but also non-state actors have access to cyberspace. Furthermore, the latter can develop offensive means by using digital tools, making them easier to operate in cyberspace without crossing boundaries. Consequently, a cyber attack against a state may be carried out not only directly by another state, but also by a non-state actor. Such an explanation is consistent with Article 51 of the Charter of the United Nations, as it does not specify who may be the subject of an attack against a state. Therefore, it creates a legal ground for the broader interpretation of the actor of an armed attack. Particularly, states can carry out indirectly cyberattacks against other states by using special hackers’ groups established and sponsored by themselves. In such cases it is necessary to take into consideration the following criteria: (1) Cyberattacks should be conducted by a non-state actor under the support and sponsor of another state; (2) Cyberattacks should be directed from the sponsor country against the other state; (3) Cyberattacks should reach the sufficient gravity of the armed attack. Therefore, if a cyberattack carried out by a non-state actor meets these requirements, it could serve as a basis for individual or collective defense.
Finally, it can be said that digital technologies have led to the development of new types of attacks that can replace conventional operations and with the scope of their impacts and results, reach the threshold of an armed attack. This digital reality expands the key fields of defense policies of states, as with the consideration of the naval, land, and air components it becomes necessary to develop cyber defense capabilities to protect the sovereign interests of countries in cyberspace.
Bibliography
Chayes, A., (2015). “Rethinking Warfare: The Ambiguity of Cyber Attacks”, 6 Harvard National Security Journal;
Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. the United States of America), 1986;
Case Concerning Oil Platforms (the Islamic Republic of Iran v. the United States of America), ICJ, (2003). <http://www.icj-cij.org/docket/fi les/90/9745.pdf>
Charter of the United Nations, <http://www.update.un.org/en/documents/charter/intro.shtml>
Voitasec,, (2015). Applying International Humanitarian Law to Cyber-Attacks, 22 Lex ET Scientia International Journal;
Founding Treaty – the North Atlantic Treaty, (April 4, 1949). <https://www.nato.int/cps/en/natohq/topics_67656.htm>
Frederick H. Russel, (1975). The Just War in the Middle Ages;
Johnson, Turner., (1975). Ideology, Reason and the Limitation of War;
Gardam, J. Gail., (July 1, 1993). “Proportionality and Force in International Law”, American Journal of International Law;
Pipyros, K., Thraskias, Ch., Mitrou, L., Gritzalis, D., & Apostolopoulos, T., (2018). “A new strategy for improving cyber-attacks evaluation in the context of Tallinn Manual”, 74 Computers and Security;
Michael N. Schmitt, (2003). “Preemptive Strategies in International Law”, Michigan Journal of International Law;
Michael N. Schmitt, (Spring, 2014). “The Law of Cyber Warfare: Quo Vadis?”, 25 Stanford Law & Policy Review;
Hathaway, O. A., Crootof, R., Levitz, P., Nix, H., Nowlan, A., Perdue, W., & Spiegel, J. (2012). “The Law of Cyber-Attack”. 100 California Law Review;
Moore, S., (2013). “Cyber Attacks and the Beginnings of an International Cyber Treaty”, 39 The North Carolina Journal of International Law and Commercial Regulation;
Michael N. Schmitt., (2013). Tallinn Manual 1.0 on the International Law Applicable to Cyber Warfare, Cambridge University Press;
The Wales Summit Declaration issued by the Heads of State and Government participating in the meeting of the North Atlantic Council in Wales, (4-5 September 2014). <https://www.nato.int/cps/ic/natohq/official_texts_112964.htm>
The Warsaw Summit Communiqué issued by the Heads of State and Government participating in the meeting of the North Atlantic Council in Warsaw, (8-9 July 2016). <https://www.nato.int/cps/en/natohq/official_texts_133169.htm>
Dinstein, Y., (2005). “War, Aggression and Self-Defence”, Fourth Edition, Cambridge University Press.
Footnotes
[1]Michael N. Schmitt., (2013). Tallinn Manual 1.0 on the International Law Applicable to Cyber Warfare, Cambridge University Press, p. 106.
[2] Charter of the United Nations, <http://www.update.un.org/en/documents/charter/intro.shtml> [Last seen: 10.05.2022].
[3] Nicaragua v. the United States of America, (1986). Case Concerning Military and Paramilitary Activities in and against Nicaragua, p. 93.
[4] Dinstein, Y., (2005). “War, Aggression and Self-Defence”, Fourth Edition, Cambridge University Press, pp. 165-169.
[5] Moore, S., (2013). Cyber Attacks and the Beginnings of an International Cyber Treaty, 39 The North Carolina Journal of International Law and Commercial Regulation, p. 247.
[6] Id., at 248.
[7] Id.
[8] Id.
[9] Hathaway, O. A., Crootof, R., Levitz, P., Nix, H., Nowlan, A., Perdue, W., & Spiegel, J. (2012). The Law of Cyber-Attack. California Law Review, 100(4), p. 847.
[10] Pipyros, K., Thraskias, Ch., Mitrou, L., Gritzalis, D., & Apostolopoulos, T., (2018). “A new strategy for improving cyber-attacks evaluation in the context of Tallinn Manual”, 74 Computers and Security, p. 375.
[11] Id.
[12] Chayes, A., (2015). “Rethinking Warfare: The Ambiguity of Cyber Attacks”, 6 Harvard National Security Journal, p. 482.
[13] Michael N. Schmitt, (Spring, 2014). “The Law of Cyber Warfare: Quo Vadis
American federalism – the problem of the distribution of powers between the federation and the individual states
Get PDFThere are more than 200 sovereign states on the globe, and they all have unique characteristics. On the globe, no two states are the same. The idea of territoriality, which divides states into federal and unitary states, is one of the most significant characteristics that set them apart. One of the most powerful nations in the world, the United States of America continues to work hard to protect all that is important to its citizens while maintaining strong democratic principles. American history includes the creation of a federal system. Due to these factors, America is fascinating and challenging to comprehend and evaluate. The link between the core and the periphery is quite unclear. This article’s goal is to argue these ambiguous policies by bringing them to light. The federal and state powers are specifically listed in the United States Constitution. However, certain ambiguities make it hard to determine where the boundary between federal and state authorities resides. The topic of discussion in this essay is this troubling predicament. In the framework of the paper’s theme, the Supreme Court of America’s expertise, and its authority in the process of the separation of powers will be examined. Here, it should be highlighted that everything is up to interpretation, which will rely on the Supreme Court judge. A conclusion will be offered based on the work’s argument, outlining the author’s perspective.
Keywords: The US, Constitution, Federation, State
Introduction
Territorial organization may take many various, unique shapes around the world. Each state determines the necessary and historically appropriate geographical arrangements. The choice of territorial organization models is thought to play a role in the success of nations. The federal structure is the most intriguing of the several territorial arrangements. This kind of geographical organization obviously tries to decentralize authority and reinforce current local administrations. Federalism has a lengthy history as a type of territorial organization. Its significance to the globe is immense and unmatched.
American federalism has the longest history, and its fundamentals, benefits, and drawbacks have been widely explored by science. It should be mentioned that the particulars chosen for the paper\u27s topic are less established in the academic world. The paper\u27s objective is challenging yet intriguing. It is important to examine the complex and contentious problems of American federalism, both then and now. As you are aware, when we discuss the power of the federation and the different states in the United States of America, the issue of the separation of powers has always been and continues to exist. There are certain questions that have remained unanswered for 200 years. The article will concentrate on these difficulties as a result. The nine Supreme Court justices give the reader the sense that they are the primary controllers of the allocation of power in this context, which highlights the significance of the Federal Supreme Court of the United States of America\u27s competency and precedent judicial practice.
Federalism is one of the most sophisticated and intriguing systems of territorial arrangement that the US Constitution initially established. This article addresses the legislative powers of the United States\u27 federation and states. The article will focus on the nature and relevance of federalism, analyze the history of federalism in America, and discuss the actions of Presidents Roosevelt, Reagan, and Clinton in the context of the transfer of legal power from the federation to the states. The focus will be on the United States Constitution and the provisions in the Constitution that directly relate to the legislative powers delegated between the states and the Federation.
Based on the developed reasoning, it can be said that even 200 years after the founding of the United States, fundamental questions implicating federalism remain unsettled. Legislative powers that are redistributed between the states and the federation are still the subject of interpretation.
Federalism\u27s significance and its historical origins
Federalism is a complicated and multifaceted phenomenon that affects many facets of public life, including political, legal, economic, cultural, and foreign affairs.[1] There are several definitions of the term "federalism," which is taken from the Latin language and used in legal, political, and scientific literature.[2]
Federal states are those that have legally autonomous state formations and whose independence is only constrained by the rights of the entire federation, according to the scientific definition of federalism.[3]
In a federal system, there are greater options for disagreements to be settled legally, consistently, and through compromises. Many autonomous components of such a system have a tendency to control their interconnectedness independently of any outside authority. As a result, the federal system starts to operate independently. The fundamental tenet of federalism is that it provides citizens with genuine opportunity to manage their own affairs, join forces with others in accordance with their beliefs, and participate in the powers of the administrative, legislative, and judicial branches of government.
Power is spread vertically as well as horizontally under the federal territorial organization, and it is maximally decentralized and increasingly susceptible to citizen authority. It should be mentioned that in the framework of republican governance, the federal model is more frequent. However, there are exceptions in the shape of Belgium[4] and Malaysia,[5] where federalism exists under a monarchical style of governance.
The local constitution and legal system coexist alongside the federal constitution and legislation in most federal states. The United States of America,[6] Germany,[7] Austria,[8] and Switzerland[9] are examples of these types of federations. However, not all federal states provide for the right of an entity to have its own constitution. Such countries are India,[10] Pakistan,[11] Nigeria,[12] etc.
One of the most pressing challenges in the Federal Territorial Organization is the matter of legislative competence separation between the Federal Center and the states.[13] Many attempts in the literature and in legislative practice to define broad criteria for the allocation of legislative powers have failed.[14]
In terms of politics, the United States of America was founded as the first federal state in 1787. The United States of America\u27s geographic location, awareness of cultural unity, and foreign security interests were undoubtedly the cornerstones of the union built on federal principles, which were based on the Constitution and had to guarantee the realization of the idea of freedom and unlimited popular sovereignty, political order, protection of property, and the continuation of the nation.
The historical stages of American federalism\u27s formation
The thirteen colonies declared their independence and freedom prior to the Revolutionary War. The newly established states understood that collaboration was necessary for them to operate well on the new national stage and to enter the global arena both during hostilities and after the war.
The Articles of Confederation, America\u27s first attempt to formalize federalism, were a failure. Since it was replaced by the Constitution of 1787, this durable document, and the system of government it established have withstood the shaky beginnings of the Republic, a Civil War, severe economic downturns, America\u27s involvement in two World Wars, and 227 years of countless internal and external challenges.
The centralist concept of federalism was established in accordance with the Constitution of the USA. Alexis de Tocqueville commented that “in America it may be said that the township was organized before the county, the county before the state, the state before the union.”[15] The Framers split the atom of sovereignty. The genius of their idea was that American citizens would have two political capacities, one state and one federal, each protected from incursion by the other.[16]
The events of 1862-1865 in the US resulted in an expansion in the federal government\u27s legislative authority.[17] Under President Roosevelt, a major reorganization of the US federal system took place:[18] The federal financing program[19], which was largely focused on developing a new legal framework in the social sector, increased the central government\u27s influence.[20]
Reagan\u27s approach was to increase the lobbying power of states and local governments. During Reagan\u27s presidency, several federal initiatives relating to legislation implementation and development were moved to state legislatures.[21] Reagan\u27s reforms were a failure. The defeat of the reform was further supported by the US Congress\u27s refusal to decentralize the federal government.[22]
Between 1980 to 1990, the federation limited the states\u27 legislative authority.[23] In 1994, a new majority in Congress assured its voters that the unfunded mandates would be phased out. In 1995, President Clinton signed the Unfunded Mandate Reform Act, which he regarded as a historic step in restoring people\u27s control at the municipal and state levels.[24]
Despite several attempts today, during both the Trump and Biden administrations, the legislative powers that states may have over the federation remain ambiguous, with the US Federal Supreme Court playing a significant part in this process.[25]
The United States of America\u27s Constitution and federalism
The Constitutional Convention met in Philadelphia between May and September of 1787 to discuss and attempt to solve the shortcomings of the Articles of Confederation.
