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Response to Incitement: Call for Algeria Sanctions (International Legal Analysis)
Full text linkThe consequences of the war in Ukraine have reached beyond Europe, significantly impacting regions such as the southern Mediterranean. Within this geopolitical context, Algeria—although maintaining a neutral stance in the conflict—is often perceived by Western actors as a longstanding ally of Russia. This perception has triggered political reactions in the United States, particularly among a minority group in Congress led by Representative McClain, who has suggested the possibility of imposing sanctions on Algeria. This article explores the legal nature and potential implications of such a proposal, questioning its validity and examining its alignment with international law. In doing so, we aim to assess whether the proposed measures fall within the permissible boundaries of unilateral coercive actions or constitute an overreach with no solid legal foundation. Moreover, this paper critically evaluates the broader impact of the report on regional stability, arguing that it may contribute to escalating tensions in an already fragile geopolitical landscape.
Keywords: Report, sanctions, American Congress, international law, protection.
Introduction
The war in Ukraine has revealed some weaknesses and even some disorder in the joint American-European reaction. It is above all a question of the somewhat soft approach of the Franco-Italian German trio compared to its hard corollary from the USA, notably under the auspices of the former Biden administration, the United Kingdom and the rest of the EU, especialy the eastern bloc of Europe, such as Poland and the Baltic countries. About this war, its beginning was marked by condemnation of the act of aggression coming from Russia and altering the sovereignty of a UN member country (UN/GA/12407, 2 March 2022).[1] And subsequently, some authors tried to justify the American interference by looking for some legal arguments in this sense, such as the reference made to the rules of jus ad bellum.[2]
In addition, and still within the framework of international law, there was also the thesis of self-defense by Ukraine against Russian military intervention, advanced in the context of general interference from the West. However, the problem that remained here was that supplying arms to Ukraine would still be inconsistent with the principle of neutrality of States during an armed conflict, knowing full well that Ukraine is not part of NATO and therefore is not protected by this politico-military organisation.[3]
Beyond the American-European reaction and that of the members of NATO, it is perhaps better to return to the meeting of the general assembly of the UN aforementioned, where a lot of States abstained from the condemnation explicitly from Russia. Among these countries, there are global economic forces like China and India, and other fluctuating medium-sized regional powers like Iran and even Algeria in the southwest of the Mediterranean. To tell the truth, we are talking about countries with a non-Western culture. About Algeria, it started to be affected by the war in Ukraine through the energy crisis. Indeed, the Russian economic counterattack, consisting of blocking the gas lines (Nordstream 1 and 2) supplying the EU Member States, has pushed them towards other suppliers such as Algeria. It should be noted that this country is already linked to the EU and its Member States by the association agreement,[4] especially article 61 (energy and mining), putting the development of gas transit among the objectives of cooperation in the field of energy and mining. Thus, the word gas is cited 24 times as a product benefiting from the preferential rights granted by the Community to products originating in Algeria.
Following the aggravation of the energy crisis, the United States of America and through its ex-Secretary of State for Foreign Affairs Antony Blinken who visited Algeria, asked the authorities of this country to increase its exports gas to EU Member States.[5] For its part, Algeria, which is the third supplier of gas to the EU, has responded by these technological incapacities to double its production, although this country has reassured France and before it Italy to do its best to partially remedy the Russian part in the market of these two EU member states. Despite this, soon after Mr. Blinkin’s return was accompanied by an official non-executive approach from a parliamentary minority arguing for the imposition of some sanctions to the detriment of Algeria, and which we will expose the content with more comment (I). Then, we will criticize through legal arguments this same report, tending to intensify the tensions that risk generalizing potential armed conflicts in the southwestern part of the Mediterranean Sea (II). Finally, we are looking for a few arguments along the lines of advocating for the protection of medium-sized countries. We specify that these are located at the gate of a great power or a military alliance (III).
1. Algeria Sanctions: McClain’s Bipartisan Call against Algeria
As a reminder of the report calling for the imposition of economic sanctions against Algeria, we quote that on September 30, 2022, twenty-seven U.S. lawmakers led by Republican congresswoman Lisa McClain took this initiative; hence, we wonder about the legal nature of the said report and especially about its scope. At first glance, it is an internal non-binding text that does not reflect the majority of the votes of the American Congress, but more or less, it approaches the legal nature of a recommendation. Recommendations allow an institution or body to make their views known and to suggest a line of action without imposing any strict legal obligation on those to whom the recommendation is addressed, who may be high-ranking state officials, like the US Secretary of State for Foreign Affairs in our case, or other institutions or citizens. We will present this definition following an analogy made to a few articles of the Treaty on the Functioning of the European Union (TFEU).[6] It seems reasonable to us to make this analogy given that the United States of America is a federal state and that the EU, which tends more and more towards integration, is therefore approaching the model of a federation of states.
As for the content of this appeal, it emphasizes the American federal law called Countering America’s Adversaries Through Sanctions Act (CAATSA),[7] and is intended for countries that are enemies of America, or even countries cooperating on a military level with anti-American countries or organizations. It should be noted that Algeria was not the first country cited in such a report because Iran, North Korea, and even states supposedly considered good allies were the subject of similar calls, and this is the case with Turkey and Egypt, which bought S-400 anti-missiles and Sukhoi-35 fighter planes, respectively, from Russia.
Russia was really the subject of sanctions since 2018, i.e. even before its military intervention in Ukraine, these sanctions came as a result of Russian cyber-activities. However, Russian cyber attacks are part of its armed operation in Ukraine even if they are criticized in terms of their inability or insufficiency from american and Western point of view,[8] and of which we do not always share the same opinion.
If we insist so far on Russia it is to understand what link maintains the impact of the operation carried out by this country in Ukraine with the elaboration by some members of the US Congress of the report which calls for sanctioning Algeria in reference to CAATSA and especially for see further if this is sufficiently justified legally, knowing well that we are within the framework of the internal American legal order and not necessarily with reference to and in accordance with international law.[9] It is therefore to CAATSA text that we must return to seek out and examine the American arguments which revolve around Algeria’s military cooperation with Russia. This cooperation described as strategic and materialized by a bilateral international agreement but it goes back to a period preceding the Russian war in Ukraine, so it is a real Algerian-Russian partnership and/or association which has several facets, that is to say it covers several military aspect and other fields,[10] hence the question on the real causes of the advent or rather the elaboration of the said report.
We can say that American fears do not necessarily stem from Algerian-Russian military cooperation alone because Algeria is located in an area traditionally considered to be dependent on NATO’s field of maneuver, and Algeria does not constitute a threat to this politico-military entity or its member states. On the other hand, the said report of the American Congress intervened to put pressure on Algeria and to prevent it from joining BRICS, in particular because this country has explicitly embarked on this path. For Algeria, this initiative is only a means of protecting itself against the excesses of the Arab spring which has overwhelmed a lot of countries belonging to the same region and consequently the Algerian ambitions to integrate the BRICS have no visible link with the Ukrainian crisis, nor with the attempt to weaken the US dollar, nor for that matter contribute to the new theory of the multipolar world. So to prevent any degradation in Algeria, such as that experienced in Libya, Syria, or in the rest of the countries, which have experienced instability due to the external conspiracy of the Arab Spring, Algeria is required to reflect on enhanced multi-faceted cooperation with the BRICS. A balanced association that departs from the Euro-Mediterranean model and takes into account the Algerian-Russian strategic partnership, which reflects a confirmed geostrategic agreement model. This, without neglecting, of course, the history, which preceded this partnership on the legal and political levels.
To clarify this situation, we talk about Algeria as a third country to BRICS, but also and above all a medium-sized regional player, which maintains good historical relations with the member states of this entity. We aim here first Russia, then China, South Africa, and India, without neglecting Brazil. Although we try to take advantage of bilateral Algerian-Russian relations in view of their visibility. Moreover, it seems reasonable to take the Algerian-Russian cooperation forward as a first step towards the association between Algeria and BRICS, without harming Western interests. In a legal context, access to a possible association agreement between Algeria, on the one hand, and BRICS and its member states, on the other hand, is justified by the current situation in this North African country. Indeed, Algeria is linked to the European Union and its member states by the Euro-Méditerranéen Association Agreement. It should be noted that the outcome of this international convention followed the weakening of Algeria during the black decade (from 1992 to 2002). This has weakened the Algerian position in negotiations with their European counterparts since the start of the Barcelona process, known as the 5 + 5 jargon. The result was the ratification of an agreement that did not serve Algerian interests well, knowing full well that it imposes only European values on the Algerian side and that in a single direction. This embarrassing international conventional situation which makes any Algerian attempt to get closer to Brics minimal is doubled by the degrading security situation in neighboring Libya, triggered by France, supported by NATO and aggravated by Turkish interference, also a member of the NATO. Coming to this serious stage of the attack on the principle of state sovereignty, Algerian security fears from certain countries have finally become legitimate. In this sense and to better express this situation, “The realities of international relations show that this practice was manifested in the inability of the U.N. Security Council to prevent NATO military intervention in Libya».[11] Consequently, a minimum of rapprochement of Algeria with BRICS seems essential, in particular that certain countries of this entity, such as Russia and China, had a joint reaction on any refusal of foreign interference whatsoever in the Algerian neighborhood. On the other hand, we present this idea of a common policy with the reservation because even within the member countries of this organization, the geostrategic external policies do not always aim at the subject of unanimity.[12]
For what has been said, can we consider the report made by a minority of the American parliamentarians in the future to have consequences similar to those of the Russian decrees by which the Russian Federation considered Donbass as part of its national territory on the eve of its annexation by military force?
2. Legal Criticism: NATO Southwest Mediterranean Conflict Incitement
First on board, it is known that the organization of international society is carried out by supra-national legal texts, although in reality, there is no real authority that takes precedence over that of the States. This means that the international institutions are found in a juxtaposed and non-hierarchical pattern and that their creation is only the result of an agreement between States, which explains the existence of a kind of solidarity between these international institutions, despite of their vocation, whether universal or regional.[13] To tell the truth, the application of an international text issued by an organization is the consequence of a state’s consent, which is reflected in the classic process of the signature, then the ratification of the same legal text. But what about a national text or judgement coming from an institution of a purely national nature and which pleads for the extraterritorial effect of a domestic law or decision?
This question on which we try to answer, concretizes the practical aspect of our article; in particular, that the writers of the report, coming from an American parliamentary minority guided by Mrs. Lisa McLaine, want to give it an extraterritorial effect. Specifically, they want to subtract international sanctioning authority by viewing it as part of a rather American national sphere. Before going any further with this analysis and watching over its consequences on the international scene, we prefer to pause before a few antecedents, whether it be a legislative or judicial act. On the history of this practice, it is important to examine some examples like the arrest warrant issued by a Belgian judicial court against a former senior official of the Democratic Republic of Congo, whose name is Yerodia.[14] The negative point in this case, which was decided by the International Court of Justice (ICJ), consists in the absence of any detail on the legality of the universal jurisdiction recognized by a Belgian national court. The reasoning of the ICJ was content to observe that this question was not contained in the final submissions of the Parties.
Even if the ICJ showed rigor when it attributed more importance to the primacy of the rules of international law to the detriment of their corrolaries of domestic law (Belgian legal rules relating to universal jurisdiction in criminal matters), some authors were a little skeptical and saw at the time in the position of the high international court a kind of hampering the development of international criminal law.[15]
On this same idea of universal jurisdiction that Belgium was criticized for, this country was finally convinced to remove this notion from its national legislation, and this time after a diplomatic incident with Israel following a Belgian attempt to try Ariel Sharon for crimes under international criminal law in accordance with this universal jurisdiction.
If Belgium ended up admitting the primacy of international law by renouncing the rules of universal jurisdiction in its national legislation, is this the case for other countries, especially Russia and the United States of America?
The answer is of course negative and we argue our opinion by the elaboration of the report coming from a minority of the members of the American Congress and which is the subject of this study, knowing well that Algeria counted until a period recently a trustworthy ally for the United States in its quest to fight terrorism. Yes, in this sense, the United States, which once drew up an anti-terrorism law (Patriot Act),[16] has completely changed its position towards new adversaries and always by legal means, which are legislative texts and reports.
In a similar step, the Soviet Union, which defended the principle of the proletariat in Eastern Europe and Afghanistan, this time preceded its war in Ukraine by a new legislative legal step consisting of considering the Donbas sheltering a strong Russian community as a territory divided between two independent republics of Ukraine. Again, Russia and by presidential decree, annexed Donbass and two other regions of southern Ukraine.[17]
In response, the United States, which has been quick to provide military support to Ukraine, has spared no legislative effort to put pressure on Algeria, Russia’s strategic ally located at the southwestern gate of the Mediterranean.
Have legislative texts become a means of instrumentalization and proliferation of wars?
Before answering this question, we will refer to two internal legal texts, one of which is American, the other is Russian.
Unfortunately, the condemnation of this practice, which results in the attack on the sovereignty of a member country of the United Nations by another more powerful one, and which is carried out through a presidential decree or by internal legislation, has not been criticized as strongly as towards Russia.
To clarify this observation, until now, the international society, which is very busy with the war in Ukraine and the gas crisis resulting from Russian countermeasures towards the EU, has considerably neglected the irresponsible practices of the Biden administration, which tolerates the steps aimed at sanctioning some countries. These are, of course, the countries that have traditionally counted in the pro-Russian camp, and this is the case of Algeria, which continues to be subjected to pressures of this type and of which the aforementioned report, directed by the congresswoman Lisa Mac Laine, is proof.
In this regard, if the tracing of the provisions and principles of international law has been done until now to the detriment of the Third World countries, from now on, the competition between the West and the new emerging Eurasian component will take the lead in changing this state of affairs. All that we have mentioned about the indifference of the leading states of the international community towards the UN Charter and those who prefer to take refuge in internal legislative or executive practices is only a maneuver to prolong conflicts in the world. In reality, the law has become a mere means of doing things for the great powers that are fighting in a world that is slowly transforming from monopolistic to multipolar.
Unfortunately, the legal follows the political, and thus the failure of certain legislative, executive, or even judicial bodies in a given country to respect the provisions of international law remains insufficient to justify the drafting of the report calling for sanctions against Algeria. It is thus a competition between the American theory of the intensification of conflicts traditionally supported by the old fox Kisenjer and that of a multipolar world defended by Dugin, who remains faithful to the return of the polar balance. We note that this theory has been strongly supported to explain the proliferation of conflicts in the world, but also been framed by other authors. Among these, we cite Avi Cober, who has attempted both to assess the crystallization of low-intensity theory and to consider how to bridge the gap between the importance of low-intensity conflict and hedging theory, if any.[18]
The explicit link between the report written on the initiative of Ms. Lisa McLaine in collaboration with other members of the American Congress, on the one hand, and the theory of low-intensity conflict, on the other, testifies to a practice that has become common and which is the politicization of the law. Unfortunately, the law has become a means that serves political ends, and we find this normal as long as the powerful States deviate more and more from the fundamental principles of international law, such as are enshrined in the Charter of the United Nations. As a result, we move from the internationalization of domestic law to the nationalization of international law through sanction by domestic texts, under the influence of a state policy within a powerful country.
To illustrate this situation which consists in the nationalization of international law, i.e. settle transnational, or even international, conflicts or disagreements between traditional entities of international law by the provisions of domestic law (legislation or parliamentary report as in our case), we insist on the qualification of the term “military activity” in some States, whose same operation is considered an act of war or even an actual invasion, violating the sovereignty of the invaded country.
The occupying or invading state most often pleads for military activity to the detriment of war,[19], which shocks people’s minds. By way of illustration, the Americans adopted the jargon “military activity” in Afghanistan, Iraq, Syria, and for any armed operation carried out by this country. And yet, the legal trace is not completely ruled out. The conception of military activities stems from the lack of precision of the international standard. Therefore, once it fails international compromise, the obligati
Climate Justice on Trial: Role of Nigerian Courts in Connecting the Dots between Climate Change and Violence against Women
Full text linkWhile growing scholarship has increasingly explored the gendered impact of climate change, the legal responses remain under-examined, particularly in Nigeria. Globally, climate change is a topical issue. The cause could be natural or man-made. While natural causes demand adaptation strategies, anthropogenic (man-made) ones require mitigation and accountability. Regardless of origin, it affects men and women but disproportionately burdens women and girls due to its intersection with gender inequality, human rights, and social justice. Consequently, it deepens existing inequalities and results in climate injustice. This worsens women’s gender-driven bad situation, making it a form of violence against women (VAW). Nigeria has signed agreements on climate change and human rights, which are expected to be reflected in domestic laws. The question is whether these recognize the peculiarities of women and consider climate injustice as VAW. This work examines the possibility of considering gender climate injustice as VAW and the role of courts in redressing it. It employs doctrinal research methodology from analytical, expository, and normative approaches, relying on primary and secondary sources of data. It found that the extant climate change laws are insufficient and neither gendered nor related to violence, leaving the courts to purposively connect the dots. To achieve substantive justice, it recommends that the courts must embrace the doctrine of ‘implicitly guaranteed rights’, enunciated by the African Commission on Human and Peoples’ Rights in the case of SERAC and Another v Nigeria. Nigerian courts have a critical role in ensuring climate justice by interpreting laws to bridge the gap between environmental harm and its gendered consequences.
Keywords: Climate change, climate injustice, human rights, courts, violence against women.
Introduction
Since the formation of the United Nations (UN) in 1945,[1] there have been global commitments to ensure the enjoyment of human rights. The idea that human rights are entitlements of all humans became preserved in the Universal Declaration of Human Rights (UDHR).[2] It set a minimum core standard for the enjoyment of human rights, and since then, the contours have consistently increased, beginning with the first generation-civil and political, to the second generation-socioeconomic to the third generation-developmental rights. Despite the different generations, there is a consensus that all rights are universal, indivisible, interdependent, and interrelated.[3] A learned author illustrates it in demonstrating that one can only enjoy the right to life, a civil and political right, if there is access to the right to health goods and services, a socioeconomic right.[4] These standard minimums are imbibed at the regional levels, for instance, in Africa, the African Charter on Human and Peoples’ Rights (African Charter) replicates them.[5] National constitutions are not left out; for instance, the Constitution of the Federal Republic of Nigeria 1999 (CFRN) contains human rights provisions.[6]
Human rights, being universal, are for everyone irrespective of sex or gender. Despite the UDHR’s use of the words ‘all human beings’, ‘everyone’, ‘all’, ‘men and women’, the Vienna Declaration insists that the human rights of women and girls are inalienable, integral, and indivisible parts of universal human rights.[7] This is understandable, being that women constitute 49.5 percent of the global human population, a figure too significant to be ignored.[8] In practice, women seem not to enjoy equal rights with men, thus the adoption of specific treaties like the International Convention on the Elimination of all forms of Discrimination against Women (CEDAW)[9] and its African regional counterpart - the Protocol to the African Charter on Rights of Women in Africa (Maputo Protocol).[10] Some countries have women-specific laws on women’s rights, while others have specific sections on women’s rights in their Constitutions.[11] Nigeria has neither but rather a general law that guarantees everyone’s rights.
Despite the interrelatedness of rights, none of the generations of rights seems to be most favorable to women. For instance, on civil and political rights, the right to life is guaranteed for everyone and not to be intentionally taken except in the execution of a court’s sentence. This clearly does not take into consideration maternal mortality (MM), which is rife as Nigeria ranks second highest globally.[12] An example of socioeconomic right is the right to health, in cases of reduced access to reproductive healthcare goods and services; women suffer grievous health consequences, including MM. A sample of third-generation or solidarity rights is the right to a healthy environment, the violation of which will affect the lives of men and women. Though this third group is plagued by challenges of clarity of content, duty bearers, and right holders, it can also result in MM in cases of sudden extreme climate change.[13] This makes MM a form of violence against women (VAW) because it affects only women, and the death does not result from court sentences. It also neglects the fact that these women die while performing a social function of giving life.
The environment plays an important role in the survival of human beings, as it can affect the quality of life of humans. This makes its protection beneficial to humans. Humans also need to be protected from elements of the environment that impact on dignified life. Climate is an important aspect of the environment that changes due to either natural or manmade means, causing humans untold hardship. When this happens, in Nigeria as well as most countries, women suffer more than men, in the form of health impacts, injury, and death.[14] This is due to their peculiarity of being in the care economy, thereby constituting VAW.[15]
While policy and development scholarship have begun to explore the gendered impacts of climate change, legal responses, especially those concerning violence against women, remain under-examined. Although the body of literature on climate change and gender inequality has expanded, there is still a limited systematic analysis linking climate injustice to the legal frameworks governing violence against women. Research has shown that majority of academic literature pertaining to this issue fail to integrate a true gender perspective in regards climate change,[16] often treating gender merely as an additional explanatory variable rather than recognizing it as a social or cultural construct that generates inequalities putting women at a much greater risk; this lack of a gender perspective could lead to misinterpretation and misguided recommendations for improving climate policies.[17] This paper addresses this critical gap by establishing a doctrinal foundation for recognizing gender-differentiated climate harms as a form of VAW and by outlining the role of courts in advancing this emerging field. It argues that if courts fail or neglect to connect the dots between climate injustice and VAW, they risk becoming complicit in perpetuating such violence. Consequently, this study is both timely and necessary, providing a legal and theoretical basis for understanding how environmental degradation and climate change intersect with women’s human rights and the state’s obligations to protect them.
This work is divided into five parts. Following this introduction is a section positing climate change justice and linking climate injustice to VAW. The third part traces the legal framework for recognizing climate injustice as VAW and how the courts can connect the dots. The fourth part looks at the factors affecting the recognition of climate injustice as VAW, thus impeding the enjoyment of such rights by Nigerian women, while the final part makes useful recommendations on tackling the identified challenges. This work concludes that where the courts fail or neglect to connect the dots between climate injustice and VAW, it becomes an agent in the perpetration of such violence.
Methodology
This study employs a doctrinal legal research methodology, integrating analytical, normative, and purposive interpretive approaches. This methodology is particularly appropriate given that the disproportionate impact of climate change on women, and its possible classification as a form of violence against women, represents a relatively novel and under-explored area of scholarship, with limited empirical data available. Doctrinal legal research provides a systematic framework for clarifying conceptual and normative issues, constructing an interpretive model for judicial engagement, and critically evaluating existing legal instruments. The primary objective of this study is to examine how gender-differentiated climate harms may be recognized as VAW within existing legal frameworks, and to assess the potential role of courts in reinforcing this conceptual and normative linkage.
The research draws on multiple sources of law and scholarship. Primary legal instruments include the 1999 Constitution of the Federal Republic of Nigeria, the Climate Change Act 2021, the Violence Against Persons (Prohibition) Act 2015, the African Charter, and other relevant national and regional legal norms. International instruments and soft-law sources include the CEDAW, the Maputo Protocol, the United Nations Framework Convention on Climate Change (UNFCCC), the Paris Agreement, CEDAW General Recommendation No. 37, and the Beijing Platform for Action. Judicial authorities such as SERAC v. Nigeria, Gbemre v. Shell, and Centre for Oil Pollution Watch v. NNPC are analyzed to illustrate State obligations in relation to environmental protection and the protection of human rights. Secondary materials comprise peer-reviewed academic literature, monographs, and research reports by recognized international institutions.
The study applies a gender-sensitive and intersectional analytical lens to reveal the mechanisms through which climate impacts intensify women’s vulnerability to violence and exacerbate socio-economic inequalities. Judicial decisions are examined using a precedent-based analytical model, while statutory and normative interpretation is guided by purposive, principle-based reasoning that foregrounds the indivisibility, interdependence, and universality of human rights. This research does not involve primary empirical data collection; rather, it systematically analyses legal, institutional, and secondary empirical materials to elucidate the relationship between climate impacts and VAW. By combining doctrinal analysis with critical normative reasoning, the study develops an interpretive framework that advances gender-responsive climate justice and strengthens the judicial recognition of gendered climate harms.
1. Theorizing Climate Change, Climate Justice, and Climate Injustice
Human existence within an environment presupposes an interdependent relationship. Human beings can, through their actions, contribute to the growth and development or the destruction of the environment. Climate, a part of the environment, is the long-term pattern of weather in a particular area, tracked for at least 30 years.[18] It changes slowly over hundreds or thousands of years by natural factors, human activities, and/or both. Natural causes include volcanic eruptions, ocean currents, the earth’s orbital changes, solar variations, and internal variability.[19] Human-related factors include: transportation, electricity generation, industrialization, mechanized agriculture, development of oil and gas, building, deforestation, and lifestyle choice, among others.[20] In view of human factors, industrialized nations would contribute more to climate change, but with globalization, other countries that neither contributed to the causative factor nor benefited from the industry will partake in the effect, which amounts to climate injustice, entitling them to reparation.[21]
Nigeria’s climate is mainly tropical.[22] Signs of climate change include extreme flooding,[23] unpredictable rainy seasons, and air and water pollution.[24] The effects are enormous; for instance, flooding has destroyed schools, making it impossible for children to go to school, displaced people, destroyed farms, leading to food insecurity and unemployment for farmers, making them soft targets for recruitment by insurgents.[25] It affects health, fuels domestic violence, and is worse on the vulnerable, including children, the elderly, and pregnant women.[26] Like most countries, Nigeria experiences natural and human factors related causes. Of the human-related causes, the chief ones include gas flaring[27] and deforestation,[28] and both are eradicable. All these can be largely categorized as environmental violence, defined by the Committee on the Elimination of Discrimination Against Women (CEDAW) as any “form of environmental harm, degradation, pollution, or State failures to prevent foreseeable harm connected to climate change”.[29] The catalysts for this violence often arise from the failure of states to address climate change impacts or state and corporate actions that cause environmental degradation, revealing shortcomings in international and domestic law to hold perpetrators accountable.[30] Government-authorized degradation of the environment through contracts with corporations is one major form of environmental violence that results in gendered harm; this harm triggers mass migration due to the destruction of land and forced removals, leading to increases in violence against women.[31]
Climate justice recognizes the impact of climate change on those who are the least responsible for it by tackling the root causes. Nigeria is among the top seven countries flaring gas, even though the gas could be put to better use.[32] She has shifted the date for its stoppage several times, suggesting that the government might not be interested in stopping it. This stance is fortified by the fact that the Nigerian state owns a 50 percent shareholding of the oil venture, which makes the government both a polluter and a beneficiary. Such contradictions reflect structural climate injustice: the state profits while citizens, especially women, bear the costs.