Only the United States Congress is permitted under the United States Constitution to organize and maintain an army, to form and maintain a navy, and to adopt regulations for the management and organization of the land and naval forces.[26] Even if the conduct is strictly intrastate, the Commerce Clause can and has been interpreted to empower Congress to control any actions that together have an impact on a national market. The US Congress has the authority to enact a rule of conscription for police duty to maintain US law and prevent uprisings.[27]
The entry specified in Article 1 (8) of the Constitution is controversial since functions that can freely be part of the powers of the States are included in the list, which comes under the jurisdiction of Congress. Such controversies about the legislature\u27s separation of powers can be beneficial to the federal government and Congress.
The commerce clause, which grants Congress the authority to regulate interstate trade, is also contentious.[28] The term "commerce" can be interpreted narrowly to refer to a group of activities different from manufacturing, farming, or mining, for example, barring the federal government from regulating these and other related activity under the Commerce Clause. This limited view is in line with the Supreme Court\u27s understanding during the first century following ratification as well as the most recent research on the Clause\u27s original meaning.[29] This sort of record might be viewed as forbidding states from developing and adopting legislation in sectors such as manufacturing, farming, and mining.[30]
The Constitution’s Taxation Clause, which provides Congress with the power to tax and spend to “provide for the . . . general Welfare of the United States,”[31] similarly has been “controversial since it first saw the light of day.”[32] Does it provide Congress the ability to control through spending? Does this term imply that Congress may only use funds for purposes that are in line with other authorities that have been granted to it, or for any worthwhile cause? The responses to these questions have significantly affected the balance of federal and state authority, and they have been the topic of acrimonious dispute.
It should also be emphasized that the Necessary and Proper Clause, which empowers Congress to "make all laws necessary and appropriate for carrying out execution," is ambiguous.[33] Such an understanding of Congress\u27s jurisdiction grants the federal legislature broad flexibility.[34]
The Constitution of the United States of America clearly prohibits states from using their constitutional powers. Without the consent of Congress, no state can join a union or confederation, tax the export or import of products, retain soldiers or warships during peacetime, enter into any treaty or agreement with another state or foreign state, or wage war. Without a doubt, such a constitutional restriction is a crucial guarantee of the federal state\u27s geographical unity.[35]
The most important safeguard of a federal state\u27s territorial integrity is the general principle that federal law takes precedence over state law. According to the United States Constitution, the federal constitution and laws, as well as all treaties entered or to be entered into by the United States, are the supreme laws of the country, and every state judge is bound by them, even if state constitution and laws are found to be in opposition to these activities.[36]
After the Civil War, "Reconstruction" began across the nation. There was a great deal of disagreement in the nation regarding how to handle the former Confederate states, including whether the fundamental relationship between the federal and state governments that predated the War should be restored or whether fundamental changes to that relationship were required to stop the recurrence of the causes of the conflict.
In the late nineteenth and early twentieth centuries, rapid industrialization caused a number of economic and social challenges, which in turn led to a number of governmental reforms. A "increasing sense that government at all levels needed to intervene in the socioeconomic order to implement antitrust and regulatory laws, labor and welfare measures, and tax reform" has been said to define this time period.[37] A number of constitutional amendments were ratified by the country, including the Sixteenth, which authorized the imposition of direct federal income taxes, and the Seventeenth, which allowed for the direct election of senators by the people of each state, as opposed to through their state legislatures. Federal authority kept growing and solidifying.
The first constitutional amendment of the Progressive Era is regarded as the Sixteenth Amendment, which was ratified on February 3, 1913. The Supreme Court overturned a federal income tax in Pollock v. Farmers\u27 Loan & Trust Company in 1895 as an unconstitutional direct tax because it was not distributed to the states based on their different populations. This decision was reversed by the Sixteenth Amendment.[38] Some opponents viewed this as a "power grab" by the federal government aimed at further weakening the states: The 1921 Sheppard Towner Act, which approved funding for child and maternity care and is referred to as the "first venture of the federal government into social security legislation," was one of the first pieces of legislation the federal government used its newfound power to pass after the Sixteenth Amendment.[39]
On May 31, 1913, the Seventeenth Amendment was ratified, allowing for the direct election of senators by state citizens as opposed to state legislatures. By allowing direct state control over federal government activities, this nullified one of the states\u27 basic, essential structural safeguards.
The Supreme Court of the United States\u27 precedent-setting practice
The federal courts swiftly assumed the role of establishing the division of powers between the federal and state governments. The court stated in the case of Fletcher v. Peck[40] that Georgia\u27s legislation could not invalidate a contract since the federal constitution did not allow bills of attainder or ex post facto statutes. Chief Justice John Marshall stated that the court had no intention of "disrespecting Georgia legislation or deeds." Regardless of this rationale, it was established that the Supreme Court has the authority to overturn an unlawful state statute.[41]
In Martin v. Hunter\u27s Lessee, the Supreme Court decided that it might also supersede state courts. In Fairfax\u27s Devisee v. Hunter\u27s Lessee, the Supreme Court had determined four years prior that Virginia was prohibited from seizing a loyalist\u27s property by the Jay Treaty between the United States and Great Britain. By declaring: "The court is united in view, that the appellate jurisdiction of the highest court of the United States does not extend to this court," the Virginia Supreme Court declared that it was not bound by the Supreme Court\u27s decision. In Martin, the Supreme Court stressed once more that it "walked cautiously" while examining decisions made by state courts. The high regard in which the court whose decisions we are asked to evaluate is held, as well as the respect we have for its knowledge and skill, greatly increase the difficulties of the work that has uninvitedly been placed upon us. The Supreme Court once more struck a balance between this reverence and deference and the acknowledgement that "the United States Constitution was ordained and established, not by the states in their sovereign capacities, but emphatically, as the preamble of the constitution declares, by \u27the people of the United States\u27." According to the Supreme Court\u27s ruling, it has appellate authority over constitutional issues in state courts. The Supreme Court had ruled that it might overturn state courts and declare state statutes that violate the Constitution unlawful.[42]
The United States was the first country to establish a constitutional monitoring institute in the federal state.[43] The United States Supreme Court declared the first state law unlawful in 1796.[44] The following actions have been found illegal: a statute that requires teachers to swear an oath;[45] A law prohibiting public demonstrations near foreign embassies;[46] A law banning the burning of the American flag.[47] The most contentious judgment of the United States Supreme Court was the revocation of a state statute that prohibited abortion.[48]
In relation with secession, an intriguing case has been recorded in the United States. The United States Supreme Court clarified in the decision "Texas v. White"[49] that states have an obligation to obey all federal laws until the Federal Supreme Court verifies a breach of the federal government\u27s authority. The secession of the southern states is declared null and void from the beginning. [50]
One of the most important decisions involving congressional authority was heard by the Supreme Court in 1824. Competing steamboat ferry operators with boats that sailed in the seas between New York and New Jersey were involved in the Gibbons v. Ogden case. Ogden requested an injunction to prevent Gibbons from using the same route, and the State of New York granted him an exclusive license allowing him to operate there. In retaliation, Gibbons claimed that a 1793 Congress legislation governing coastal commerce gave him the right to compete with Ogden. He was unsuccessful in New York\u27s trial and appellate courts, but the Supreme Court ruled in his favor. The Trade Clause, which states that "Congress shall have power to regulate commerce among the several States," was the foundation of the Court\u27s ruling in favor of Gibbons. The Court determined that the term "commerce" included navigation between the states and that the preposition "among" following the phrase "the several States" indicated that Congress\u27s power to regulate commerce "did not stop at the external boundary line of each State but may be introduced into the interior." Due to the contradictory act of Congress and the Supremacy Clause of the Constitution, the New York legislation granting Ogden an exclusive license constituted a "nullity." By acknowledging Congress\u27s extensive jurisdiction to control business conduct, Gibbons dramatically increased the federal government\u27s scope of authority.[51]
Years after the Civil War, the Supreme Court declared that the First Amendment right to free assembly and the Second Amendment right to keep and bear weapons did not apply to states. [52] The Supreme Court acknowledged in 2010 that the Second Amendment applies to states via the Fourteenth Amendment, limiting governments\u27 authority to prohibit gun ownership.[53]
In one case [54] the Court explained that congress might control isolated economic activity since there is a "close and vital link" between states for commerce.[55] [56] It should be emphasized that, according to the court\u27s explanation, the Congress was granted the ability to penetrate the state\u27s legislative power and regulate the areas on which the state has the power to adopt a law.
The separation of legislative powers between the states and the federal government remains an issue, as the Obergefell v. Hodges decision on same-sex marriage demonstrates.[57] It is apparent that rules governing domestic ties between husband and wife, parent and child, and other topics fall under the jurisdiction of individual states.[58] Nevertheless, the decisions of the Supreme Court reduce the powers of the state legislature. Loving v. Virginia[59] is another good example of this, in which the Supreme Court used the Fourteenth Amendment to remove a Virginia law on interracial marriage. The Court used the Fourteenth Amendment in Kirchberg v. Feenstra[60] to overturn state legislation that made the husband "head and master" of the family.
The Supremacy Clause\u27s most recent interpretation demo
Africa in the Eye of the Storm: Navigating Law and Structural Inequality in Global Environmental Relations
Get PDFEnvironmental racism is a phenomenon defined by an unfair allocation of environmental risks. It is a systematic violation of the right to a safe and healthy environment. Environmental racism takes root in the colonial prioritization of race in the distribution of social and environmental benefits. The environment should not be treated like an infinite garbage can. The economic polarity of the world will always have some people on the receiving end of an ordeal. In contradistinction to the ideal, in Africa, environmental justice is a concept of privilege. The costs of industrialization such as environmental degradation and the generation of toxic waste have brought about imbalances in the environment. These imbalances have caused variant problems, both short term and long term This article discussed environmental racism and what it means for the realization of environmental justice. This article further compared the successes of the Bamako Convention to the Basel Convention in the light of the realities of the dumping of hazardous waste in Africa and the conduct of activities injurious to the environment. It further examined the activities of multinational companies in Africa and how weak regulatory environments aid the impunity of environmental pollution.