Globally, evidence reinforces that gender equality strengthens climate resilience. A 2022 cross-country study covering 146 nations found that every 1% rise in gender equality correlates with a 0.6% improvement in climate adaptation capacity, primarily due to greater readiness and lower vulnerability.[33] Conversely, each 1% increase in gender inequality leads to a 0.5% decline in adaptation.[34] Education equality, in particular, was identified as the strongest driver of climate readiness.[35] These findings highlight that empowering women through education, participation, and equitable access to resources is not only a matter of justice but a practical necessity for effective climate action. In Nigeria, where women disproportionately experience the social and economic fallout of environmental degradation, closing gender gaps is therefore essential to achieving true climate justice and resilience.
1.1 Linking climate injustice to violence against women (VAW)
The consequences of climate change are not distributed equally; a significant body of research indicates that women are subject to its most severe effects.[36] This disparity is deeply rooted in societal structures; cultural norms often assign women primary responsibility for tasks such as securing water, fuel, and food, or performing home care; these rely heavily on natural resources, making them exceptionally vulnerable to environmental instability.[37] This vulnerability is intensified by economic and infrastructural factors. Women generally spend more time in the home managing care duties, heightening their dependence on domestic energy. Concurrently, lower rates of private vehicle ownership mean they rely more heavily on public transport systems.[38] Furthermore, a persistent income gap translates into a higher incidence of energy poverty among women; this financial barrier makes it significantly more difficult for them to adopt sustainable alternatives, such as investing in renewable energy or energy-efficient upgrades.[39] This situation is particularly unjust given that women\u27s consumption habits have historically accounted for a smaller portion of the greenhouse gas emissions driving the climate crisis; compounding the issue, the very groups most exposed to climate impacts, including women, are also the most likely to be negatively affected by flawed or badly designed climate policies; in short, women’s disproportionate risk is a product of their greater exposure during severe climatic events, their frequent reliance on low-technology agriculture, and a systemic lack of resources and power.[40]
Another instance of the adverse effect of climate change on women is when climate change changes the rainfall pattern, and women and girls, who are mostly responsible for collecting and managing household water, undergo enormous difficulty in getting water. In confirmation, the UN reported that women in sub-Saharan Africa annually spend 40 billion hours fetching water, equivalent to the annual labor worth of the entire workforce in France.[41] Further, where people are compelled into camps due to climate change, women suffer indignity in the form of being victims of ‘sex for food’.[42] These demonstrate that climate change is not gender neutral but disproportionately affects women. It could invariably be said to mete out injustice on women. Researchers, policy makers, and climate change scientists have been trying to link climate change to gender and social inequity.[43] However, the link is yet to be concretized by the UN, but the UN Women have lent their voices in calling for that recognition.[44]
Seeing that climate change results in injustice to women by increasing their burden, though they did not cause it, is it a form of VAW? The United Nations Declaration on the Elimination of Violence against Women, (UNDEVAW), the first international instrument to unequivocally address VAW, defines it as ‘any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life’. Climate change extremely affects women simply because of their sex and or gender. It inflicts physical harm when a woman dies, for instance, in cases of MM due to the effects of weather changes on pregnant women. It becomes sexual harm when a woman endures rape due to climate change, for instance, when climate change forces people to move into camps, and women are subjected to ‘sex for food’. It becomes psychological when a woman is dehumanized as a result of climate change. This can happen in the privacy of homes or in the community. It follows that government or state actors can be held responsible. Relying on the foregoing, this work argues that climate injustice constitutes VAW.
1.2 Specific forms of VAW exacerbated by climate change
Climate change, often acting as a threat multiplier, exacerbates pre-existing gender inequalities and social stressors, leading to a spike in various forms of violence against women during and after climate-related disasters, crises, and displacement. Specific forms of violence exacerbated by climate change include:
a. Intimate partner violence (IPV) and domestic abuse
Intimate Partner Violence and domestic abuse, overwhelmingly borne by women, tend to increase climate-induced disasters and are characterized by the UNDEVAW adopted on 20 December 1993 by General Assembly resolution 48/104, this violence is characterized as a continuum of harmful behaviors ranging from control and psychological abuse to physical and sexual violence that occur within the family or domestic setting and are commonly perpetrated by a current or former intimate partner.[45] This violence manifests in multiple forms: physical abuse and violence have been documented during both slow-onset crises, such as droughts in Australia and sub-Saharan Africa, and sudden-onset events such as hurricanes, cyclones, and bushfires[46] psychological and emotional abuse rises as disaster exposure and declining resources generate stress, leading to increased emotional harm[47] intimate partner femicide, or the murder of women by partners or family members, has shown heightened risk following heat waves[48] spousal battery often escalates due to disaster-related tensions and economic insecurity caused by climate change;[49] and general domestic violence frequently increases during post-disaster reconstruction phases, as observed after Hurricane Mitch in Nicaragua and Honduras,[50] where stress from climate extremes aggravated household conflict and VAW risks.
b. Sexual violence and exploitation
Sexual violence and exploitation of women, which are highly documented in emergency and displacement settings during climate-related disasters, are exacerbated by resource scarcity and lack of security, exposing women and girls to multiple overlapping risks. Rape and sexual assault rose significantly among women displaced after Hurricane Katrina, including cases of intimate partner rape, while women and girls forced to walk longer distances in search of food, water, or firewood became especially vulnerable, as seen in reports of rape following the 2007 Gizo tsunami in the Solomon Islands.[51] Sexual harassment is also widespread, particularly in disaster contexts where women and girls are targeted in cyclone shelters while accessing sanitation facilities or during floods,[52] where unemployed men loiter and harass adolesc
Dark Legacy of Zero Tolerance in Georgia (Criminal Punishment and Sentencing)
Full text linkFollowing much-praised promises to reduce crime to zero Georgian Government in 2004 imposed a “zero tolerance” policy embodied in both criminal legislation and legal practice. The fateful phrase “No probation! Everybody to the prison!” explicitly indicated the way of thinking of government officials at that time. This, of course, primarily affected regulations on criminal punishment and sentencing. Unfortunately, the principle of proportionality was largely disregarded, and the goals of punishment were narrowed. In 2012, the new government faced all the consequences of such a one-sided approach – overcrowded prisons, massive human rights violations, etc. As expected, the policy was largely revised. Some radical regulations were repealed. For example, a judge was allowed to use absorption or partial addition of punishment when imposing a sentence in the case of cumulative crimes and cumulative sentences. Sadly, many instances of punishment, such as conditional sentence, imposing more lenient sentences than provided for by law, etc., remain unchanged, presenting the dark legacy of zero tolerance policy.
Keywords: Punishment, sentencing, proportionality, zero tolerance.
Introduction
It is fair to say that Georgian criminal law has seen good, bad, and ugly for the last hundred years. The first two decades (1921-1941) of soviet occupation can safely be defined as the dark age. Both criminal legislature and justice system were oriented to simply punish as many people as possible and as severely as possible, ignoring even the nullum crimen sine lege principle. It is not surprising that such repressions in the 1920s and 1930s left a bleeding wound on both the state and society. Nevertheless, from the late 1950s, Georgian legal scholars once again aimed to implement a more elaborate approach. Namely, the principle of proportionality of criminal liability and punishment was reintroduced in and implemented in the Criminal Code of Georgia of 1960. After Georgia regained its independence, the new Criminal Code of 1999 became even more based on proportionate punishment. This consistency was broken in 2004 when the new government declared a “zero tolerance” policy. Step by step Criminal Code was amended to make punishment more and more severe, even when it was not necessary. The judge was left with fewer and fewer freedom in terms of sentencing. While some short-term gains were achieved, overcrowded prisons and massive human rights violations became more than apparent. Overall, things were so bad that in 2012, the newly elected parliament was faced with the need to pass a sweeping amnesty and simultaneously revise the Criminal Code. Since then, many radical regulations have been revised. The purpose of this article is to clarify whether Georgia has finally overcome this issue or still has to deal with the dark legacy of zero tolerance.
Since between 2004 and 2012 Criminal Code of Georgia was amended 93 times, this article cannot cover all of the amendments. Instead, it is primarily focused on the most important general provisions of punishment and sentencing since these are the ones that have the greatest impact on the outcome.
Methodological Base
Criminal punishment has come a long and thrilling way in evolution from simple revenge to a modern, elaborate concept.[1] The most ancient idea behind punishing someone was built around the offender him/herself. On the other hand, the modern concept is much more mature and targets the entire society. Moreover, it sets specific goals for punishment that need to be achieved. Generally speaking, these are retribution and crime prevention. More specifically, they are divided into several sub-goals, but eventually they all aim to bring two things into society: justice and social good. They are recognized not only by the overwhelming majority of legal scholars but are also directly prescribed in the law. Namely, §1 of Article 39 of the Criminal Code of Georgia indicates that: “The goal of a sentence is to restore justice, prevent repeated commission of a crime and re-socialize the offender”. Since these goals are set, every decision regarding punishment and sentencing should be focused on achieving those goals. Respectively, any idea or concept around punishment and sentencing can be and should be analyzed through the prism of retribution and crime prevention. If the idea itself initially contradicts these goals, it is not surprising that the result may seem unsatisfactory. On the other hand, if an idea is more likely to assist in achieving these goals, it is more likely to be acceptable. Since the present article primarily focuses on issues of punishment and sentencing, it would be simply a shame to ignore these very goals.
Since ancient times until quite recently, revenge on the offender has been the main idea of criminal punishment. According to theories of Kant and Hegel, punishment should compensate for the criminal’s culpa. Punishment should serve fairness instead of social good.[2] These are often referred to as absolute theories. Kant and Hegel claim that criminal conduct breaches the law; therefore, punishment must be, first and foremost be perceived as a just retaliation for it. Things like social good or expediency of punishment are completely rejected, and the issue is solved purely based on morality. Being immoral, the criminal opposes his will to the law. Therefore, through his action law becomes breached. Consequently, punishment is the means of restoration of what he/she has breached. Hegel rejects the concept of the deterrence effect of punishment combined with the goal of re-education. He argues that since man has free will, the threat of punishment and the attempt to re-socialize him/her would mean reducing him/her to the level of an animal. Kant directly refers to the Talion principle − “An eye for an eye” – and argues that a criminal must be punished since he/she deserves punishment due to what he/she has committed.[3] Sometimes, absolute theories are named theories of retribution. Utter denial of utilitarian ideas brings the offender to the punishment which he/she simply deserves for what he/she has done, and no one cares whether it is socially expedient or not.[4] In this regard, absolute theories are oriented towards the past.[5] Despite their popularity among the people, absolute theories met resistance from some scholars. Beccaria claimed that criminal sentencing based purely on retribution is wrong. He pointed out that punishment must have an exact proportion to the magnitude of the evil that the criminal has committed, make the strongest and most lasting impression on the mind, but be the least painful to the sensibilities of the unfortunate.[6]
The evolution of legal science and consistent retreat from pure retribution made possible the invention of more socially oriented theories commonly known as relative theories. These were based on the idea of expediency instead of morality.[7] Revenge was largely disregarded. Instead, social benefit was considered the main goal, and it was to be achieved through the prevention of crime.[8] In that regard, relative theories became oriented towards the future.[9] Furthermore, two main types of crime prevention were developed.