Keywords: Environmental Racism, Africa, E-waste, Environmental Rule of Law
Introduction
Environmental racism is the type of structural racism that causes people of color to be disproportionately affected by policies and practices that necessitate them to live close to places with toxic waste like landfills, sewage works, mines, power stations and other such locations that poses a risk to their health or safety.[1] As Weintraub stated, environmental racism is the deliberate placement of toxic waste sites, landfills, incinerators and industries that pollute the environment in communities of people of color.[2] In a broader context, environmental racism poses a significant risk to the poorest countries in the world, most of which are in Africa.[3] Besides the inefficient environmental policymaking in many African countries, the flow of plastics to Africa is contributing to the buildup of an immense environmental crisis. There has been a consistent dumping of electronic products in Africa, this alone accounts for a significant share of the environmental risk that Africa is exposed to.[4]
In the wake of environmental racism, indigenous populations are often at risk.[5] This is because the gentrification of indigenous land can inspire the need for resettlement. Environmental racism is a racial injustice that is often not really considered in the severity of its impact on the environment of vulnerable racial communities.[6] Africa is a region that is trapped in the toxicity of environmental racism. The history of environmental racism in Africa dates back to colonialism, when the exploitation of the African environment led to the creation of systems that currently burden the African environment and has led to the displacement of indigenous communities.[7] In examining environmental racism and its impact on Africa, there is the question whether toxic waste dumping in Africa is based on a calculation of cost benefit analysis or on environmental racism. Cost benefit analysis is the systematic process through which businesses explore decisions to take and which to forego. In cost benefit analysis, the expected rewards of an action are weighed against the costs.[8] This determines whether the action would be taken. The use of cost benefit analysis in the evaluation of environmental regulations especially in developed countries like the US has been criticized to lack an ethical foundation, and therefore not the right fit for the problems it was hoped it would resolve since environmental regulation is about moral issues.[9] The argument against the ethical value of cost benefit analysis in environmental protection was further treated in Hsu’s article, which captured debates on the relevance of cost benefit analysis in environmental law.
One of the most prominent scholars, amongst critics of the economic approach to measuring impact of environmental law and policy, Lisa Heinzerling, is known for her intense engagement of the debate where through a confrontational approach, she has held ground on the ethical indignation of environmental issues.[10] Cost benefit analysis have rightly been considered amoral, until an environmental outcome defines its use. An instance is when oil industry players decide to use international politics to influence environmental regulation on plastics in Kenya, where it is obvious that economically for them, it’s more profitable to find a ready market for their environmentally harmful goods than to have to be mindful of its impact on the environment.[11] This is despite Kenya’s struggle with the management of plastic waste. When cost benefit analysis is used to calculate the benefits of toxic waste dumping in countries with weak environmental protection mechanisms, and there is a choice to protect economic interests above environmental wellbeing of communities concerned, then cost benefit analysis stop appearing in its amoral sartorial, but adopt an ethical pose.
The History of Environmental Racism
Environmental racism emerged from the events that defined the mission of the environmental justice movement in the America of the 1980s. Events such as the hazardous mass of the Warren Country waste disputes in North Carolina and the ‘racially distributed spread of petrochemical pollution in “Cancer Alley”, Louisiana’ were evidence of the contemporary problem that environmental racism is. The idea that detritus is a social process, conceptually frames the historical essence in which environmental racism developed in. It especially captures the social problems and constructions that have long defined environmental relations. The interpretations of race and waste and their influences on each other reach to the foundations of American nationhood.[12] Environmental racism was essentially an American idea, since it was discovered that waste management policies had a racist undertone. Environmental racism is a problem that can be contextualized and it is often judged based on the effect that environmental risks have on a racial demographic, stemming from the actions of the privileged race.
The existence of racial privilege has long been the foundation for environmental racism. In the African context, the history of environmental racism is the history of colonial exploitation. White argued that colonialism wreaks violence on the human relationship with the environment. He further showed how environmental racism is connected with colonialism by creating a link on the negative impact of colonialism on the lives of indigenous people and their environment.[13] The Scramble for Africa in 1884 to 1885 set the pace for the environmental exploitation that was to define the power balance of environmental relations and the framing of Africa as the dumping ground in today’s environmental politics. The colonial power claims that made the Berlin Conference of 1884-85 necessary were so strong that the mediative purpose of the conference was defeated. The colonial power claims was one of the major factors that brought about the First World War.[14] The Scramble for Africa was a scramble for resources.[15] It was a commodification of the African environment without regard for its systemic implications. Weingaf pointed out that Africa had long suffered from astonishing levels of inequality, poverty and oppression since the end of colonialism. He argued that tying the cause of underdevelopment and poverty to corruption and governance is falling far from the real cause of Africa’s problems which is the frustration of industrial development in the stifling atmosphere that was created by colonialism.[16] Environmental racism has evolved with colonialism. Today, colonialism far from being a subject of occupation has thrived in an international system of environmental regulation and with it, environmental racism is perpetuated not just with the way it gives more representation to Western interests, but also in how it controls the narratives from Africa.[17]
Gerboise Bleue and the Nuclear Precedence
When the Gerboise Bleue happened, it marked as one of the many expressions of environmental racism in a region that is often the target of exploitative actions by the developed world. The Gerboise Bleue was a French nuclear testing operation that started on the 13th of February 1960. The name had meant ‘blue jerboa’ after the blue part of the French tricolor flag and a small Saharan rodent. The nuclear bomb had a blast capacity of 70 kilotons. More powerful than the bomb the United States had dropped after the Second World War in Hiroshima. The first of the nuclear bombs that France had tested was in Tanezrouft area of the Sahara Desert. Over the span of two years, France had tested four nuclear bombs above Tanezrouft. During these two years, Algeria which was a country close to the test site was under the colonial occupation of France. When Algeria got independence in 1962, still reeling from a long-term revolutionary war, France had kept a military presence in the area and had tested 13 nuclear bombs in a facility that was hidden underneath the Hoggar Mountains, 400 miles from Reggane in the Sahara. Upon leaving, the French had buried hazardous materials from the nuclear tests in the areas it had tested.
Some Algerians who did not know that the buried materials were contaminated started to harvest the materials for their useful parts. After that time, the inhabitants of Reggane had recorded the prevalence of medical problems such as babies that were born with atrophied limbs; stomach cancer, skin cancer and liver cancer; and there also were reports of temporary blindness among those that saw the vicious flash of light that lit up the Maghreb in the early morning hours. The French government’s response to the criticism that attended the Gerboise Bleue was about its recklessness in its management of the nuclear operation. In 2014, the French newspaper Le Parisien had revisited the Gerboise Bleue operation by publishing an article titled ‘choc sur la bombe A en Algeria,’ (the shocking document regarding the A-bomb in Algeria. The article which had been written by Sébastien Ramnoux exposed information which contradicted what the French government had earlier claimed. Along with it was a copy of a French military map from the 1960s that showed the test area of the initial explosion at Reggane in the Sahara with a distance of 1,300 kilometres in the southwest of the Algerian capital, Algiers. The map further showed the spread of the operation’s aftereffects from the test area to different parts of Africa and Southern Europe. The radiation had been more intense and had reached farther places than the French government had admitted before 2014.[18] The Gerboise Bleue emphasised the environmental impact of colonialism and its tendency of environmental racism.[19] The colonial experience of Africa and the imbalance in the environmental relations it created, justified a dangerous precedence like the Gerboise Bleue. The Gerboise Bleue, as it should, has become a reference point for the complex evolution of environmental racism and its structural violence against Africa.
The Scourge of E-Waste
The application of environmental racism on an international level in the environmental discourse often touches on the tendency of waste brokers in developed countries in resorting to the cheapest way of disposing toxic waste so as to get around environmental regulations in their countries. Notorious cases on toxic waste management and the research on the health and environmental impact have made the global waste trade a popular environmental and social justice matter.[20] For Africa, the history of the toxic waste trade has come a long way. In an article written by James Brook in 1988, he told the story of toxic waste dumping in West Africa. In the 1980s, the safety laws in Europe and the United States had driven up the costs of toxic waste disposal and it made waste brokers consider offshore options that were cheaper, and West Arica was chosen.
The choice of West Africa was because there is a high level of poverty amongst some West African countries. Government officials in Guinea Bissau had signed a contract that was to last for five years for 15 million tons of toxic wastes from European tanneries and pharmaceutical companies to be buried in their country. The contract was to yield monetary profit of 120 million dollars annually, which was a little less than the gross national product of 150 million dollars. In Congo too, the government also signed a contract for the storage of 1 million tons of toxic waste from northern Europe for the price of 84 million dollars.[21] Although the world has changed a lot since the 1980s, environmental racism has only become more sophisticated and subtle in its perpetration. Environmental racism in the African context is the unfair practices that characterise environmental relations with wealthier countries of Europe and America. In the examining environmental racism in Africa, the toxic waste trade in six countries of Africa would be considered, namely; Nigeria, Kenya, Ghana and Tanzania. Historically, Nigeria has had terrible experiences with toxic waste dumping and as a result of that it has a harsh legislative posture towards the transboundary movement of e-waste, which included a ban on transboundary movement e-waste, but enforcement of the ban has failed.[22] The trade in electronic waste (e-waste) is significant in West Africa and Nigeria is one of the major destinations.[23] The conveyance of e-waste to Nigeria happens through the shipping of containers to Nigeria. According to Olaiya, they are often concealed behind the functional goods, kept inside a car or they are falsely labelled as personal items.[24]
Amechi and Oni have argued that the making of a law to ban the transboundary movement of e-waste is a law that does not consider the socioeconomic realities of Nigeria and also fails to acknowledge the weak regulatory environment in which it was made. Their argument dismisses the socio-legal value of the law as it does not fit into the working dynamics of its regulatory sphere. A significant number of used electrical and electronic equipment that is shipped into Nigeria are ‘dead on arrival.’[25] Research has shown that there are environmental effects of e-waste recycling.[26] Toxic materials like cadmium lead, copper, mercury and polychlorinated biphenyl have been found in the soil, air and water around e-waste informal processing sites.[27] In Ghana’s Odaw River in Agbogbloshie waste dump too, there have been significant levels of copper, cadmium, lead, iron, chromium, and nickel.[28] At the Agbogbloshie dump, it was discovered that the workers at an e-waste recycling facility had a high level of blood lead, cadmium, chromium, and urinary nickel more than non-e-waste workers.[29] The impact of e-waste in Ghana is underemphasized as the country makes about 105 to 268 million dollars per annum from materials that were gotten from e-waste.[30] It also provides jobs for around 200,000 people[31] and forms what would be considered an extra source of foreign exchange. The long term effect is however not considered.
The trade of e-waste in Nigeria and Ghana is further motivated by the rising costs of new electronic equipment, and the exportation of old and used Electronic and Electrical Equipment (EEE) to developing countries like Nigeria and Ghana is on the basis that there is the lack of capacity to purchase new equipment while there is need to keep up with the technological trend.[32] The toxicity of the e-waste trade is a highly significant evident of the changing faces of environmental racism, especially against the most vulnerable people in Africa. The exploitation of their socioeconomic vulnerability touches on the fundamental question about the right to a healthy environment and the protection of such right as it is contained in Article 4 of the African Charter on Human and People’s Rights (Banjul Charter). Article 24 provides that ‘All people shall have the right to a general satisfactory environment favourable to their development.’[33] A ‘general satisfactory environment’ would mean an environment healthy and safe by global standards. However the scale of balances in global trade has seen that the African environment and its sustainable development are threatened by the toxicity of e-waste trade and governmental incapacity in addressing its importation.
Hazardous Waste Management in Africa
The danger of environmental racism in Africa is that it is costly both financially and environmentally. This is because hazardous waste management is expensive and complex to handle. Akpan and Olukanni have found that the improper management of hazardous waste in Africa has led to the proliferation of health challenges such as birth deficiencies and cancers.[34] In Nigeria, management of hazardous waste is unwieldy as its continued importation over several decades has proliferated in tons of toxic material that threatens the environment, economic growth, development and the enjoyment of human rights.[35] The disposal of hazardous waste is expensive as it requires special procedures and technical expertise to execute. Since e-waste is often left to informal waste management and recycling processes that employ crude techniques, in the absence of recycling infrastructure and competent waste management system, e-waste has now become a leading environmental pollutant and a threat to human health in Nigeria.[36]
The lack of competence in the management of hazardous waste is not only a Nigerian problem, in Kenya, Ghana and Tanzania too, e-waste management goes through informal processes that make it a dangerous environmental problem. Asides the governmental indifference to hazardous waste management in Nigeria, Kenya, Ghana and Tanzania, its management is further pressured by environmental racism. In other parts of the world, there are stories that show how environmental racism puts people at risk when it is evident that they have nothing to alleviate the risk. Bullard’s study in 2007, found that race was more likely to predispose a population to environmental pollution than socioeconomic status.[37] In the case of Africa, the perception of the region, its people and its relevance, in the developed world has often influenced its environmental relations. The extreme faith in the quality of goods from developed countries like the United States and the UK often validate the market for foreign-used goods. However Azuka has argued that the preference for used electronic goods is motivated by economic forces.[38] Although used electronic goods can be cheap, there is no evidence that shows that the price differences between the new and the old is significant. One of the most problematic issues with e-waste management in Africa is that it is processed by people who have little knowledge about its dangers to the health and the environment, hence toxic components often find their way into places where they can easily cause havoc.