The first type of prevention developed by List is specifically oriented towards the offender. Therefore, it is commonly known as the concept of special prevention. There are two subtypes of special prevention. Negative special prevention aims to isolate the most dangerous criminals from society and thus protect it.[10] Positive special prevention intents to influence the offender in the right way to prevent him/her from committing another offence in the future.[11] This theory has been much hailed and greatly contributed to the introduction of such important provisions as alternative measures to criminal punishment, parole, etc.[12]
The other type of crime prevention is oriented towards the entire society. It is commonly known as general prevention and was developed by Feuerbach. The main priority here is to influence and deter those individuals who are thinking about committing a crime but have not developed an intent yet. Deterrence is to be achieved through a threat of punishment. Simultaneously, general deterrence is reinforced by sentencing an actual offender. Hesitant individuals should take it as an example and give up criminal thoughts for good. This subtype of general prevention is often referred to as negative general prevention.[13] On the other hand, positive general prevention aims to win the hearts and minds of citizens instead of deterring them. Once an actual offender is sentenced, it instills confidence among citizens, building trust in the integrity and effectiveness of law enforcement in society.[14]
All these theories have been criticized over and over again.[15] The biggest problem was that each of them concentrated on a particular issue and failed to grasp the subject entirely.
Finally, the goals of punishment were systematized as non-utilitarian and utilitarian goals.[16] Based on this system, new unified theories of punishment were developed. Instead of focusing exclusively on one goal, they managed to collect all the good theses put forward by absolute and relative theories. Hence, both non-utilitarian and utilitarian goals are acknowledged at the same time. Adepts of unified theories think that none of the goals guarantees the necessary result on its own. Indeed, instead of picking one, it is possible to combine the best thesis of all three into one unified theory.[17] Of course, it was not done overnight. It took time and effort.[18] It was indeed uneasy since, at first glance, non-utilitarian and utilitarian goals of punishment contradict each other.[19] The state must punish the offender and take revenge on him/her because it is fair and he/she deserves it. At the same time, the state should take care of the criminal, mitigate the punishment if possible, and create a chance for rehabilitation. Despite seeming contradiction, these goals create dialectical unity and complement each other. As Hälschner once noticed, although punishment must serve a multitude of goals, its nature is not determined by one or another of them, not even the majority of them. It is determined by only the absolute goal – justice, since it is truly fair and automatically serves all the relative goals.[20]
Since clarity on methodological basis has been achieved, it is time to analyze specific amendments on punishment and sentencing made to the Criminal Code of Georgia and understand to what extent they contribute to achieving the goals of punishment.
Regulations on Punishment and Sentencing
First of all, it should be noted that these elaborate goals of punishment do not make a judge’s life easier. They require strict adherence to the principle of proportionality of punishment. For some people, proportionality itself seems unattainable. The judge must take into account all important mitigating and aggravating circumstances of the criminal case and impose a proportional sentence. Of course, the task becomes even more difficult when one realizes that he/she needs to achieve proportionality essentially across all five sub-goals of punishment at the same time.[21]
The significance of proportionality of punishment is dictated by the goals of punishment themselves. It is not even so much about the contradiction between non-utilitarian and utilitarian goals. It’s about different approaches that these goals require and also about the balance between them. Retribution is about strictness to the criminal. It is about punishing the criminal as he/she deserves due to the seriousness of the crime he/she committed. Therefore, if the sentence is not severe enough, retribution may not occur. On the other hand, positive special prevention is more about perception and even compassion for the criminal to clear his way back into society. It’s about imposing a sentence that is enough for the re-socialization of the offender. Therefore, if the sentence is too harsh, it may be counterproductive and further alienate the offender from a law-abiding society. Based on the above, the sentence must not be too lenient and not too severe. It must be proportionate. Yes, not all five goals have the same weight all the time. Sometimes one of them can become more important than the others. For example, in cases of juvenile offenders, retribution is completely rejected while crime prevention, especially positive special prevention, is a full priority. What if a criminal deserves five years of imprisonment due to the seriousness of the crime he/she committed, but at the same time, three years of imprisonment are enough for him/her to re-socialize? In this case, the judge him/herself must choose which goal is more important – retribution or special crime prevention, and carefully tip the scales in favor of one of them. Anyway, it is extremely important to keep in mind the significance of proportionality and balance between strictness and leniency.
Despite all these difficulties intention of Georgian lawmakers in 1999 on this matter was pretty apparent. Firstly, Article 40 of the original Criminal Code of Georgia of 1999 provided for as many as ten types of punishment. Such diversity certainly contributed to better individualization of punishment, thereby achieving proportionality. Article 41 provided basic and supplementary punishments, making sentencing even more flexible. §3 Article 53 obliged the judge to take into account specific mitigating and aggravating circumstances such as the motive and goal of the crime, the unlawful intent demonstrated in the act, the character and degree of the breach of obligations, etc. However, amendments made since 2004 paint a completely different picture.
Imposing a Sentence in the Case of Cumulative Crimes and Cumulative Sentences
Article 59 of the Criminal Code of Georgia, adopted in 1999, contained three options for punishing a cumulative of crimes: absorption, partial addition, and full addition (cumulative punishment). In case of two or more less serious[22] offences, more severe punishment would absorb the less serious punishment(s). This provision was amended in 2000 so that partial and full addition of punishment was also allowed. At the same time final sentence could not have exceeded 5 years.[23] In case of two or more serious or particularly serious crimes, the punishments imposed for each crime individually would have been partially or fully added up. Plus, the term of imprisonment imposed as a final sentence could not have exceeded 25 years. In case of less serious and serious crime or less serious and particularly serious crime, absorption as well as partial addition and full addition were allowed. Plus, the term of imprisonment imposed as a final sentence could not have exceeded 20 years. At first glance, these provisions were indeed intended to promote the goals of punishment. It would allow the judge to consider all the mitigating and aggravating circumstances of the case and impose a proportional sentence.[24]
In 2006 Parliament of Georgia adopted an amendment to Article 59. According to the new regulation, in case of cumulative crimes, the punishment had to be imposed for every crime individually and then added up (aggregate sentence). Hence, neither absorption nor even partial addition was available to the judge anymore. At the same time, Article 50 of the Criminal Code of Georgia was also amended, and the possible term of imprisonment imposed as a final sentence was increased from 20 to 30 years.[25]
As mentioned above, in 2012 newly elected Parliament of Georgia faced the necessity to declare an amnesty for a vast number of prisoners.[26] Parliament also had to rethink the approach to the subject of imposing sentences in cases of cumulative crimes.[27] New law allowed judges much more freedom. According to the new law, in every case except for recidivism more severe sentence shall absorb a less severe sentence. In case of recidivism,[28] when imposing a final sentence for cumulative crimes, a more severe sentence shall absorb a less severe sentence or the sentences provided for these crimes shall be added up in part or in full. In the case of recidivism, the term of imprisonment imposed as a final sentence may not exceed 30 years.
From the perspective of retribution, this 2013 change makes things significantly better. As mentioned above, retribution is about punishing the offender for what he/she has committed. e/she gets punished because he/she deserved it. So instead of simply adding up the sentences for individual crimes, it’s better to think about how severe the punishment the criminal deserves. For example, one individual has committed theft by illegal entry into a dwelling place three times. Each time he/she stole 200 GEL (68 EUR), overall 600 GEL. This criminal would face 4 to 7 years of imprisonment for each offence. If there were only full addition available, he/she would face 12 to 21 years of imprisonment. At the same time, another person who committed homicide (intentional killing) would face 7 to 15 years. Does this thief who stole 600 GEL deserve more severe punishment than a murderer? Well, maybe… maybe not. At least a judge should have the right to answer this question, and if the answer is “no”, he/she should be able to apply absorption. Although there is also a significant risk of unfairness. Since the judge can’t apply partial or full addition unless there is recidivism, some people may receive undeserved leniency. If an offender has committed a series of crimes, for example, 15 episodes of fraud. If this criminal doesn’t have recidivism, he/she will face only absorption as if he/she had committed only one episode.
In terms of special prevention, the current regulation is even more significant. It allows the judge to properly individualize the sentence, thus supporting the proportionality of punishment and greatly supporting the re-socialization of the offender. Although recidivism should not be a prerequisite for at least partial addiction, as discussed earlier. Some criminals may need partial addition of sentences to properly re-socialize.[29]
As for the general prevention, the current approach has slight problems. Since general prevention relies largely on the threat of punishment, i.e., the deterrence effect, using absorption instead of partial or total addition may not always be effective. For example, an offender has committed a series of crimes, 15 episodes of fraud, and gets punishment only for one. Such a sentence will not have a deterrence effect on the members of society who think about committing a crime. For most of them, this will be a signal of the possibility of evading responsibility. Thus, the judge should have the right to apply at least partial addition even in cases where there is no recidivism, but there is a need to impose a more severe punishment for general prevention. In general, recidivism is not always a good prerequisite for partial or full addiction. The original (1999) regulation was better than the current (2013) regulation in terms of both specific and general prevention, as it allowed for a more sophisticated approach instead of simply setting a single precondition, such as recidivism.
Overall, it is fair to say that the current revised (2013) provisions on imposing a sentence in the case of cumulative crimes and cumulative sentences are much more focused on the goals of punishment. At least the overt radicalism that characterized the zero-tolerance policy is no more. At the same time, undoubtedly, a more detailed differentiation is needed to prevent unjust sentences in the future.
Imposing a More Lenient Sentence than Provided for by Law
The original 1999 Criminal Code of Georgia introduced a mechanism allowing a judge to impose a more lenient sentence than provided by law if there was a particularly mitigating circumstance in the criminal case.[30] The judge should also have taken into account the personality of the offender him/herself. This provision was consistent with the legislative intent present in 1999. As mentioned above, the goals of punishment require strict adherence to the principle of proportionality. This is usually achieved by individualization of punishment. The judge weighs all the mitigating and aggravating circumstances present in an individual criminal case and imposes the most proportionate punishment. But a judge can’t be given absolute power. The measure or term of punishment can’t be fully dependent on the judge’s opinion. To prevent legal voluntarism, legislator implements the principle of differentiation of criminal liability and punishment. In the special part of the Criminal Code, offences are differentiated from each other. For example, a theft i.e. secretly taking another person’s movable property for its unlawful appropriation[31] is to be punished by imprisonment for a term of one to three years; The same act committed by illegally entering a building or other storage facility[32] is to be punished by imprisonment for a term of three to five years; The same act committed with a preliminary agreement by a group[33] is to be punished by imprisonment for a term of four to seven years; The same act committed by an organized group[34] is to be punished by imprisonment for a term of six to ten years. Specific offences are differentiated due to the level of social danger that they pose. Each of them gets their minimum and maximum term of punishment. For example, an individual is found guilty of theft committed by illegally entering a building or other storage facility. Accordingly, he/she faces three to five years of imprisonment. This is due to the fact that the act he/she committed represents such a degree
Interpretation of Marriage Law Determination: An Analysis Study of the Adult Age of Marriage in Indonesia
Full text linkThis study addresses the implementation challenges of Indonesia’s Law No. 16 of 2019, which amended Law No. 1 of 1974 regarding marriage. The previous law set minimum marriage ages at 19 for men and 16 for women; the 2019 amendment raised the minimum age for women to 19, standardizing it for both sexes. A key issue highlighted is that this legal age limit may not fully account for the necessary biological, sociological, and other preparations essential for marriage, despite the aim of legal reform to protect family integrity. The research specifically focuses on the implications of this minimum marriage age from the perspective of Islamic law. Using a qualitative, descriptive-analytical library research method with an Islamic law approach, the study examines the differing views on the concept of maturity for marriage. The findings indicate that while the previous age of 16 for women was often considered adolescence in terms of overall maturity, the new legal age of 19 for both men and women is generally regarded as adulthood and deemed prepared for initiating family life within the framework of Islamic law.
Keywords: Interpretation, legal determination, marriage, adult age.
Introduction
The existence of Islamic family law, especially in the study of limiting the age of marriage, is endless and deserves to be discussed from time to time, but it also attracts the attention of legislators, academics, and family law observers who study it from their respective scientific perspectives. However, studying in depth the modernization of Islamic family law through the issue of the age of marriage in Indonesia, of course, cannot be separated from the study of the social history of Islamic marriage law which has been recorded in the study of Islamic law.[1] In the renewal of Islamic family law, it is necessary to explore the important aspects behind the social dynamics in the discussion of Islamic family law.[2] The Islamic family law justice system, as one part of the national legal system project.[3] This can be seen based on the dynamics of the legislative process carried out by the government, although at the beginning of independence, the government was not very concerned with Islamic judicial institutions. As a result, the government, which only regulates marriage administration issues, has an impact on the practice of family law, which is still directly proportional to the existing law.[4]
The strengthening of understanding of law as a tool of social engineering and supported by legal instruments that have existed before, has an impact on the increasingly active government in issuing legal products in the form of regulations on family law. One of its achievements is the enactment of the Marriage Law No. 1 of 1974 concerning marriage.[5] In this regard, the government has succeeded in articulating the important elements in the practice of Islamic family law into the standard legal language that has until now been applied nationally. The context of the initial period of enactment of the Marriage Law above, in historical records also cannot be separated from its socio-historical context.[6] On the one hand, this is due to the still strong taklid attitude of some Indonesian people towards certain schools of thought, while on the other hand, the position of Islamic law in the context of the state always reaps polemics, especially in the stage of state ideological debate, so that Islamic law seems to be at the midpoint between the paradigms of the state religion and state paradigm.[7] The development of the paradigm that the legal function is effective as a means of social engineering above, has made the state’s efforts through the Marriage Law successful in changing several things related to the practice of marriage in Indonesia, including the issue of the age of marriage.