Africa’s Plight in a Near Environmental Apocalypse
Environmental racism presents challenges to Africa, especially when combined with the effects of climate change and poverty. Africa’s most significant challenge in legally addressing environmental pollution from environmental racism is poverty. Africa’s delicate situation is accentuated by the fact that Africa approached the 21st century as the poorest region.[39] Africa’s plight is further made critical as it has been established that poverty contributes to environmental damage. Environmental pollution threatens human health in many African countries. Pona and others found that environmentally-linked health problems are a major concern in Nigeria as there are many sources of environmental pollution such as air and water pollution, oil spillage, deforestation, desertification, erosion, and flooding resulting from a lack of good drainage system.[40] Most of the significant causes of death in Nigeria have been linked to environmental risk factors. Over the years, lower respiratory infection from air pollution in Nigeria has emerged from its fourth position in 2007 to be at the topmost rung of ranked causes of death in 2017.[41] Cobbinah and others have shown that in Ghana, the situation is no less severe, with increasing poverty predisposing the population to environmental pollution.[42] According to Srivastava and Pawlowska, Accra’s main source air pollution is the burning of e-waste at the Agbogbloshie dumpsite with carcinogenic materials dispersed in the air and toxic metals spread in the waterways and oceans. The exposure to this dangerous materials causes health problems that costs millions of dollars in treatment.[43] The problem of environmental pollution is however compounded by the poor health infrastructure, especially in the countries most affected.
Minja of the National Bureau of Statistics in Tanzania, showed that Tanzania is a major consumer of used electronic goods that quickly become e-waste. She further pointed out that the country has a poor management system for e-waste.[44] Like in Nigeria and Ghana, there is no effective implementation of regulations in Tanzania. The increasing demand for such obsolete electronic goods poses a serious long term problem since there is hardly a viable plan to control its inflow into Tanzania.[45] Although there are recyclable parts in such electronic goods, yet the unusable parts contain toxic materials that are often left in streets and
Several Legal Peculiarities of the Regulation of Business Environment in Germany
Get PDFBusiness law includes contractual, labor, corporate, tax and other relations. However, the purpose of the study is to highlight and analyze only few interesting issues since it is physically impossible to cover all its aspects within the framework of one article. First of all, it is necessary to determine the legal basis for doing business in Germany and then – the features of starting and doing business. Therefore, this paper serves as a concise methodological guide to the regulation of the business environment in Germany. In this sense, the study examines the legal forms of doing business recognized in Germany, the legal possibilities for establishing various contractual or labor relations with contractors, as well as the grounds for corporate or private liability in case of violation of the rules. Model of corporate governance, external liability and internal corporate governance issues are of particular interest in Germany. The study confirms that the basis for regulation of various aspects of doing business in Germany is specific. The principle of direct corporate liability to creditors is common in Germany but the principle of piercing the corporate veil is allowed if the relevant prerequisites are present. However, business contracts in Germany are based on a narrow approach of contract terms regulation compared to the United States. Hearing of cases by specialized judges in Germany ensures a better and fairer judicial system in labor disputes.
Keywords: Business Sphere, Germany, Contracts, Labour Relations
Introduction
Business law applies to contractual, labor, corporate, tax and other relations since these relations refer to business activity, are loaded with a commercialization component and are creating ideas about the business environment. However, since it is physically impossible to cover all aspects of business law in one article, especially given the specifics of the fundamentals of business regulation in Germany, the purpose of the study is to highlight and analyze only some of them.
The paper describes how to conduct business in Germany in compliance with legal regulations. Accordingly, the purpose of the study is to determine the legal framework for doing business in Germany, and then - the legal peculiarities of starting and doing business. Therefore, this article serves as a methodological guide to obtain information about the business environment in Germany. In this sense, the study discusses the legal forms of doing business recognized in Germany, the legal possibilities of establishing various contractual or employment relations with counterparties, and the grounds for corporate or private liability in case of violation of rules. The model of corporate governance in Germany and its features are of particular interest. This is to some extent related to issues of external responsibility and internal corporate governance.
It is also necessary to clarify the prerequisites for implementation of contractual and labor rights in Germany, especially in the event of a pandemic. Thus, a brief discussion of the issue will highlight the specifics of the performance of duties during a pandemic in Germany.
A normative-dogmatic method is used to achieve these goals. This method will help us present the legal basis for doing business in Germany and discuss dogmas associated with them. In addition, the study uses methods of synthesis and analysis to create a general picture around these issues and draw logical conclusions.
Legal forms of doing business in Germany
Business law in Germany is associated with certain unions and larger business enterprises such as corporations. For the clarification of the business situation it is necessary to determine how business law plays a central role in this area.[1]
Initially, the provisions of the Law on Limited Liability Companies and the Law on Joint Stock Companies in Germany were part of the Commercial Code, but desire to combine all the rules into one code gradually disappeared in the process of developing economic relations. Accordingly, the following laws have now been separately adopted in Germany to regulate business relations: the Law on Limited Liability Companies (GmbHG 16), the Law on Joint Stock Companies (AktG17), and the Commercial Code[2] (Gandelsgesetzbuch - HGB 15). However, the German Civil Code (BGB 14) is particularly important among the corporate governance rules in Germany.[3] The German Civil Code contains general rules on legal entities and distinguishes non-profit and entrepreneurial legal entities (BGB § 21 and § 22).[4] Thus, the law allows creation commercial and non-commercial associations for doing business.
It is notable, however, that Germany has developed the Pre-foundation Doctrine (Vorgesellschaft), which states that an association is entitled to step in a legal relation and is considered a sui generis legal entity (but not a corporation) if the statute of the association is duly signed. Accordingly, the company that existed before the registration is called "Previous Company". At this time, the statute already applies to relations between the founders. When the registration process is completed, the previous company will automatically turn into a corporation, i.e. eventually become a corporation. After the registration of the company, the personal liability of the founder disappears, because the transactions concluded by the "previous company" and their results are transferred to this registered company. It should be noted here that the founders can be held liable before the corporation if the economic activity carried out before the establishment reduced its assets and led to a decrease in the authorized capital of the company (decapitalized the company).[5]
A corporation is expressed by the term “Verein” In Germany, which means union, community, association. Although one group of German authors sharply distinguishes between such concepts as a corporation and a union of capitals, others, on the contrary, consider these concepts as identical ones.[6] The fact is that the idea of a corporation lays in a basis of gathering of different capitals, hence its name is "Capital Society" (Kapitalgesellschaft). However, unlike personal associations, personal participation is not mandatory here, participation is inherited; Legal status is more difficult to obtain than in a union of persons. It should also be noted that, as a rule, members of the Society are not liable for the debts of the Society. The will is expressed by a majority vote, and business is usually done on behalf of the union.[7]
Any company or individual must decide which form to use to start a business in Germany. German companies can be divided into corporations, partnerships and associations.[8]
German commercial law provides following organizational and legal forms of corporations: a joint-stock company (Aktiengesellshaft - AG), a partnership limited by shares (Kommanditgesellschaft auf Aktien - KGaA) and a limited liability company (Gesellschaft mit beschränkter Haftung - GmbH). It is clear that a limited liability company has an advantage if we look at practice, namely there were 15,453 joint-stock companies and 1,1186,598 limited liability companies in 2016 in Germany.[9] There are also separate European Type Companies (SE). As for the type of partnership, its forms are: Civil law partnership (GbR), General commercial partnership (oHG), limited commercial Partnership (KG), Partnership Association (PartG), Closed type partnership. However, in fact, foreign investors operate through a partner Company or Branch in Germany. There are tree types of partnership, the civil law partnership (BGB Gesellschaft), the general commercial partnership (oHG) and limited commercial partnership (KG).[10] With regard to partnerships, the most common organization in Germany is a limited liability company. [11] This is due to the fact that, unlike joint-stock companies, this organizational and legal form has less legal requirements. An LLC is considered a more flexible form of small business because the liability of shareholders in an LLC (such as a JSC) is limited. However, unlike the JSC, shareholders have more possibilities to interfere in the management of the company; moreover, they can give direct instructions to the directors of the LLC. However, directors are jointly and individually liable to the company.[12]
In addition, with the reform dated on November 1, 2008 it was enacted the federal law "On the modernization of legislation on limited liability companies and the prevention of abuse of rights” in Germany. The purpose of the reform was to simplify the establishment of a company, and the main condition for the simplification was that the founders of such a company could start their activities without determining the minimum required authorized capital. As a result, two limited liability companies were formed: there is a standard company On the one hand, which must have a minimum share capital of 25,000 euros, and a company, which can be created according to the German law, without the mandatory share capital, on the other hand. It is also stipulated that 25% of the profits must be credited to the statutory reserve until the amount reaches the authorized capital (25,000 euros) in such a company.[13]
The above community can be an entrepreneur. In accordance with Article 14 of the BGB, an entrepreneur is an individual or legal entity or a legally capable partnership that makes deals for the manufacturing or independent professional activities. In addition, an association of persons is a society that may have subjectiv rights and obligations.[14] The consumer, which, according to article 13 of the BGB, is any natural person whose actions in the process of making deals are not based on his commercial or professional purpose, uses manufacturing products.[15]
Two types of capital are recognized in Germany: a. Limited Liability Company and b. Joint-stock company. Shares of a Limited Liability Company may not be put on public sale, while shares of a Joint Stock Company may be traded on the securities market.[16]
Corporate governance system and Responsibility
German corporate law recognizes a two-step system of management, which is considered as its peculiarity. The fact is that the management board and the supervisory board are considered as equal bodies in such management model.[17] German companies’ two-step system involves a supervisory board and a board of directors. The Meeting of shareholders elects the Supervisory Board, and the directorate, which is appointed by the Supervisory Board, carries out the management of the company.[18] However, the German Corporate Governance Code allows for the choice of a single-step system for European companies. Thus, German law is in line with the European directive, according to which a European company is free to choose a one-step or two-step management model.[19]
Members of the governing body are not strictly liable for damages to the company or its creditors in Germany. The inability to manage the company ultimately has a negative impact on the company, but does not automatically lead to its liability for possible damage. The director is personally liable for any culpable violation of his duties. Such obligations may arise from contract (by internal rules of the association, agreement with the director) or from law (civil, corporate, criminal or insolvency law). Cases of violation of the obligations of loyal competition and illegal redistribution of the company\u27s capital have become more frequent. German law divides duties of directors into two parts: a. The director\u27s responsibility directly to the company (internal liability) and b. Director\u27s liability to third parties (external liability). They can also be held criminally and administratively liable at the same time. Internal liability is based on violations of duties arising from the powers of the director in the company. Members of the management body shall be jointly liable for any damage caused to the Company because of non-compliance with their reasonable leadership and caring leadership duties. External liability refers to liability to any person other than the company. The responsibilities of the governing body are primarily the responsibility of the company and not of third parties; therefore, external liability is very rare. As a rule, any claim by third parties for damages can only be directed against the company and the organization may have recourse against the director.[20]
Thus, preference is given to intra-corporate management in Germany, which is because the competence between these bodies is strictly separated at the legislative level.[21]
Successful management of a company means protecting the shareholders and directors of the company from their individual property liability under the so-called "corporate veil ". In this sense, corporate protection is seen as an immunity that limits the liability of owners of the company and separates the owner of the company from the obligations of the company. A company\u27s limited liability protects owners\u27 personal assets from the company\u27s creditors.[22]
The court has developed the doctrine of piercing the corporate veil ("Durchgriffshafung") in Germany.[23] The rule of pierced corporate veil can be enforced by the court n Germany if the shareholder and the corporation fail to comply with corporate formalities, resulting in the creditor misidentifying the corporation.[24] According to the example of Germany, we can say that often the principle of piercing the corporate veil is applied to a limited liability company. However, the partner\u27s personal liability is based on mandatory provisions of concern law.[25]
Violation of formalities entails piercing of corporate veil if creditor was deprived of the opportunity to identify the counterparty exactly because of this violation. As for confusion in owner of the property (is it individual or corporate property), it can lead to pierced corporate veil if the financial transactions are carried out in such a way that it is impossible to identify property of society.[26]
The fact is that German courts do not take into account the corporate principle of limited liability in exceptional cases. The German jurisdiction shares the so-called "traditional vision of a legal entity", according to which any registered company has a basis for its legitimate existence. The factors applied to Piercing of corporate Veil in Germany are similar to those presented in the United States. Thus, liability to shareholders can most often be brought when the full control exists among other factors such as mistake in nature (individual or corporate) of assets of a shareholder, insufficient capitalization, and neglect in corporate formalities (rules of governance).[27]
The German law on joint-stock companies determines that a decision-maker (director), which caused damage enjoys immunity of the directors (sovereignty), which protect them from responsibility, provided the board of directors: (a) Passed the business decision, (b) Acted in accordance with the principle of good faith; c) Acted on the basis of adequate information; d) Acted in interests of the corporation.[28]
Germany bears the burden of proof on the director in this case, so he must prove that he acted in good faith, had the right information and that his activities served for the benefit of the enterprise.[29]
It is also important to distribute duties of care and loyalty to members of the Managment Board together with members of the Supervisory Board. Violation of them gives rise to the right to claim the compensation for damages. However, members of the Supervisory Board are liable in the case of transactions made against the interest of society.[30]
The freedom of entrepreneurial decision is important in relation with the presumption of the validity of a business decision (rule of business judgment). American rule of free enterprise decision also has international significance. For example, the freedom to make an entrepreneurial decision was achieved through a court decision in Germany.[31]
The business judgment rule was first developed in the United States, although it is also found in German law. It is seen as a mechanism by which board members, directors and members of the supervisory board can be relieved from the risk of failure caused by production activities: This risk is not a risk for members of management bodies, but directly for society and indirectly also for partners, since it is clear that economic and entrepreneurial activity is impossible without risk.[32]
The German Business Judgment Rule is a modified version of the American Business Judgment Rule. Germany implemented the Business Judgment Rule in legislation in 2005. In order to codify this institution, the first paragraph of Article 93 of the Law on Joint Stock Companies[33] was amended, which states that "obligations are not considered violated if a member of the board could reasonably assume that he acted in the interests of the company on the basis of relevant information."[34] The rules of business judgment in Germany imply that management (leadership) must apply the measures that a wise and purposeful manager would take. Management board can be held liable for the poor performance of a company based on entrepreneurial business decisions taken with the due care of responsible managers, even if these decisions subsequently turn out to be failures. Business judgment rules makes the content the responsibility of directors wider and make them responsible for taking production risks, but at the same time do not allow them to to be inactive at the expense of investors and employees.[35]
However, not all management decisions are protected by the Rule of Business Judgment, but only those that are made in accordance with the following preconditions: first, the decision must be made by impartial directors, that is, directors who do not have a personal interest in the decision; Secondly, the decision must be made on the basis of sufficient information; Third, directors must act in the interests of the corporation. If a decision is made in violation of any of these requirements and the plaintiffs (shareholders or board of directors) prove it, the Business Judgment Rule will not take effect and the director who made the decision may be held liable.[36]
Business Negotiations and Peculiarities of Business Contracts in Germany
The legal basis of the disposal of capital or property in Germany is related to business law, Buying and selling rules, commercial law, solving cases in court and more.[37]
As a rule, Germans are more formal in business relations. They are more oriented on task (cause) rather than on building a relationship. Consequently, the Germans are critical to events, especially since they take into account the experience gained in the analysis of past projects and act to improve current processes.[38]
In this regard, in the process of business negotiations, first of all, it is important for parties to take the preliminary actions in their business relations.
The doctrine of the so-called “culpa in contrahendo” has been developed in German law, which was put in the BGB as a result of an imperative legal reform in 2002 and is considered as an independent basis for pre-contractual liability.[39] This pre-contractual legal obligation to prepare a contract was created, the prerequisite of which is the existence of a contract-like, trusted relationship and occures regardless of whether the contract is concluded in the future or not.[40]
Even in the pre-contractual period, protective obligations arise the violation of which causes liability. By virtue of the only “breach of duty” option, violation of all protective duties would invoke damages in the unified system of remedies. This, in turn, in the case of “culpa in contrahendo”, considers breaches of obligations in the context of the legal consequences of violation of the contract.[41] The obligation of pre-contractual diligence is presented in the form of “culpa in contrahendo” and is based on good faith in German law.[42]
The first erosion of the principle of good faith is the concept of pre-contractual duty based on the principle of good faith. Certain data and information about the parties are collected during negotiations based on the general principle of good faith, and, accordingly, duties arise to disclose, inform, keep confidentiality and protect the interests or rights of the other party. It is the violation of those pre-contractual obligations that can be considered culpa in contrahendo.[43]
The second change is provided by the reform of obligation law. According to § 311(2) of the BGB, there is a general duty of care during the pre-contractual period in accordance with the duty of care in the performance of contract.[44]
All this ensures the fulfillment of protective obligations in pre-contractual negotiations and appropriate sanctions in case of their violation. Accordingly, Germany thus created a mechanism for protecting the interests of parties at the pre-contractual stage.
It is also important to know what the contracts are like in Germany. In general, parties believe in Germany that they can achieve their goals at a much lower cost with the help of a treaty than in the US. What is the basis of this approach to the formation of contracts in Germany? This approach can be justified: If we compare the positions of the USA and Germany, then the difference between them will become clear and the question will be answered logically. Notably, the US contracting process focuses on individual cases and specific details of the contract to help parties get what they want in the contract. Based on this assumption
Judging the Freedom of Religion in India on the Touchtone of Doctrine of Essential Practice Test
Get PDFIndia is a secular nation where innumerable followers of religions, sects live. The Constitution of India gives the protection for freedom of religion. The protection is not available to all types of religious practices. This protection is available to only those practices which are essential to religion. Whether any religious practice is essential or not? To adjudicate this Indian Supreme Court has adopted the ‘Doctrine of Essential Practice Test’. This paper explore the development of this doctrine in India. This paper has been divide in six parts. First part gives a brief overview about people and their faith and their protection under constitution. Second part deals with the concept of secular state. Third part discuss about the meaning and concept of religion. Fourth part deals freedom of religion under Indian Constitution. Fifth part deals with doctrine of essential practice test. Sixth and last gives the conclusion.
Keywords: Secularism, Freedom of Religion, Fundamental Rights, Constitution of India
Introduction
India has a greater diversity of group of life. More than 1.25 billion people having and beliefs of various religions, languages, cultures, social life styles, traditions, practices, attitudes, and beliefs. In India almost all major and minor faiths have their own self-expression. Wsithin the religion innumerable sects, beliefs, practices and philosophies have grown.[1] The diversity of religion and their faith has protection in the Indian sub-continent. This protection comes from the concept of Secular State. A secular state does not recognize any state religion. But all the religions flourish and get equal scope for their development on the basis of non-intervention. The followers of different religions are free to form their own associations for their development, provided they do not come in the way of other associations. Preamble to the Constitution of India guarantees to make secular country and give its people liberty of thought expression faith and worship.
Concept of Secular State
D.E. Smith in his book ‘India as a Secular State’ has extensively written about the concept of Secular State He defines Secular State, as a State which deals with the individual as a citizen irrespective of his religion. It is not constitutionally connected to a particular religion nor does it seek to either promote or interfere with religion. D.E. Smith further states that secular state involves three sets of relations are:
(i) religion and the individual (freedom of religion);
(ii) the state and the individual (citizenship);
(iii) the state and religion (separation of state and religion).[2]
Dr. Sarvpalli Radhakrishnan expressed his view on secularism in India that when India is said to as a secular country, it does not indicate that we deny the presence of an unseen spirit, the significance of religion in daily life, or that we elevate irreligion. It doesn\u27t mean that secularism becomes a positive religion or that the government has divine authority. Despite the fact that faith in the Supreme is a fundamental principle of Indian tradition, the Indian State will not identify with or be governed by any religion. We believe that no single religion should be given preferential treatment or unique distinction, and that no single religion should be granted special privileges in national life or international relations, as this would be a violation of democratic principles and contrary to religion and government\u27s best interests.[3]
Prof. K.T. Shah said that “The State in India if it claims to be secular, it should have an open mind and in my opinion a right not merely to regulate and restrict such practices but absolutely to prohibit them.”[4] Here Prof. Shah had the opinion that State should prohibit such practices which are against the society. He was of the opinion that State should interfere in the practice of religion.
In Sri Adi Visheshwara Of Kashi vs State Of U.P. And Ors [5] K. Ramaswamy, J. said about secularism as “Secularism is the basic feature of the Constitution. The Constitution seeks to establish an egalitarian social order in which any discrimination on grounds of religion, race, caste, sect or set alone is voilation of equality enshrined in Articles 14, 15 and 16 etc. of the Constitution, The tolerance of all religious faiths, respect for each other\u27s religion are our ethos. These pave the way and foundation for integration arid national unity and foster respect for each other\u27s religion; religion faith and belief. Article 15(2), therefore, lays emphasis in that behalf that no citizen shall, on grounds only of religion, race, caste, sect, place of birth or any of them subjected to any disability, liability, restriction or conditions with respect to access to shops, public restaurants, hotels, places of public entertainment or the use of wells, tanks, baths and places of public resorts maintained wholly or partly out of State fund or dedicated to the use of general public” [6] This shows that discrimination on the basis of religion at public palace is not acceptable. The concept of Secular State cannot be discussed without the religion. Therefore, the concept of religion is required to be discussed here.
Concept of Religion
The Indian Constitution does not define religion. J. Patronica de Souza has written about the religion in two folds:
(1) It consists in the individual\u27s right of direct approach to God, and response to God according to conscience, and of adherence to that religious community which in his private judgment shall best minister to his religious and moral welfare.