In historical records, the application and uniformity of the minimum age for marriage in Indonesia, initially, wanted to be regulated through the contents of Article 7 paragraph (1) of the 1973 Marriage Law which states that the minimum age for marriage is 21 years for men and 19 years for women.[8] However, because this draft law has drawn debates that are prone to conflict, it has to be postponed. This ended in the official stipulation of the 1974 Marriage Law, but with minor changes, especially regarding the determination of the age of marriage, which finally had to be lowered through Article 7 paragraph (1). The state stipulates that marriage is only permitted if the man has reached the age of 19 years and the woman has reached the age of 16 years.[9]
The provisions in fiqh explain that the age of marriage is different from the provisions of the legislation in Indonesia, which stipulates the age of marriage in the same marriage law as 19 years, based on the decision of the Constitutional Court.[10] In view of the rules governing the age of marriage in the Law of the Republic of Indonesia Number 1 of 1974, as well as the Compilation of Islamic Law, the regulations in the legislation need to be obeyed by all levels of Indonesian citizens.
Along with its development, in 1991, the regulation on the age of marriage in the 1974 Marriage Law was again clarified and strengthened by the emergence of the Islamic Law Compilation.[11] With the same editorial, through Article 15 paragraph (1) and (2) Complications of Islamic Law, the state stipulates that a Muslim who wants to marry must be at least 19 years old for men and 16 years old for women. If you do not meet this age requirement, in accordance with Article 7, paragraph (2) of the Marriage Law, the prospective bride and groom can request a dispensation from the religious court.[12] The debate about the age limit of children where a person is considered an adult in the context of marriage is related to readiness and maturity, not only physically, but also psychologically, economically, socially, mentally, religiously, and culturally. This is because marriage at an early age often poses various risks, both biological risks, such as damage to reproductive organs, as well as psychological risks. The ambiguity in determining the limits of normative adulthood occurs because there are different legal perspectives on the problems that develop in society at all social levels.[13]
The issuance of Law No. 16 of 2019 on the amendment of Law No. 1 of 1974 concerning marriage has provided great benefits, where initially 16 years for women and 19 years for men have changed to 19 years for men and 19 years for women.[14] This should be appreciated because the struggle to revise Law Number 1 of 1974 has been approved by the Constitutional Court. Thus, the age provisions set by the Constitutional Court of 19 years for men are considered to have reached maturity in their attitude, capable of acting, maintaining, and being responsible for their actions. Meanwhile, a 19-year-old woman is considered to be an adult and able to run a household.
The revision of Article 7 regarding the age limit for marriage in the Marriage Law has become a serious focus on at least four things. First, to prevent early marriage, which has a further impact on the occurrence of pregnant women and childbirth at a young age, which poses a high risk to the health of pregnant women and childbirth; as well as early marriage in the context of psychological mental readiness of married couples who are feared to be at high risk of divorce rates. Second, to protect the rights and interests of children, given that, according to Law no. 23 of 2002, as the implementation in the Convention on the Rights of the Child, it is stipulated that what is meant by children is up to the age of 18 years. Third, considering the sociological readiness of the couples to become an autonomous family in the midst of society. Fourth, paying attention to economic readiness in relation to the complexity of household needs today, which increasingly require careful planning.[15]
In formal juridical terms, the age limit for marriage in Indonesia is regulated in the Marriage Law No. 1 of 1974 and the Compilation of Islamic Law.[16] In the law there is an article that determines the age limit of a man and a woman who will carry out a marriage, which is contained in Article 7 Paragraph 1 which states that marriage is only permitted if the man has reached the age of 19 years and the woman has reached the age of 19 years old. Avoiding the unequal age limit of men and women in marriage, giving encouragement and role models regarding the revision of the Marriage Law, the first step in realizing to carry out togetherness in order to protect the rights of children in Indonesia.[17] This method prioritizes togetherness and closeness to children, so that making decisions regarding children’s rights is the responsibility of the parties involved. From that, reforming the age of marriage in the marriage law is the basis for upholding justice in the existing law in Indonesia.
Thus, to reform the limitation on the age of marriage, there is something that needs to be considered, namely, the existence of equality at the age of adults in the Law of the Republic of Indonesia. Adult age, if still based on the Law of the Republic of Indonesia Number 23 of 2002 concerning protecting children, is eighteen years old, Therefore, the minimum age limit of 16 years for women and 19 years for men to get married, as stated in the Marriage Law and the Compilation of Islamic Law, was changed to 19 years for women and 21 for men. The principle of prioritizing the best interests of children in every decision-making concerning children is the obligation of all parties.[18] Therefore, reconstructing the age of marriage in the marriage law is a concrete step as an effort towards Indonesian law enforcement, support and demands for the revision of the marriage law is a manifestation of the joint efforts of the citizens of this nation to save the future of Indonesian children, because children are only entrusted and a gift from God. The chronological explanation of the age of marriage problem above indicates that the age of marriage is a complex problem. This issue is not only a concern of the state, but also a separate concern for activists, academics, and institutions.
Discussion
The Essence of Marriage
The term marriage in the Marriage Law Number 1 of 1974, Article 1, paragraph 2, marriage is defined as an inner and outer bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family, household based on the One Godhead.[19] Meanwhile, according to the Compilation of Islamic Law, as contained in article 2, it is stated that marriage in Islamic law is marriage, namely a very strong contract or miṡāqan galīẓan to obey Allah’s commands and carry it out is worship.[20] Meanwhile, according to Anwar Hafidzi and Mohd Hatta Mohd Hani, it means that the word marriage is a translation of the words nakaha and zawaja.[21] These two words are terms in the Qur’an to refer to marriage.
In the context of human creation, Allah SWT created His creatures in pairs based on the sunnatullah. In this regard, Marcia Inhorn views marriage as making a person have a partner.[22] The word of God in the letter al-Żāriāt, verse 49 reads:
“And we created everything in pairs so that you may remember the greatness of Allah”.
This is confirmed by Allah in the Qur’an Surah al-Nisa’ verse 1, which reads:
“O mankind, fear your Lord who created you from a single person, and from him Allah created his wife; and from both of them Allah has produced many males and females. and fear Allah who by (using) His name you ask one another, and (maintain) friendly relations. Verily, Allah is always watching over you”.
Scholars define marriage in different syar’i terms. Beni Ahmad Syaebani quoted the opinion of Slamet Abidin and Aminudin, detailing several meanings of marriage according to several scholars, namely:[23]
Hanafi scholars define marriage or marriage as a contract that is useful for having mut’ah on purpose. This means that a man can control a woman with all his limbs to get pleasure and satisfaction.
Syafi’iyah scholars say that marriage is a contract using the pronunciation of nikāh or zauj, which has the meaning of possessing. This means that with marriage, a person can get pleasure from his partner.
Malikiyah scholars say that marriage is a contract that contains mut’ah to achieve satisfaction by not requiring a price.
Hanabilah scholars say that marriage is a contract by using inkāh and tazwīj pronunciation to get satisfaction. That is, a man can get satisfaction from a woman and vice versa. In this sense, there are words belonging to the meaning of the right to own through a marriage contract. Therefore, husband and wife can take advantage of each other to achieve life in their household, which aims to form a sakinah mawaddah wa rahmah family in the world.
However, the Hanafi, Malikiyah, Syafi’iyah, and Hanabilah scholars have different opinions in giving the connotation (emphasis) on the ownership issue caused by the existence of the contract. For Hanafiyah scholars, the marriage contract has the consequence that the husband has the right to have pleasure (milk al-mut’ah) from his wife. For the Syafi’iyah scholars, the contract results in the husband having the opportunity to do waṭi’ (intercourse) with his wife, while according to Malikiyah, the contract results in ownership for the husband to get delicacy from his wife. Meanwhile, Hanabilah scholars emphasize the take and give aspect of the benefits of the marriage contract for husband and wife.[24]
In terms of the practice of worship, marriage is a sunnah practice that is firmly prescribed by the Qur’an and the Prophet Muhammad, in line with sexual character and in accordance with a lawful and clean channel to obtain offspring who can maintain self-respect, joy of heart. , and inner peace. This small understanding refers to several provisions of fiqh and positive law in the form of the age of the bride and groom at marriage, namely, the child who is not yet mature and is not psychologically ready to carry out household responsibilities.[25] Because the provisions of fiqh are qualitative. In addition, marriage is the path chosen by God for His creatures, especially humans, to reproduce and preserve their lives. In this regard, Allah SWT created humans not only in their perfect physical form but also equipped with software in the form of natural basic sexual instincts, the need for a partner, and feelings of affection for the opposite sex.[26] Therefore, Allah also provides it with suggestions, commands, and prohibitions so that humans can manage the software in the form of marriage.
The Urgency of Marriage Age in the Islam Perspective of Imam Madhhab
Islamic law does not regulate the minimum age limit for marriage. The absence of religious provisions regarding the minimum and maximum age limits for marriage is assumed to provide leeway for humans to regulate it.[27] The Qur’an indicates that the person who is going to get married must be ready and able. The word of God in QS. al-Nūr: 32:
“And marry those who are alone among you, and those who are worthy of marriage from your male slaves and your female slaves. If they are poor, Allah will enable them with His bounty. And Allah is Extensive (His gift) and All-Knowing”.
Furthermore, the Messenger of Allah, in his words, advised young people to carry out marriages on the condition that they had the ability.
“It was narrated from Alqamah r.a that he said: I once walked in Mina with Abdullah r.a, we met Usman r.a, who then approached Abdullah. After talking for a while, Usman asked: “O Abu Abdurrahman, will I set you up with a young woman? Hopefully it will be able to remind you of your good old days”. Hearing the offer, Abdullah replied: What you say is in line with what the Messenger of Allah said to us: “O youth! Whoever among you has the physical and mental ability to marry, let him marry. Indeed, marriage can keep the eye and maintain honor. So whoever is not capable, let him fast because fasting can keep lust. (H.R Bukhari dan Muslim).[28]
Indirectly, the Qur’an and Hadith acknowledge that maturity is very important in marriage. Adult age in fiqh is determined by physical signs, namely signs of puberty in general, among others, the perfect age of 15 (fifteen) years for men, Ihtilām for men, and menstruation for women is at least 9 (nine) years old.[29] With the fulfillment of the criteria for puberty, it is possible for someone to get married. So a person’s maturity in Islam is often identified with baligh. If there is an abnormality or delay in physical or biological development, so that at the usual age a person has issued semen for men or issued menstrual blood for women but the person has not yet issued the signs of maturity, then start the return period based on the age that a person usually shows signs of puberty. The start of the age of puberty between one person and another is influenced by differences in the environment, geography, and so on.[30]
The size of maturity as measured by the criteria for puberty is not rigid. That is, if it is casuistically very urgent, the two prospective brides must be immediately married, as a manifestation of the sadd al-zārī’ah method to avoid the possibility of greater harm. Scholars have different opinions on setting age limits for people who are considered adults. Syafi’iyah and Hanabilah scholars state that boys and girls are considered mature when they reach the age of 15 years.[31] Hanafiyah scholars stipulate that the age of a person is considered baligh as follows: boys are considered balig when they are 18 years old, and 17 years old for girls. Meanwhile, scholars from the Imamiyyah group state that boys are considered mature when they are 15 years old, and 9 years for girls. For girls who are 9 years old, there are two opinions. First, Imam Malik, Imam Shafi’i, and Imam Abu Hanifah said that a girl who is 9 years old is the same as an 8-year-old child, so that she is considered not yet mature. Second, a child is considered to have reached puberty or an adult because it has been possible to menstruate, so that it is permissible to marry even though there is no agency for him as an adult woman has.[32]
Considering that marriage is a very strong contract or agreement (mīṡaqan galīẓan), which requires everyone who is bound in it to fulfill their respective rights and obligations with full justice, harmony, and balance. Marriage as a form of legal imposition is not enough just to require balig (age enough). The legal imposition (taklīf) is based on reason (aqil and mumayyiz), balig (age enough), and understanding.[33] This means that a person can only be burdened by law if he is reasonable and can understand well the taklif addressed to him. Regarding the principle of maturity in marriage, scholars tend not to discuss the age limit for marriage in detail, but rather to discuss the law of marrying young children. Marriage of young children in fiqh is called agīr or agīrah marriage or zawāj al mubakkir.[34] agīr or agīrah means small. However, what is meant by “agīr” or “agirah” are men and women who are not yet mature. Underage marriage cannot be separated from the right of ijbār, namely the right of the guardian (father or grandfather) to marry off his daughter without having to obtain prior approval or permission from the girl to be married, as long as she is not a widow.[35]
A father can marry off his young and virgin daughter as long as she is not yet mature without his permission, and there are no khiyar rights for the daughter if she has reached puberty. On the other hand, fathers are not allowed to marry off their young sons. However, a daughter can not immediately be fertilized by her husband if she is still too young, so that she is mature enough to have a relationship like husband and wife.
Scholars who allow guardians to marry off their underage daughters are generally based on the history that Abu Bakr ra. Marry Siti ‘Aisyah ra. with the Messenger of Allah.
“Have told me Yahya bin Yahya, Ishaq bin Ibrahim, Abu Bakr, and Abu Kuraib. Yahya and Ishaq have said: Have told us and said al Akhrani: Has told me Abu Mu’awiyah from al A’masyi from al Aswad from ‘Aisha ra. said: Rasulullah SAW married me when I was 6 years old, and lived with me when I was 9 years old, and he died when I was 18 years old. (HR. Muslim).[36]
Abu Bakr ra. had married ‘Aisyah to the Messenger of Allah when she was a child without her prior consent. Because at that age, his agreement cannot be considered perfect. However, regarding the marriage of ‘Aisyah ra. With the Prophet Muhammad, some scholars are of the opinion that this is an exception or specialty for the Messenger of Allah himself, as the Messenger of Allah was allowed to have more than four wives, which his followers were not allowed to follow. Another opinion states that the marriage of the Prophet with ‘Aisyah is more motivated by da’wah. However, the right of a father or grandfather’s ijbār cannot be exercised at will.
Ulama’ Syafi’iyah said that to be able to marry underage boys, it was necessary to have benefit (good interests). As for girls, several conditions are needed, including:[37]
There is no real enmity between the daughter and her guardian, her father, or her grandfather.
There is no real enmity (hatred) between her and her future husband.
The prospective husband must be kufu (appropriate or equivalent).
The prospective husband can give a proper dowry.
According to Ibn Shubrumah, he has a different view from the view of the majority of scholars above. Ibn Shubrumah is of the view that it is not recommended for boys or girls to be married. They can only be married after reaching the age of puberty and through the
ხელოვნური ინტელექტის ევოლუციური როლი იურიდიულ განათლებასა და კვლევაში
No full textThe integration of Artificial Intelligence (AI) into the legal profession has accelerated in recent decades, reshaping both the teaching and practice of law. This article explores the historical development of AI in the legal sector, its growing role in legal education, international best practices in AI-assisted teaching, and its transformative impact on legal research. By examining AI’s progression from early expert systems to advanced machine learning and natural language processing tools, the study demonstrates how AI aids in personalized learning, efficient case analysis, and predictive analytics. However, the article also addresses the major challenges posed by AI’s increasing influence, including ethical concerns, bias, data privacy, and skill gaps. It concludes by emphasizing the need for careful, ethically grounded, and strategically planned integration of AI into legal education and research, ensuring that technological innovations serve the overarching goals of justice and professional integrity.Keywords: Legal Research, Machine Learning, Ethics.
Introduction
The legal profession is experiencing a paradigm shift driven by rapid technological advancements. Traditionally, legal work has relied on human expertise for tasks such as drafting briefs, conducting in-depth legal research, and analyzing complex cases. Over the past two decades, however, the advent of AI (Artificial Intelligence) has introduced powerful new tools that augment human capabilities. ML (Innovations in Machine Learning), NLP (Natural Language Processing), and predictive analytics are fundamentally altering how lawyers work and how law students learn.[1]
In this evolving landscape, legal education cannot remain static. Law schools must prepare future lawyers not only to interpret and apply legal rules but also to engage effectively with emerging technologies. AI-assisted legal research platforms, intelligent tutoring systems, and automated contract review tools are becoming standard in top law firms and legal departments.[2] Incorporating these technologies into the curriculum helps new graduates develop the technical literacy and critical thinking skills necessary for a data-driven legal marketplace.
At the same time, the adoption of AI in legal contexts raises significant ethical, regulatory, and pedagogical questions. Issues such as algorithmic bias, privacy breaches, explainability, and the redefinition of professional roles require careful consideration.[3] This article offers a comprehensive analysis of AI’s historical role in law, its integration into legal education, best practices from various jurisdictions, and its impact on legal research. The discussion culminates with an examination of the main problems and a conclusion that outlines pathways toward responsible and effective use of AI in the legal sector.
The Historical Approach
The application of AI to the legal field dates to the late 20th century. Early attempts focused on expert systems designed to simulate the reasoning of seasoned attorneys, particularly in specialized domains like tax law. One of the earliest milestones was the development of rule-based programs that attempted to replicate human logic and judgment.[4] Although these initial systems were limited by computational power and data availability, they established a foundation for future advancements.
By the 1990s and early 2000s, the widespread adoption of the internet and increasing computational capacity facilitated the creation of comprehensive online legal databases and rudimentary search engines. Lawyers and researchers could access large collections of statutes, cases, and commentary at unprecedented speed, though searches often relied on keyword matching rather than semantic understanding.
The post-2010 era witnessed a significant leap forward due to ML, NLP, and neural network technologies. AI-driven tools now understand legal language with greater nuance, automate document review, and predict case outcomes with increasing accuracy.[5] These modern systems are not mere replacements for human judgment; rather, they complement and enhance human capabilities, guiding strategic decisions and highlighting previously unseen patterns in legal texts.
The Role of AI in Legal Education
Legal education has traditionally emphasized the development of analytical reasoning, doctrinal understanding, and persuasive advocacy skills. While these remain crucial, the emergence of AI demands a shift to include technological competence and digital literacy.[6] AI’s role in legal education can be understood in several key ways:
Personalized and Adaptive Learning:Intelligent tutoring systems can track student performance, identify problem areas, and offer customized feedback. Such platforms enable learners to progress at their own pace, focusing on strengthening their weakest skills.[7]
Enhanced Research Capabilities:Familiarity with AI-driven research tools prepares students for an environment where legal information retrieval and case analytics are increasingly automated. Students learn to navigate vast databases efficiently, improving their research acumen.[8]
Critical Engagement with Technology:Integrating discussions about AI ethics, data privacy, and algorithmic bias into the curriculum encourages students to think critically about the tools they use. This cultivates lawyers who can assess not only the legal sources but also the technology’s trustworthiness and fairness.[9]
Interdisciplinary Collaboration:As legal work increasingly intersects with technology, students who learn to collaborate with data scientists, technologists, and designers gain a competitive edge. Interdisciplinary skills enable lawyers to contribute meaningfully to teams that develop or oversee AI tools.[10]
Best Practices of Various Countries
As mentioned above, the use of artificial intelligence tools in legal education is not a recent phenomenon. Worldwide, AI tools and their application within the field of legal education are continually refined and developed. Different countries have adopted varying approaches in this regard. Within the scope of our research, we would like to briefly present the best practices of various systems:
United States: In the U.S., some law schools partner with technology firms to integrate AI-powered legal research platforms into their Workshops help faculty learn to incorporate NLP-based tools into their teaching. Courses also cover algorithmic accountability and data protection laws.[11]
United Kingdom: British law faculties emphasize critical assessment of AI. Students evaluate AI-driven legal opinions and consider the ethical implications of automated reasoning. Interdisciplinary seminars involving computer scientists and ethicists foster a nuanced [12]
Australia: Australian institutions focus on experiential learning. Simulated “virtual law firms” allow students to apply AI-assisted contract analysis tools, helping them develop practical skills for a tech-enhanced legal environment.[13]
Singapore: Singapore’s technologically advanced legal ecosystem incorporates AI tools from the outset. Students access NLP-enhanced databases and predictive analytics, ensuring that technological fluency becomes a core component of their legal training.[14]
European Union Member States: EU countries emphasize compliance with data protection laws and fairness Law schools teach students to evaluate AI tools against GDPR (General Data Protection Regulation) and emerging EU guidelines on trustworthy AI.[15]
The Role of AI in Legal Research
Artificial intelligence is actively used in the field of research as well, and legal research is no exception in this regard. AI has revolutionized legal research by enhancing efficiency, accuracy, and insight:
Efficient Information Retrieval: NLP-driven search engines refine queries semantically, retrieving documents that align more closely with the researcher’s intent. Tools like Westlaw Edge and LexisNexis Context leverage ML to suggest related materials.[16]
Predictive Analytics and Outcome Forecasting: Some AI models analyze judicial decisions to predict case outcomes with varying degrees of accuracy. While not definitive, these predictions help lawyers gauge litigation risks and refine their case strategies.[17]
Pattern Recognition and Trend Analysis: ML can detect shifts in legal doctrines, identify patterns in judicial reasoning, and reveal correlations between precedents. This aids scholars, policymakers, and practitioners in understanding the evolving legal landscape.[18]
Quality Control and Consistency: Automated review tools catch contradictory precedents, outdated citations, and errors. This consistency check reduces the risk of oversight and improves the quality of legal [19]
Main Problems
As shown above, artificial intelligence has made the processes of legal education and research easier. Tasks that once required substantial time and human resources can now be accomplished much more quickly and easily with the help of AI. Nevertheless, a number of problems and challenges persist, including:
Bias and Fairness: AI systems trained on historical data may perpetuate systemic Oversight, diverse training sets, and regular audits are necessary to mitigate harmful outcomes.[20]
Ethical and Professional Responsibility: Lawyers must ensure AI use aligns with professional standards, safeguarding client confidentiality and verifying the credibility of AI-generated Ethical codes may need updating to reflect these new responsibilities.[21]
Data Protection and Privacy: Sensitive legal data must be handled with Adherence to privacy regulations (e.g., GDPR) and robust cybersecurity measures are essential to maintain trust.[22]
Explainability and Transparency: Many AI algorithms operate as “black boxes”, making their reasoning Explainable AI models are needed to preserve trust in legal outcomes and facilitate meaningful judicial review.[23]
Skill Gaps and Training Needs: Educators and practitioners often lack the technical literacy to evaluate AI tools critically. Continuous professional development, interdisciplinary training, and updated curricula can bridge this gap.[24]
Regulatory Uncertainty: The legal framework governing AI use remains in flux. Policymakers must clarify liability standards, acceptable use cases, and professional norms to provide certainty and encourage responsible innovation.[25]
Challenges within the National System
In Georgia, legal education is regulated by the state. Since the legal profession is considered a regulated profession, the state determines a sector-specific standard for legal education. This standard sets forth the minimum competencies and benchmarks that legal education programs must meet. The standard was most recently revised in 2020.[26] Although, at first glance, the standard appears quite comprehensive, it does not establish any form of competencies related to artificial intelligence. Meanwhile, AI is employed in the legal field through educational simulations, so-called “smart contracts”, investigations, research, and other areas. Yet, the Georgian standard for legal education does not address challenges associated with AI in any way. As part of the research, the country’s existing legal education programs were examined. In only a small fraction of these programs does AI-related subject matter appear, and even then, only indirectly. We believe that the Georgian legal education standard should be updated in this respect to include AI-related topics. Furthermore, it would be advisable for universities to adopt global best practices in teaching law courses and to incorporate AI tools into their curricula.
conclusion
The emergence of AI in law necessitates a dynamic response from both legal educators and researchers. When integrated responsibly, AI enriches pedagogy, streamlines research, and empowers practitioners to navigate increasingly complex information environments. Yet, these benefits must be balanced with vigilance. Ethical safeguards, data protection mechanisms, explainability requirements, and continuous skill development are essential for building trust and ensuring that AI serves justice rather than undermining it. As the legal profession evolves, interdisciplinary collaboration, informed policymaking and ethical reflection become indispensable. By embracing AI thoughtfully, the legal community can uphold its core values while seizing the opportunities presented by technological innovation.
BibliographyMonographies:
Ashley, D. (2017). Artificial Intelligence and Legal Analytics: New Tools for Law Practice in the Digital Age. Cambridge University Press, New York;
Barfield, , Pagallo, U. (Eds.). (2018). Research Handbook on the Law of Artificial Intelligence. Edward Elgar Publishing, Cheltenham;
Gardner, v. (1987). An Artificial Intelligence Approach to Legal Reasoning. MIT Press, Cambridge, MA;
Susskind, (2019). Online Courts and the Future of Justice. Oxford University Press, Oxford.