(2) It consists in the right of a religious community freely to order its own forms of worship and social life for the religious and moral welfare of its members, and to give open witness to the faith which informs its common life.”[7]
.Dr. Sarvepalli Radhakrishnan, said that “religion is a code of ethical rules and that the rituals, observances, ceremonies, and modes of worship are its outer manifestations.”[8] The Supreme Court in Shirur Mutt Case[9] has defined religion in the Indian context. “Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else, but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.”[10]
Freedom of Religion in Indian Constitution
The Constitution has provision for freedom of religion. Part III from Art. 25 to 28 deals with fundamental right to freedom of religion. Except this, the Preamble of the constitution ensures that the people of India will have freedom of conscience, worship. Art 25 guarantees “to every person not only freedom of religion, belief and conscience but also the right to express his belief in such outward acts as he thought proper and to propagate or disseminate his ideas for the edification of others”.[11] Art. 26 guarantees “to every religious denomination[12] or a section of it, a right to manage its own affairs in matters of religion and the right to establish and maintain institutions for religious purposes”.[13] Art. 27 bans the involuntary imposition of taxes in support of a religion, although there must be a distinction drawn between religion in its doctrinal and ritual features, which is a private purpose, and the administration of public property dedicated to religious reasons, which is a public purpose.[14] Art. 28 (1) forbids religious education in any educational institution supported entirely by public funds. The constraints of Art. 28 (1) would not apply to an educational institution that, while governed by the state, was created under a "endowment" or "trust" demanding that religious instruction be delivered in such an institution, according to Art. 28 (2). Religious education in state-run institutions is prohibited unless voluntary or with the approval of the guardian in the case of minors, according to Art. 28(3).[15]
Dr. B.R. Ambedkar in Constituent Assembly addressing about the relationship between religion and personal laws said that every aspect of life is covered by the religion from grave to cradle. He further stated we are gathered here to limit the definition of religion so that it cannot go beyond such belief and rituals, which are essentially for religion. The religion should not take up the matters related to tenancy, succession. He was against the extensive definition of religion, which cover all aspect of life.[16]
Doctrine of Essential Religious Practice Test
The Supreme Court of India, while giving protection to religious practice adopted the ‘Doctrine of Essential Religious Practice Test’.[17] Doctrine of Essential Religious Practice Test protects only those religious practices, which are sine qua non to the religion in question. In adopting this doctrine, the statement made by first chief justice of the Supreme Court of India [18] can be seen in the judgement of Supreme Court. Kania C.J. had said, jurisprudence and principles laid down by the Supreme Court of USA would be relied in our decision.[19] Mr. Ronjoy Sen believes that ‘essential practice doctrine’ is a derivative discourse of doctrine of ‘justice, equity and good conscience’, which comes from colonial era.[20]
The Shirur Mutt case[21] was the first case on the essential practice doctrine. In this case, the petitioner, “challenged the Madras Hindu Religious and Charitable Endowment (HRCE) Act, 1951, on the principle ground that it infringed the fundamental right given under Art. 26 of the Constitution.” The Supreme Court prior to dealing with the violation of fundamental right discussed in this case to make a distinction between essential matters of religion and not essential matters of religion?’ The Supreme Court has taken the help of Adelaide Company vs. Commonwealth[22] to understand the definition of protection of religion in Indian context and said “the State is competent to impose restrictions under articles 25 and 26 on grounds of public order, morality and health. Clause (2)(a) of Article 25 allows the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice. Sub-clause (b) of Article make competent the State to legislate for social welfare and reform even though by so doing it might interfere with religious practices”.[23] In this, case the definition of religion given by USA Supreme Court in Davis vs. Beasoan[24] was rejected. To understand in more lucid manner the doctrine of essential practice test the Hon’ble Judge of Supreme Court had given illustration like: “If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of within the meaning of article 26(b).” Hon’ble judge further states that article 25(2)(a) is not regulation by the State in religious practices as such, but when the freedom of religion guaranteed by the Constitution run against to public order, health and morality then State interferes. Although they are connected with religious traditions, the state governs activities that are economic, commercial, or political in nature”.[25]
About affairs in matters of religion, is a guaranteed fundamental right to religious body it cannot be taken away by any legislation “A religious denomination is entitled to own and acquire property and to administer such property but only in accordance with law. This means that the State can regulate the administration of trust properties by means of laws validly enacted. A law, which takes away the right of administration altogether from the religious denomination and vests it in any other or secular authority, would amount to violation of the right which is guaranteed by article 26 (d) of the Constitution.”[26]
In 1958, the Supreme Court in Mohd. Hanifi Quereshi vs. State of Bihar[27] was called upon to pronounce on the rights of Muslim butchers to slaughter cows; an activity claimed to be part of the Islamic faith. Speaking for a unanimous decision Court S.R. Das CJ rejected the claim and said “that cow slaughter was an ‘essential practice’ of Islam by relying on his own interpretation of the Koran, Hamilton’s translation of the Hedaya explaining the implications of these verses”.[28]
The Supreme Court in Durgah Committee case[29] the Supreme Court has discussed about the protection given under Art. 26. Gajendragadkar J. said “Protection under Art. 26 is confined to religious practices as are essential and integral part of religion. Matters of religion in Art. 26(b) include even practices which are regarded by the community as part of its religion. The practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Art. 26 may have to be carefully scrutinized; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”[30]
In Acharya Jagdishwaranand vs Commissioner of Police, Calcutta[31], the Supreme Court was called upon to decide whether performance of Tandava dance by Annand Margis in public procession or at public places is an essential religious practice test. Justice Rangnath Misra said “In the instant case the Tandva dance was not accepted as an essential religious rite of Anand Margis because when in 1955 the Ananda Marga order was established it was not in practice. Later in 1966. Ananda Marga adopted Tandva dance as a part of religious rites. It very much recent. Therefore it is doubtful as to whether in such circumstances Tandva dance can be taken as an essential religious rite of the Ananda Margis”.[32] Here the Supreme Court has taken origin of the religious practice. The Supreme Court while applying the doctrine of essential test had taken time that is origin of practice.
In Gramsabha of village Battis Shirala Vs. Union of India & Ors.[33], in this case sub section 16 of section 2 Wildlife (Protection) Act, 1972 [34] was challenged on the ground that it violates the fundamental right under Art. 25 and 26 of snake charmer to catch snake and show them on Nagpanchmi. The petitioners claimed this is the essential to their religious practice. The Supreme Court has taken the help of a writing by Bharat Ratna Dr. P.V. Kane named as “Dharmashastrcha Ithihas\u27 \u27 which runs in five volume said there was never a practice to catch the live snakes or Indian Cobras and to worship the same as a part of religious practice. Therefore, it is impossible to come to a conclusion that the capturing of live snakes for a temporary period and worshiping live Cobras or snakes on the occasion of Nagpanchmi constitutes essential part of the Hindu Religion. It is impossible to record a finding that the so called practice is an essential practice which is fundamental to follow the religious belief”. Prof. Faizan Mustafa has criticized this judgment and said “the Supreme Court based on the scholar\u27s treatment of the text, the Court held that the act could not have been an essential practice of the petitioners\u27 religion. India is a huge country with huge diversity in the religious and cultural norms of its people. The apex court should have kept this diversity in mind. Neither Hindus nor Muslims nor Christians are homogenous communities. There are Muslim sects, like Khojas and Memons, who follow several Hindu practices. Similarly, the Hindu caste system to some extent is prevalent even among Christians”.[35]
Recently the doctrine of essential practice has been adopted in Triple Talaq case[36]. In this case the Supreme Court held “under ‘Muslim Personal Law, practice of Talaq-e-Biddat or Triple Talaq (that is instant irrevocable, unilateral divorce by husband by formula of pronouncing divorce three times) held as per majority, is not protected by Art. 25 as it is not an essential religious practice. Talaq-e-Biddat or Triple Talaq is against the basic tenets of Quran and thus violates the Shariat”.’[37]
In Sabrimal Temple case[38] the Supreme Court by majority held that "The prohibition on women aged 10 to 50 entering Sabarimala Temple to worship Lord Ayyappa is neither an essential practise or part of religion."
Allowing Hindu women to join a temple as devotees and followers of Hindu religion and present their paryers as to the god is, on the contrary, an essential aspect of Hindu religion."
However, according to devotees of Lord Ayyappa, excluding menstruation women from entering Sabarimala Temple is an important aspect of Sabarimala followers\u27 religion. Dipak According to Misra C.J. and Khanwilkar J., superstitions, dogmas, and exclusionary behaviours must be differentiated from religion\u27s essence.[39]
The Sabarimal verdict has generated lot of controversy on the doctrine of essential practice. A review petition has been filed before the nine judge bench of the Supreme Court, which is still pending. The Supreme Court decides the issue of essentiality can be summarized like firstly, Secular practice of religion should be different from religion; secondly the religious community must consider such practice in question as integral part of religion; thirdly, any practice which comes from superstations belief will not part of the religion.[40].
Conclusion
Prof. Faizan Mustafa has criticized the role of the Supreme Court in applying the Doctrine of Essentiality Test. He said that the working style of Supreme Court on this essentiality test is not as per the spirit of the framers of the Constitution. He said that “The framers of the Indian Constitution, was meant to guarantee freedom to practice one\u27s own beliefs based on the concept of inward association of man with God”. s The Supreme Court has itself acknowledged as much by noting that "every person has a fundamental right . . . to entertain such religious belief as may be approved of by his judgment or conscience . . . .” He said that the constitution maker wanted to give this freedom into the hands of individuals. This essentiality test applied by the judiciary is against this autonomy as “the judiciary assumes the power to decide what the essential or nonessential parts of religious practices are.” Prof. Mustafa made his submission that this action of the judiciary is against its own word where the supreme court while discussing the secular feature of the constitution stated that the State cannot say what is essential or integral part of religion. Moreover, the Supreme Court has itself acknowledged, “what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” The opinion of the Prof. Mustafa is not very convincing to me. As per debate took in Constituent Assembly the constitution makers want to give protection to only those, which are essential to religion, and not comes from superstitious. The interference was inevitable in freedom of religion. It may be in some case the Supreme Court has taken more active participation, which may be not desirable. There is no doubt the reform in religion after independence has been brought by the doctrine of essential practice test. It is necessary that this test should be applied for the identification of essential religious practices.