Scientific Articles:
Alarie, , Niblett, A., Yoon, A. (2018). How Artificial Intelligence will Affect the Practice of Law. University of Toronto Law Journal, 68(1), University of Toronto Press, Toronto;
Bryant, , Davis, D., Surden, H. (2020). Emerging Technologies in Legal Education. Legal Education Review, 30(2), LexisNexis, Sydney;
Gelter, , Siems, M. (2021). Networks, Dialogue, and Learning in Legal Education. Journal of Legal Education, 70(2), Association of American Law Schools, Washington, DC;
Katz, M., Bommarito, M. J., Blackman, J. (2017). A General Approach for Predicting the Behavior of the Supreme Court of the United States. Plos One, 12(4), Public Library of Science, San Francisco, e0174698;
Lauritsen, (2016). Artificial Intelligence in Law: The State of Play 2016. Law Practice, 42(3), American Bar Association, Chicago;
Leith, (2019). The Rise and Fall of the Legal Expert System. European Journal of Law and Technology, 10(1), European Journal of Law and Technology, London.
Web Pages:
Chan, G. (2020). AI in Singapore’s Legal Sector: An LawTech SG. Available at: <https://www.lawtech.sg/ai-legal-sector-overview> (Last access: 15.10.2024);
European (2019). Ethics Guidelines for Trustworthy AI. Brussels: European Commission. Available at: <https://ec.europa.eu/newsroom/dae/document.cfm?doc_id=60419> (Last access: 15.10.2024);
Surden, (2021). Computable Contracts and Contract Analytics: AI and Legal Text Processing. Oxford University Press (online excerpt), New York;
Tang, (2019). Legal Technology and Education in Australia. Law Council of Australia. Available at: <https://www.lawcouncil.asn.au/technology> (Last access: 15.10.2024);
National Center for Educational Quality Enhancement (Georgia). National Standart of Legal Education (Georgia). Available at: <https://eqe.ge>.
Footnotes
[1] Susskind, R. (2019). Online Courts and the Future of Justice. Oxford University Press, Oxford, pp. 57-60.
[2] Ashley, K.D. (2017). Artificial Intelligence and Legal Analytics: New Tools for Law Practice in the Digital Age. Cambridge University Press, New York, pp. 23-45.
[3] Surden, H. (2021). Computable Contracts and Contract Analytics: AI and Legal Text Processing. Oxford University Press (online excerpt), New York, pp. 77-89.
[4] Gardner, A. v. (1987). An Artificial Intelligence Approach to Legal Reasoning. MIT Press, Cambridge, MA, pp. 10-15.
[5] Alarie, B., Niblett, A., Yoon, A. (2018). How Artificial Intelligence will Affect the Practice of Law. University of Toronto Law Journal, 68(1), University of Toronto Press, Toronto, pp. 106-115.
[6] Ashley, K.D. (2017). Artificial Intelligence and Legal Analytics: New Tools for Law Practice in the Digital Age. Cambridge University Press, New York, pp. 23-45.
[7] Bryant, S., Davis, D., Surden, H. (2020). Emerging Technologies in Legal Education. Legal Education Review, 30(2), LexisNexis, Sydney, pp. 52-54.
[8] Lauritsen, M. (2016). Artificial Intelligence in Law: The State of Play 2016. Law Practice, 42(3), American Bar Association, Chicago, pp. 42-43.
[9] Gelter, M., Siems, M. (2021). Networks, Dialogue, and Learning in Legal Education. Journal of Legal Education, 70(2), Association of American Law Schools, Washington, DC, pp. 349-383.
[10] Surden, H. (2021). Computable Contracts and Contract Analytics: AI and Legal Text Processing. Oxford University Press (online excerpt), New York, pp. 77-89, 105-108.
[11] Ibid., pp. 105-108.
[12] Leith, P. (2019). The Rise and Fall of the Legal Expert System. European Journal of Law and Technology, 10(1), European Journal of Law and Technology, London, pp. 2-4.
[13] Tang, Y. (2019). Legal Technology and Education in Australia. Law Council of Australia, pp 11-13. Available at: <https://www.lawcouncil.asn.au/technology> (Last access: 15.10.2024).
[14] Chan, G. (2020). AI in Singapore’s Legal Sector: An Overview. LawTech SG. Available at: <https://www.lawtech.sg/ai-legal-sector-overview> (Last access: 15.10.2024).
[15] European Commission. (2019). Ethics Guidelines for Trustworthy AI. Brussels: European Commission, pp. 5-10, 10-12. Available at: <https://ec.europa.eu/newsroom/dae/document.cfm?doc_id=60419> (Last access: 15.10.2024).
[16] Lauritsen, M. (2016). Artificial Intelligence in Law: The State of Play 2016. Law Practice, 42(3), American Bar Association, Chicago, pp. 42-43.
[17] Katz, D.M., Bommarito, M. J., Blackman, J. (2017). A General Approach for Predicting the Behavior of the Supreme Court of the United States. Plos One, 12(4), Public Library of Science, San Francisco, e0174698, pp. 3-5.
[18] Alarie, B., Niblett, A., Yoon, A. (2018). How Artificial Intelligence Will Affect the Practice of Law. University of Toronto Law Journal, 68(1), University of Toronto Press, Toronto, pp. 110-115.
[19] Ashley, K.D. (2017). Artificial Intelligence and Legal Analytics: New Tools for Law Practice in the Digital Age. Cambridge University Press, New York, pp. 125-128.
[20] Barfield, W., Pagallo, U. (Eds.). (2018). Research Handbook on the Law of Artificial Intelligence. Edward Elgar Publishing, Cheltenham, pp. 112-115.
[21] Surden, H. (2021). Computable Contracts and Contract Analytics: AI and Legal Text Processing. Oxford University Press (online excerpt), New York, pp. 130-133.
[22] European Commission. (2019). Ethics Guidelines for Trustworthy AI. Brussels: European Commission, pp. 10-12. Available at: <https://ec.europa.eu/newsroom/dae/document.cfm?doc_id=60419> (Last access: 15.10.2024).
[23] Susskind, R. (2019). Online Courts and the Future of Justice. Oxford University Press, Oxford, pp. 120-123.
[24] Ashley, K.D. (2017). Artificial Intelligence and Legal Analytics: New Tools for Law Practice in the Digital Age. Cambridge University Press, New York, pp. 140-142.
[25] Barfield, W., & Pagallo, U. (Eds.). (2018). Research Handbook on the Law of Artificial Intelligence. Edward Elgar Publishing, Cheltenham, pp. 200-205.
[26] National Center for Educational Quality Enhancement (Georgia). National Standart of Legal Education (Georgia). Available at: <https://eqe.ge>.ხელოვნური ინტელექტის ინტეგრაციამ იურიდიულ პროფესიაში ბოლო ათწლეულებში განსაკუთრებით იმატა, შეცვალა რა როგორც სწავლების, ისე სამართლის პრაქტიკის მრავალი ასპექტი. მოცემული სტატია მიმოიხილავს ხელოვნური ინტელექტის ისტორიულ განვითარებას იურიდიულ სექტორში, მის მზარდ როლს იურიდიულ განათლებაში, საერთაშორისო საუკეთესო პრაქტიკებს ხელოვნური ინტელექტის დახმარებით სწავლებაში, აგრეთვე, მის გარდამტეხ ზეგავლენას იურიდიულ კვლევაზე. ადრეული ექსპერტული სისტემებიდან თანამედროვე მანქანური სწავლების და ბუნებრივი ენის დამუშავების ტექნოლოგიებამდე განვითარების ანალიზით, ნაშრომი ხაზს უსვამს იმ გარემოებას, თუ როგორ უწყობს ხელს ხელოვნური ინტელექტი პერსონალიზებულ სწავლებას, საქმის ეფექტიან ანალიზსა და პროგნოზირებად ანალიტიკას. სტატია, ასევე, შეეხება იმ ძირითად გამოწვევებს, რომლებიც დაკავშირებულია ხელოვნური ინტელექტის მზარდ გავლენასთან, მათ შორის: ეთიკურ საკითხებს, მიკერძოებას, მონაცემთა კონფიდენციალურობასა და უნარების დეფიციტს. დასკვნაში სტატია ხაზს უსვამს ხელოვნური ინტელექტის ფრთხილი, ეთიკურად დასაბუთებული და სტრატეგიულად დაგეგმილი ინტეგრაციის საჭიროებას იურიდიულ განათლებასა და კვლევაში, რათა ტექნოლოგიურმა ინოვაციებმა ხელი შეუწყოს მართლმსაჯულების საერთო მიზნებსა და პროფესიულ ინტერესებს
The Impact of Intelligent Systems on the Future of Criminal Justice: Between the Right to Privacy and the Imperative of Modernization
Full text linkConstitutional principles have enshrined individual rights in accordance with the guarantees imposed by the rules of a fair trial. However, modern judicial systems are increasingly incorporating technologies driven by artificial intelligence (AI), which has sparked considerable debate. Some argue that the absolute implementation of such technologies poses a serious threat to fundamental constitutional rights—particularly the right to privacy and the guarantees of due process. Others view their adoption as a transformative development in the justice sector.
Among the key outcomes of AI integration into the justice system is the emergence of electronic litigation technologies, notably remote or virtual trials. While these mechanisms have significantly expedited judicial proceedings—especially by resolving disputes more quickly and reducing trial delays—they have also faced criticism. Objections have been raised at both national and international levels due to the potential challenges these mechanisms may present, especially in terms of their impact on fundamental procedural guarantees, such as the principle of adversarial proceedings and the right to a defense.
Accordingly, this study aims to clarify the implications of AI systems on the right to digital privacy, particularly in the pre-trial phase, including criminal investigations. It also explores their effects on constitutional rights during electronic trial proceedings. Ultimately, the study seeks to assess the extent to which these systems succeed in upholding the principle of a fair trial.
Keywords: Intelligent systems, digital privacy, modernization of justice, future of justice.
Introduction
Constitutional principles have been emphasized at both the international and national levels, historically and in modern times, on the rights of individuals to seek redress through judicial processes safeguarded by the rules of efficient and fair justice. However, modern judicial systems are now witnessing the introduction of technologies driven by artificial intelligence, which has sparked controversy between opponents and proponents. Critics argue that the unrestricted application of such technologies constitutes a violation of fundamental constitutional rights of individuals, whether during the pre-trial phase, particularly the right to privacy, or during the trial itself, especially when proceedings are conducted remotely via video, raising concerns about the extent to which fair trial guarantees are upheld. Conversely, supporters see the adoption of these technologies as a qualitative leap forward for the justice sector, elevating its systems to align with the most advanced judicial frameworks worldwide in delivering justice.
Moreover, the inevitability of artificial intelligence has cast its influence across all sectors amid the rise of what is now known as digital administration or e-governance. Among its manifestations within the justice sector is the mechanism of electronic litigation. The mechanism of electronic litigation, which constitutes one of the newly introduced instruments at the international level, has also been adopted by many countries, including Algeria, in recent years following the enactment of Law No. 15-03 dated February 1, 2015, concerning the modernization of the judiciary. This law institutionalized the use of electronic means as a method for conducting remote litigation procedures. This mechanism has significantly accelerated litigation processes, particularly in expediting dispute resolution.
However, certain jurists and courts have expressed opposition to this mechanism, arguing that it may encounter significant challenges, particularly in guaranteeing essential procedural safeguards and in upholding the core principles of due process, notably the principle of in-person hearings and respect for the right of defense.
The significance of this topic lies in examining the legal dimension regarding the necessity of implementing artificial intelligence technologies in the judicial field in a manner that does not infringe upon individuals’ constitutional rights, primarily the right to privacy and fundamental procedural safeguards in litigation.
Moreover, this study aims to clarify the impact of AI systems on the right to digital privacy, particularly during the pre-trial phase, namely the investigation stage, as well as on constitutional rights throughout electronic trial proceedings.
Accordingly, the question arises: To what extent have AI systems succeeded in balancing an individual’s right to privacy and procedural guarantees on one hand, and the demands imposed by the modernization of justice on the other?
In response, we adopted two main methodologies: the descriptive approach, considering AI systems as a phenomenon requiring a detailed description of their key characteristics and legal framework to identify their advantages and disadvantages; and the analytical approach, which involves scrutinizing the relevant legislative texts regulating the application mechanisms of AI tools, aiming to assess their effectiveness in the judicial domain and their compliance with the protection of individual privacy.
To achieve the objectives of this study, the research paper is divided into two main sections:
The impact of intelligent systems on the right to privacy;
The impact of intelligent systems on the constitutional principles protecting litigants (In the French and Algerian experiences).
1. The Impact of Intelligent Systems on the Right to Privacy Despite the positive outcomes that can arise from the digitalization of administration in general, most notably the enhancement of public services and the acceleration of fulfilling individuals’ needs, this process simultaneously generates a range of challenges. Among these is the issue commonly referred to as the right to privacy, which has evolved into what is now known as digital privacy. Therefore, this section will first address the general concept of privacy before discussing the legal safeguards designed to protect the right to digital privacy.
1.1 The concept of the right to privacy
Privacy, in general, refers to an individual’s right to protect their personal information and to secure their life and private affairs from any form of intrusion, violation, or exploitation by others. Disclosing aspects of private life without consent is generally regarded as a violation of the right to privacy.[1] One manifestation of this right is the protection of an individual’s personal life from violations such as intrusion into the sanctity of their home.