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Alexandrowicz, C.H, (1960). The Secular State in India and in the
მესაკუთრის მოთხოვნით უძრავ ნივთზე რეგისტრირებული მონაცემების მოქმედების შეჩერება, როგორც საკუთრების დაცვის ირიბი საშუალება
Get PDF In order to adequately protect property rights, it is necessary to apply the principles of legality in practice, namely: the documents submitted for registration, should be thoroughly checked, it should be determined whether technical errors are allowed, because the evidence in the case Substantial errors: in the part of the address, street name, owner name and surname, which was naturally the basis for the public registry not to carry out registration on the basis of a document with such significant errors. More responsibility should be placed on the registrar and the public registry in the registration process (as is the case in Germany and France), the degree of his responsibility should be enhanced, and judges in the Chamber of Administrative Cases should take the same position To assist plaintiffs in transforming a claim for damages (based on the principle of the Inquisition). მსოფლიოში არსებულ საკუთრების უფლების გადასვლის სისტემებს ერთმანეთთან, ორი ნიშნით განასხვავებენ : საჭიროა თუ არა სპეციალური საჯარო აქტი და რამდენად არის დამოკიდებული მხარეებზე უფლების გადასვლის მომენტი. კერძო (პუბლიკაციური)ეწოდება ისეთ სისტემებს, სადაც მხარეები განსაზღვრავენ უფლების გადასვლის მომენტს. ხოლო საადგილმამულო (საქართველო) ეწოდება ისეთ სისტემებს, სადაც საკუთრებაზე უფლების წარმოშობის მომენტს საჯარო აქტთან კავშირში განიხილავენ. კერძო სისტემებისთვის დამახასიათებელი არ არის საკუთრების უფლების გადასვლის რეგისტრაციის ფაქტზე დამოკიდებულება. შესაძლებელია, რომ კერძო სისტემის ფარგლებში არსებობდეს ორგანო, რომელიც აღრიცხავს გარიგებებს, მაგრამ ასეთი აღრიცხვა გავლენას ვერ მოახდენს უძრავ ნივთებზე საკუთრების უფლების წარმოშობაზე. საადგილმამულო სისტემების არსებობის პირობებში კი რეგისტრაციის ფაქტს კონსტიტუციური მნიშვნელობა ენიჭება, ვინაიდან სწორედ რეგისტრაციაზე არის დამოკიდებული უძრავნივთებზე საკუთრების უფლების წარმოშობა, ამდენად ეს ორი სისტემა საკმაოდ მნიშვნელოვნად განსხვავდება ერთმანეთისაგან. აღნიშნულიდან ირკვევა, რომ საერთო სამართლის ქვეყნებსა და კონტინენტური ევროპის სამართლის ქვეყნებს განსხვავებულიმიდგომები აქვთ საკუთრების უფლების გადასვლის თაობაზე, არსებობს საადგილმამულო და და პუბლიკაციური სისტემები, რომლებიც ახდენენ საკუთრების უფლების გადაცემას კერძო სუბიექტებს შორის, მნიშვნელოვანია ის ფაქტი, რომ აღნიშნულ სისტემებს აქვთ ერთმანეთთან საერთო მახასიათებლები, რაც იმას ნიშნავს, რომ, პირველ რიგში, დაცული უნდა იყოს საკუთრების უფლება და, ამასთანავე, უსაფრთხო იყოს რეგისტრაციის პროცედურები
მოვალე საზოგადოების მართვასა და წარმომადგენლობაზე უფლებამოსილი პირი რეაბილიტაციის რეჟიმში
Get PDFThe rights and duties of the director in entrepreneurial activities are regulated by both the 1994 and 2021 editions of the Law of Georgia “On Entrepreneurs”. The powers assigned to him/her include leadership and representation of the entrepreneurial company. The legal relations of the director often goes beyond the scope of corporate law. Accordingly, the rights and duties established by other fields of law apply to him. One of them is the law of insolvency, which provides for the director’s involvement in such a regime as the rehabilitation regime. In the paper, the role of the director is considered within the framework of the regulation of the law of insolvency, the rehabilitation regime, which is regulated by the law of insolvency. In addition to reacting to the imperatively determined action, the law obliges the director to assess the evaluable and foreseeable circumstances and to take appropriate action on it. The topic is relevant and interesting, because in addition to the civil liability towards the director, criminal liability may also be considered. In order to properly discuss the topic provided by the article, the laws on Insolvency Procedings and on Rehabilitation and Collective Satisfaction of Creditors are compared with each other. Decisions/rulings of the general courts of Georgia have been used in the paper in order to clarify the position of the court regarding the issue. And, in certain cases, the legal norms of different countries and foreign language literature are cited in the article for the purpose of making a comparison.
Keywords: Insolvency; restructuring regime; manager
Introduction
In insolvency law, the rehabilitation regime is of great importance. The director appears here as one of the main actors. This article is interesting and innovative in that it discusses the legal status of the director in the insolvency field. In addition, there are no adequate and sufficient studies on the given topic. To produce a proper standard paper, various research methods, such as historical, comparative, narrative, descriptive, and other methods, are utilized.
The purpose of the research topic is to study the legal framework established for the director in the field of insolvency.
The research subject is the study of the existing and old editions of the Georgian laws on Insolvency Proceedings and the Law “On Entrepreneurs”, in which the director’s institution falls.
The research aims to study the directors’ rights and responsibilities based on the comparative analysis of Georgian and foreign countries.
The field of insolvency is becoming a popular topic day by day. The rehabilitation regime, established by law, is gaining more importance than the bankruptcy regime. In particular, the debtor’s insolvency/anticipated insolvency[1] is considered the basis for starting the rehabilitation regime. According to the law, the debtor is insolvent if they are unable to cover the due obligations.[2] As for expected insolvency, there is no directly defined definition. It does not mean a specific case of non-fulfilment of the obligation. Here, an expected fact is assumed in the future, which may or may not become reality. The forecast of insolvency does not refer to any fixed period but to the “near future”, in which time the director can foresee the future development,[3] and for the anticipation, it is necessary to make a proper, reasonable decision. In the literature, it is considered that if the community can avoid insolvency by taking appropriate measures, it is implied that it is not threatened with insolvency.[4]
“Expected insolvency, in the absence of a uniform definition, is a category to be evaluated in each specific case, and the decision of when to consider an enterprise as “expectedly insolvent” needs to be made”.[5] The impending insolvency of the enterprise must first of all be noticed by the director, who, according to the Law “On Entrepreneurs”, has an imperative obligation to declare the risk of insolvency of the entrepreneurial community.[6] In order for the director to immediately notice the expected financial problem of the enterprise, they should be guided by the principle of managerialism[7] and carry out the daily Balance-Sheet Test and Cash Flow Test of the business community and the accounting balance.[8]
Under UK law, directors are responsible for the day-to-day management of a company and are considered to have a duty to minimize losses to creditors when the company is in financial difficulty, and there is a risk of insolvency.[9] The legislation of Great Britain provides the same basis for starting the rehabilitation regime as the Law “On Insolvency Proceedings” in force in Georgia. However, it is worth noting that together with insolvency/anticipated insolvency, a compromise or a contract between the debtor and the creditor is required to eliminate, avoid, or alleviate the financial difficulty that the company has faced.[10] In fact, the latter is similar to bankruptcy settlements and parties’ contracts, which were prerequisites for the commencement of the rehabilitation regime under the Bankruptcy Proceedings Act of 1996.
Submission of application by the director
It is one thing for the director to discover the fact of insolvency, and the second is to respond appropriately to it, manifested in submitting an insolvency application to the court. The declaration of insolvency is considered a way of conducting the proceedings against the debtor through the supervision of the court and the procedures strictly prescribed by law.[11]
Accordingly, submission of the application is a necessary formal prerequisite for starting the rehabilitation regime, the mandatory requisites of which are directly determined by law. For example, the name of the court, one\u27s status, data, arguments based on which the debtor’s insolvency or expected insolvency is established, justification - on the possibility of achieving the goal of rehabilitation, request to leave the debtor under management or to appoint a rehabilitation manager, etc.[12] Common requirements are important to give a proper look to the application because, in the field of insolvency, such a form is not used as established for filing a claim by the High Council of Justice of Georgia. Among the given general requirements, it should be noted that the arguments and justifications are mandatory. There are many positive aspects to their mandatory reference. For example, the fact that the real necessity determines the application to the court and the abuse of this right will not take place, which may result in damage to both the debtor and the creditor and the state. When it turns out that the debtor was not insolvent or expected to be insolvent in the first place, the applicant will be held liable under the law for damages and for the unfounded application.[13] It is good when the law provides for responsibility, but the evaluation criteria and standards are not defined in it. The judge determines the amount of damage based on their individual opinion.[14]
In addition to the mandatory instructions on the application, the director should consider attaching additional documents to the application if known to him. For example, this could be information about the debtor’s financial situation; information on the property of the debtor, which is encumbered by the security measure, accordingly, the identity of the secured creditor; information on the progress of other insolvency proceedings against the debtor; extract about the debtor from the Register of Entrepreneurs and Non-Entrepreneurial (Non-Commercial) Legal Entities; Also, any information that, in the applicant’s opinion, is important for the decision to open the rehabilitation regime.[15] The information is accessible to the person who manages the debtor community. Therefore, submitting additional documents to the court should not pose any problem for the director. Attaching additional documents to the application can certainly be evaluated positively. Because it will avoid misleading the court as much as possible, and there will be less risk that the director will be liable for damages.
Responsibility of the director
The Law “On Entrepreneurs” of 1994 gave a three-week period to the person authorized to manage and submit an application and provided responsibility for non-compliance.[16] The entrepreneurial law determined this obligation before the Insolvency Proceeding Law was adopted in 2007. After the Law “On Entrepreneurs” of 2021 and the current Law “On Insolvency Proceedings” were adopted, the norm regulating the issue remained the same in content, with the difference that the imperatively established norm defining the issue of responsibility was removed from the Law “On Entrepreneurs”. Meanwhile, the Law “On Rehabilitation and the Collective Satisfaction of Creditors’ Claims” indicates criminal liability for non-fulfilment of obligations.[17]
The Court of Cassation explains in one of the cases that for the purposes of corporate law, the management/representation of an enterprise is a contract reached within the framework of a bilateral contractual relationship, one party of which - the service provider - is obliged to provide the promised service, and the other party - to pay the remuneration. This type of contract is based on special trust and gives the person endowed with the right, within the framework of fiduciary obligation, full independence to carry out all the actions on behalf of and at the expense of the legal entity that will contribute to the achievement of the goal provided by the charter.[18] Within the scope of the contract between the parties, the person authorized to manage is obliged to determine the insolvency/anticipated insolvency and report it within the three-week period prescribed by law. Otherwise, as mentioned, the director will be subject to criminal liability established by law.
Article 51 of the new Law “On Entrepreneurs“ similarly regulates the issue. In particular, the supervisor must report insolvency/anticipated insolvency within the same three-week period. The Georgian legal regulation of the issue is similar to the norms stipulated by the German insolvency law. This is one of the examples of the close connection of Georgian-German law, which was clear from the day of the formation of the field of insolvency and further deepened. According to German law – “German Insolvency Regulation“, immediately after the determination of insolvency, but no later than three weeks, the person authorized to manage and represent the enterprise must apply. Failure to submit the application or late submission results in the criminal and/or financial responsibility of the person authorized for management and representation.[19]
Austrian insolvency law is very similar to German law in the legal regulation of the matter. Since the start of the COVID-19 pandemic, the director’s commitments in Austria have been treated with particular caution due to their responsibilities. During a financial crisis, managing directors’ duty of care requires them to carefully assess potential remedial issues, take appropriate restructuring measures and consider the timing of insolvency filings. Court disputes against the director on the mentioned issue increased during the pandemic. Accordingly, it will be difficult for the director to avoid responsibility if they do not fulfil their obligation and do not observe the deadline provided by the law.[20] Unlike the Georgian and German laws, Austria has a 60-day deadline for submitting an application, which has increased to 160 days during the pandemic.[21]
Exemption from liability of the director
Under the Law “On Entrepreneurs“, the duty of care imposed on the manager towards the company in order to increase profitability must be derived from the presumption of “correctness of the business decision“ (this institution has been known to us since 1829 through the Louisiana State Supreme Court.[22] It is, therefore, considered to have been developed by the courts.[23] This institution, created by the precedent law of the USA, has been incorporated in many countries of the world[24]). If the director acts in good faith with the belief that their decision was made in order to protect the best interests of community, and when making this decision, they were informed to the extent that they considered sufficient in the given circumstances, the director of the company is protected from personal liability for the consequences of this decision.[25]
Georgian legislation also provides for the release of the director from responsibility. In particular, according to the Law “On Entrepreneurs“ of 2021, the director will not compensate for the damage if they made the decision based on sufficient and reliable information, based on the interests of the entrepreneurial community, independently and without conflict of interest or influence of others.[26] The Law “On Entrepreneurs“ of 1994 established the same bases of responsibility. Accordingly, Georgian courts have a firm position on the issue. For example, courts in similar cases use the Business Judgment Rule to determine whether the directors’ duty of care has been breached. According to the Business Judgment Rule, if a director acted in good faith, as an ordinarily prudent person would do in their place, they cannot be held liable solely for the unintended consequence of the decision. In order to determine whether the director acted in accordance with the mentioned obligation, it is necessary to pass a subjective and objective test. The criterion for evaluation is the fact that their action is considered according to how an average, reasonable person in their place would have acted. A director’s liability may arise if it is found that a reckless and imprudent decision was made or if it is found that nothing was done to prevent a possible loss.[27] In order not to be held liable, any decision of the director should, first of all, be aimed at increasing the community’s property and its income.[28] The Law “On Entrepreneurs“ of 1994 and the court practice regarding the bases of director’s liability have been consolidated in the new Law “On Entrepreneurs“ and formulated in a new edition.
Director in rehabilitation regime
The Law “On Insolvency Proceedings” made minimal reservations regarding the director’s powers, while the new “Law on Rehabilitation and the Collective Satisfaction of Creditors’ Claims” provides a relatively broad framework. In particular, it defines the suspension of the director’s authority, their obligation and the amount of remuneration for the work performed. Article 72 of the law, which deals with the termination of the director’s powers, determines that after the rehabilitation manager is appointed, the director shall cease to have the powers provided by the law “On Entrepreneurs”, which implies leadership and representation. Also, if the rehabilitation manager allows the director to participate in implementing the rehabilitation process, they will be obliged to remain in the rehabilitation regime. For this, the director will receive reasonable remuneration, the amount of which is determined by the rehabilitation manager. Continuation of the director’s activity implies cooperation with the rehabilitation manager and participation in preparing and implementing the rehabilitation plan.
The law provides for a situation where the director’s authority does not end with the appointment of the rehabilitation manager, nor does it remain in the process by their decision. This exception is determined by Sections 3 and 4 of Article 99, which implies that the person authorized to lead, i.e. the director, is obliged to submit any declarations that were not previously submitted to the tax authority within 15 days after the company is declared insolvent and the court decision becomes legally binding; while in the already submitted declarations, if an error is found, it can be changed and/or added in accordance with the tax legislation. According to Section 6 of the same Article, if the director does not fulfil the mentioned obligation, the issue of their responsibility will arise, and regardless of the occurrence of such a case, they will not be released from the obligation to submit the declaration.
As noted in the Law “On Insolvency Proceedings”, the director’s powers were minimal. They only indicated that “in the process of rehabilitation, the circle of powers of the rehabilitation manager and the director of the enterprise is determined by the meeting of creditors”.[29] Therefore, it is clear that the director would participate in the rehabilitation process as much as the meeting of creditors decided and wanted their involvement.
As we can see, during the creation of the new Law, the legislators have done fruitful work on the directors’ powers and obligations. I think the changes affecting the director will positively affect the rehabilitation regime. The knowledge and experience that the director has accumulated during their management and representation will be positive for both the debtor and the implementation of the rehabilitation process. Also, it is worth noting that the Law does not define the director’s status while they remain in the rehabilitation process and continue their activities. As we can see, the director\u27s activity is not limited to advice. Therefore, we cannot call a director consultant because they are involved in the process, from preparing the rehabilitation plan to its implementation. What will be the director’s name who will remain in the rehabilitation process? The fact that starting the rehabilitation regime and remaining in the process of the director deprives the director of the opportunity to exercise the powers that the Law “On Entrepreneurs” implies raises the question. Also, it is interesting to see what type of contract will be signed with a director during the rehabilitation process. Will it be a so-called employment contract stipulated by the Law “On Entrepreneurs” or a labor contract? If the director remains in the rehabilitation regime with the same status as the Law “On Entrepreneurs” implies, a labor law contract cannot be concluded with them because their relationship is regarded as high quality and level.[30]
Doctor of Law Roin Migriauli objected to titling the contract signed with the LLC director as a “labor contract”. He thinks the contract signed with the director should be referred to as an “employment contract”. or, by German Law, as he suggested, a “society management contract”.[31] Although this issue is no longer open in the Law “On Entrepreneurs” according to the new edition, the uncertainty of its status in the rehabilitation regime, hopefully, will not have a negative impact on the regime, and the legislative gap will be filled and/or the court will establish proper practice.
The director is a necessary body for the management of the entrepreneurial community, whose importance is crucial in properly managing the community’s activities,[32] as evidenced by the norms established by the new Law “On Entrepreneurs”. Considering the importance of the director’s institution, I think that all issues surrounding it in the insolvency field should be appropriately regulated.
Revew of the case law
After the Law “On Rehabilitation and the Collective Satisfaction of Creditors’ Claims” entered into force in 2021, many insolvency applications were filed in court, and after that, the demand for the rehabilitation regime increased twice.
In one of the cases where the rehabilitation regime was opened for the debtor, the debtor remained in the regime represented by the director - that is, the debtor is under management. There are different systems regarding insolvency law, according to which countries’ insolvency law systems are evaluated according to whether they meet international standards.[33] The 2020 law came closer to international standards when it introduced the debtor’s stay in management and activated its role with appropriate involvement in management. The European Directive also offers a similar regulation.[34] Remaining in the management of the debtor is a new institution in our legal space. A number of lectures and scientific papers were devoted to the convergence of the insolvency law field with international standards and the change of the 2007 law in order to regulate both the debtor’s bankruptcy and the rescue of their enterprises fairly, i.e., rehabilitation.[35] The activity of the mentioned debtor was the use of the autodrome and the organization of events. In this case, the debtor had a creditors’ claim in the amount of 798,000 US dollars, which was confirmed by the decision of the Supreme Court and for which appropriate measures were implemented. Enforcement measures aggravated the legal and economic situation of the debtor. Consequently, the debtor was unable to meet current tax and debt obligations. Within the scope of the seizure measure, the enterprise’s income was directed entirely to satisfy the interest of the first creditor, which led to the violation of other due and expected obligations. Since it was impossible to meet all creditor requirements with the current income of the enterprise, the debtor requested the opening of the rehabilitation regime, which the court accepted, and a decision was made to declare the application admissible and open the rehabilitation regime.[36]
During the pandemic, one of the debtors appealed to the court to open the rehabilitation regime. The main subject of debtor’s activity was the production, bottling, sale and other similar activities of wine, spirits, mash, juices, and fruit wines. In addition, the debtor carried out other activities permitted by law, such as renting out premises, etc. As it is clear
დამნაშავეთა ორგანიზებულ ჯგუფში მონაწილეობის კრიმინალიზაცია პალერმოს კონვეციის მიხედვით
Get PDFTransnational organized crime and the fight against it is a significant challenge for our country. Palermo Convention The same United Nations Convention against Transnational Organized Crime was adopted by the UN General Assembly on 15 November 2000 with the aim of promoting cooperation in the fight against transnational organized crime. The article examines in depth Article 5 of the Palermo Convention, which calls on member states to directly criminalize participation in organized crime groups. In accordance with this requirement, a number of important changes have been made in the Georgian legislative space. These include the Criminal Code of Georgia, the Law of Georgia on Organized Crime and Racketeering, as well as the Criminal Procedure Code, the Civil Procedure Code of Georgia and other legal acts. The article discusses and evaluates the results of the work of each of the above legal documents, both on a theoretical and practical level. The National Strategy for Combating Organized Crime of Georgia has been evaluated and discussed. Judicial practice has also been studied, which ultimately allows for important conclusions to be drawn. At the end of the paper we will talk about the challenges of Georgia in terms of combating organized crime, the main directions, problems and shortcomings in the fight against organized crime. ტრანსნაციონალური ორგანიზებული დანაშაულები და მასთან ბრძოლა ჩვენი ქვეყნის მნიშვნელოვან გამოწვევას წარმოადგენს. პალერმოს კონვენცია (იგივე გაერთიანებული ერების ორგანიზაციის კონვენცია) ტრანსნაციონალური ორგანიზებული დანაშაულის წინააღმდეგ მიღებულ იქნა 2000 წლის 15 ნოემბერს გაეროს გენერალური ასამბლეის მიერ. კონვენციის მიზანია, ხელი შეუწყოს თანამშრომლობას ტრანსნაციონალური ორგანიზებული დანაშაულის წინააღმდეგ ბრძოლაში. სტატიაში სიღრმისეულად არის შესწავლილი პალერმოს კონვენციის მე-5 მუხლი, რომელიც უშუალოდ დამნაშავეთა ორგანიზებულჯგუფებში მონაწილეობის კრიმინალიზებას ითხოვს მონაწილე სახელმწიფოებისგან. აღნიშნული მოთხოვნის შესაბამისად ქართულსაკანონმდებლო სივრცეში არაერთი მნიშვნელოვანი ცვლილება განხორციელდა. მათ შორისაა საქართველოს სისხლის სამართლისკოდექსი, საქართველოს კანონი ორგანიზებული დანაშაულისა და რეკეტის შესახებ, ასევე სისხლის სამართლის საპროცესო კოდექსი, საქართველოს სამოქალაქო საპროცესო კოდექსი და სხვა სამართლებრივი აქტები. სტატიაში განხილული და შეფასებულია თითოეული ზემოაღნიშნული სამართლებრივი დოკუმენტების მუშაობის შედეგი როგორც თეორიულ, ისე პრაქტიკულ დონეზე. შეფასებული და განხილულია საქართველოს ორგანიზებული დანაშაულის წინააღმდეგ ბრძოლის ეროვნული სტრატეგია, ასევე, შესწავლილია სასამართლო პრაქტიკაც, რაც საბოლოოდ მნიშვნელოვანი დასკვნების გაკეთების შესაძლებლობას იძლევა. ნაშრომის დასასრულს საუბარია საქართველოს გამოწვევებზე ორგანიზებულ დანაშაულთან ბრძოლის კუთხით, ორგანიზებული დანაშაულის წინააღმდეგ ბრძოლის ძირითად მიმართულებებზე, პრობლემებსა და ხარვეზებზე
Conscientious Objection (Georgian Approach – Case of “id Cards”)
Get PDFThe article concerns the legal issues of the “Conscientious objection”, primarily that of substantiation of the question –whether an individual’s act, motivated by religious or non-religious beliefs and denying to observe certain legal requirements, will gain legal protection; The Author represents all related issues, factors and circumstances, that should be taken into account and the corresponding scheme of the analysis and substantiation, with several important crossroads. By the Author, it is too important to fi nd a good, proper direction on each stage and continue until the following crossroad. The Author shows, what these crossroads are in practice, and issues that should be discussed and analyzed on each stage. Through this prism the Georgian legal approach is analyzed in the article, namely, the decision of the Georgian Constitutional Court of June 4, 2020, so called “a case of ID cards” – Nana Sepiashvili and Ia Rekhviashvili v. Parliament of Georgia and Minister of Justice of Georgia. The case concerns the applicant’s denial to receive and use new ID card, containing electronic chip. For the applicants, the electronic chip represents the effective mean for massive control over the people. They share the widespread orthodox Christians’ opinion, that chip represents the sign of the Beast, despite the fact, that Holly Synod of Georgian Orthodox Church disclaimed such an opinion. There is shown in the article, what issues and questions have been considered and examined by the Constitutional Court, in which way and succession; By Author, The Court took a very delicate approaches and was able to fi nd a very proper way of substantiation in spite of multiplicity of the pro et contra arguments, different factors and controversial issues. The Author concludes, that the Georgian approach is in line with the European and American case-law, but, at the same time, it develops a new principle and methodology, that facilitates the proper adjudication of the “conscientious objection” cases and reaching a fair balance between the individual rights and public interests. To the Author, the Georgian Constitutional Court has further developed already existing approaches, particularly, in the direction of positive obligation of a State. The Court differentiated the positive obligation of a State in the process of elaborating the new legislation and positive obligation which may arise after the legislation became operative. The first one implies an obligation to predict the risk of appearance of a conscientious objection towards new legislation, possible negative side effects in case of disobedience, inter alia, the burden, that can be imposed over an individual’s religious rights, and, finally, to make relevant exemptions from new regulations, if reasonable and necessary. But the second one implies a positive obligation of a State to respond adequately the de facto situation and administer all necessary measures in order to eliminate the damage and other negative effects that individual suffers as result of disobedience based on his/her belief. In the abovementioned case, the Court saw the State’s positive obligation to respond the de facto situation notwithstanding the fact, that it did not fi nd the challenged law unconstitutional