While traditionally this concept was limited to safeguarding an individual’s private life from interference, its scope has expanded alongside advancements in information and communication technologies, particularly with the emergence of artificial intelligence technologies. Today, individuals’ lives and all related information and data are integrally embedded within complex information systems and digitized platforms, as opposed to being confined to physical, paper-based records. Consequently, the right to privacy has evolved into what is now known as digital privacy, which primarily concerns the protection of data generated or transmitted by users during web browsing via mobile devices or desktops.[2]
Digital privacy can be defined as the ability of an individual to control the collection, processing, storage, and dissemination of personal information in cyberspace, and to be protected against unlawful access, surveillance, or misuse of such data.[3] Modern legal scholarship highlights that digital privacy goes beyond safeguarding against intrusion; it reflects broader principles of transparency, accountability, and fairness in data processing.[4] In addition, comparative legal research demonstrates a progressive recognition of digital privacy as an autonomous right, one that imposes positive obligations on states and institutions to establish effective technical and regulatory safeguards.[5]
1.2 Legal safeguards for the protection of digital privacy
Below, we examine aspects of the legislative frameworks established by the Algerian legislator to safeguard digital privacy, followed by an analysis of the impact of investigation and inquiry into crimes on the right to digital privacy.
1.2.1 Selected legislative frameworks for protecting digital privacy
Successive constitutions have enshrined the protection of the right to privacy, the most recent being the 2020[6] constitutional amendment. Article 47 states: “The protection of natural persons in the processing of personal data is a fundamental right”.
This right has also been reinforced through various specific laws. For instance, Article 59 of the Postal and Telecommunications Law mandates that:[7] “Operators holding licenses, as well as their users, under the penalties outlined in Article 127 of this law, must respect the confidentiality of correspondence transmitted via wired and wireless communications, and uphold the conditions for protecting private life and the personal information of subscribers”.
Additionally, Article 15 of Law No. 06-01 concerning the prevention and combating of corruption specifies,[8] in the context of preventive measures against corruption: “Enabling the media and the public to access information related to corruption, while respecting privacy, personal honor and dignity, as well as the provisions related to national security, public order, and judicial neutrality”.
1.2.2 The impact of investigation and inquiry into crimes on the right to digital privacy
One of the key legal protections of the right to privacy acknowledged by the legislator involves the limitations imposed even when certain crimes specified below occur. These limitations consist of two substantive conditions: first, the necessity of investigation in flagrante delicto crimes; second, the requirement of a preliminary investigation for crimes of a serious criminal nature. In addition to these substantive conditions, there is a procedural requirement, which is judicial authorization.
A. The necessity of conducting investigations into caught-in-the-act offenses and preliminary inquiries into high-risk crimes
Article 65 bis 5 of the Criminal Procedure Code addresses certain crimes that require immediate investigative and investigative actions due to their high criminal risk.[9] Examples include drug-related offenses, terrorism, transnational organized crime, offenses affecting automated data processing systems, and money laundering and currency crimes.
When the necessity outlined in the article is established, authorization may be granted to initiate investigative procedures, which include intercepting correspondence, recording audio and video communications, and entering residential premises without requiring the consent or approval of the individuals involved.
B. Judicial authorization
The mere necessity to initiate electronic surveillance, investigation, and monitoring procedures, even in cases involving offenses listed under Article 65 bis 5, is insufficient. It is imperative to obtain judicial authorization from the Public Prosecutor. Furthermore, when a judicial investigation is opened concerning these procedures, authorization must be secured from the investigating judge. These powers granted to the latter were established through the amendment to the Code of Criminal Procedure under Law No. 06-22.[10]
2. The Impact of Intelligent Systems on Constitutional Principles in Litigation
Intelligent systems have not only affected individuals’ lives by digitizing their data and privacy but have also extended to their judicial rights, placing these rights at the center of a dispute between opponents and proponents, for reasons we will outline. With Reference to the French Experience in Comparison to the Algerian Experience:
2.1 The nature of remote electronic litigation
Some define the electronic judicial system as: “The authority of a specialized judicial court to electronically adjudicate disputes presented before it via the Internet or a private external communication network (Extranet), using technical electronic mechanisms aimed at expediting dispute resolution and facilitating access for the parties involved”[11]. Accordingly, litigation procedures occur simultaneously despite the physical distance between the parties[12], allowing for the hearing of testimonies, the exchange of pleadings between the parties or their representatives, and the examination of witnesses or interrogation of the defendants.[13]
From this definition, it is clear that electronic litigation procedures are conducted through the transmission and receipt of documents and evidence via electronic platforms, eliminating the need for the parties to physically appear repeatedly at the courthouse, as traditionally required in conventional judicial systems. Opponents are also interrogated, their statements are heard, memoranda are exchanged between them or their representatives, and witness statements are heard, all via electronic means.[14] After that, the judge then only needs to ask a few straightforward questions before issuing a ruling promptly, without the need to postpone due to case backlog.
This contributes to saving time, reducing effort, and minimizing expenses, thereby alleviating the issue of overcrowding in courts and striving to improve the quality of services provided to litigants.[15]
2.2 The legislative foundations of electronic litigation in Algeria
Electronic litigation, or remote video conferencing, which the Algerian legislator refers to using the French term “Vidéo-conférence” in the context of investigations and witness hearings, derives its terminology from the United Nations Convention against Transnational Organized Crime, ratified by Presidential Decree No. 02-55 issued in 2002.[16] However, its practical application only began to emerge in 2007, specifically with the inauguration of the 2007-2008 judicial year, when the electronic litigation bill was introduced for parliamentary discussion. The bill received implicit approval from parliament members, but further debate was postponed until 2014, during the nineteenth public session held on Monday, November 24, 2014. These developments ultimately culminated in the enactment of Law No. 15-03 concerning the modernization of justice.[17]
Although this law represents a modest and somewhat delayed step, considering the timeline from the ratification of the United Nations Convention against Transnational Organized Crime,[18] it can nonetheless be regarded as a positive advancement towards embracing technology, specifically what has come to be known as the electronic administration system.
Article 1 of this law articulates three fundamental objectives it aims to achieve:
Establishing a centralized information system for the Ministry of Justice;
Transmitting judicial documents and records electronically;
Utilizing remote video conferencing technology in judicial proceedings.
2.2.1 Applications of electronic litigation in Algeria
Since the enactment of the Justice Modernization Law, the majority of courts across the country have seen significant uptake in utilizing its provisions, with 153 remote video trials recorded within the first year of implementation. The inaugural session took place on October 7, 2015, at the Court of El Kalaa in the misdemeanor division. Officials involved in this initiative emphasized that this technology aims to alleviate courtroom overcrowding, reduce the burden of travel for defendants, security personnel, prison administrations, and witnesses, while also accelerating the pace of case processing.[19]
Regarding remote international trials, it was the first of these pleadings on July 11, 2016, between the Court of Msila in Algeria and the Court of Nanterre in France. Many legal scholars and attorneys who participated in these remote hearings praised the process for its numerous advantages, including the provision of simultaneous interpretation from Arabic to French, and for projecting a positive image internationally regarding the integrity of the Algerian judiciary, highlighting respect for the right of defense and adherence to fundamental trial principles. Furthermore, this form of trial eliminates the need for physical presence in court, especially for individuals unable to travel due to health conditions. Overall, the use of remote video trial technology offers significant savings in effort, cost, and time.[20]
2.2.2 The position of legal doctrine and judicial practice on the digitalization of justice
An examination of the implementation of justice digitalization laws and their impact on various international judicial systems, as well as the reactions they have provoked, reveals the existence of two opposing trends. The first trend expresses satisfaction, relying on the advantages demonstrated through judicial practices conducted via electronic platforms. The second trend, however, is not entirely opposed to these technologies but raises reservations concerning certain aspects, particularly those touching upon the fundamental principles of due process.[21]
In order to assess the legal value and broader implications of these laws, it is necessary to analyze the arguments and justifications advanced by both positions, with the aim of reaching practical outcomes that may contribute to the harmonization of diverse legal and judicial systems at the international level.
A. Perspectives of the supportive approach to judicial digitalization
This perspective is grounded in the principle of synchronizing technological advancement with the evolution of crime. Since offenders have developed sophisticated technical methods relying on electronic means to commit crimes, it is only logical to respond by updating laws and electronic tools to counter this phenomenon effectively.[22]
The rapid completion and execution of litigation procedures through the electronic exchange of pleadings and documents, unlike traditional correspondence and postal communications,[23] which often result in case adjournments, thus fulfilling the principle of procedural economy.
Empirical evidence suggests that the adoption of electronic litigation and digital case management systems has led to a tangible reduction in court backlogs and a decrease in the frequency of adjournments. For instance, in England and Wales, the shift from paper-based to digital processes in criminal and family courts has resulted in improved accuracy—error rates dropping below 1%—expedited case progression, and fewer delays caused by clerical inefficiencies.[24]
Facilitating the categorization of cases which streamlines their processing and automated storage while reducing the physical storage space required in courts. This also helps prevent the loss or haphazard filing of case files.
Preserving electronic documents of all kinds from the initial complaint, records, session minutes, to all case-related papers, thereby ensuring the protection of rights.
Alleviating the pressure and workload on judges and sparing them from confrontations with litigants, particularly in cases where judges personally oversee proceedings without legal representation.
Allowing electronic access to case files and enabling review of all procedures taken without the necessity of physically attending court.[25]
B. The viewpoints of those opposing electronic litigation, on the grounds that it conflicts with constitutional principlesAt the international level, the attitude towards remote litigation between countries appears to oscillate between relative rejection and conditional acceptance. There is no dispute that digitization and artificial intelligence have contributed to the development of the judicial system. However, studies have shown that the lack of technology in some judicial systems in some countries has negatively impacted the effectiveness of digital justice, while other systems have adapted well.[26]
We will limit our analysis to the French model in comparison with the Algerian experience, in consideration of the scope of this research paper:
One of the most notable recent decisions of the French Constitutional Council[27] provided that: “While technological progress necessitates the digitization of courts and trials, this must not come at the expense of the right to physical presence and the right to respond during the various stages of the trial. While this may not affect the judicial panel, it is fundamentally different for the accused and their defense”.
This ruling followed the legislative measures adopted by the French Parliament in response to the COVID-19 pandemic, which resulted in a considerable expansion of remote trial hearings through video conferencing technologies. The practice provoked substantial debate, particularly after the French Constitutional Council, on 16 October 2020, was seized of a decision delivered by the Criminal Division of the Court of Cassation.[28] The ruling of the French Council of State (Conseil d’État), Judgment No. 2351 of 13 October 2020, concerned a constitutional matter regarding the protection of rights and freedoms guaranteed by Article 5 of Ordinance No. 2020-303, which amended the Code of Criminal Procedure in response to the COVID-19 pandemic on the basi
The National Judiciary as an Exceptional Measure in the Face of the Crimes of the Zionist Entity in the Gaza Strip
Full text linkIn light of the inability of the United Nations to stop the Israeli aggression on the Gaza Strip, as the official sponsor of international peace and security, many countries are calling for the application of the law of war between states to occupied Palestine. However, reality proves that the application of this law was and still is merely ink on paper in the Palestinian case, because the international will is very much in solidarity with the occupier, this does not prevent Israel’s crimes from being documented to be put before international courts in the future, as happened in the war crimes of Bosnia and Herzegovina, Sierra Leone, and Rwanda, or national courts as the alternative or available option for states in accordance with what was stipulated in the four Geneva Conventions. Therefore, it must direct the national judiciary towards what is known as universal jurisdiction to pursue war criminals in the Gaza Strip.Keywords: International peace and security; war crimes; international justice; universal jurisdiction.
Introduction
The Palestinian issue is one of the most complex international issues for decades, due to its historical importance related to the rights of the Palestinian people and their existence in occupied Palestine and the Middle East region. This issue is linked to a series of events and developments that the region has witnessed since the Balfour Declaration, from a bloody conflict that has affected the lives of millions of people after the establishment of Zionism andthe immigration of Jews to Palestine and the settlement of the region, due to the role played by the major powers in these events.
What happened in the Gaza Strip starting in October 2023 is nothing more than a series of uprisings against the Israeli occupation of Palestine since the 1950s. However, the Israeli response this time has reached its peak with direct targeting of civilians due to Israel’s sense of humiliation in the wake of the operation led by the resistance factions, which was named the Al-Aqsa Flood, and the accompanying invasion of several settlements and the capture of army personnel.
All of this was documented through various Arab and foreign media outlets, which played a significant role in conveying the inhumane situation that the Gaza Strip has descended into. This prompted the international community to demand a cessation of hostilities in the Strip, in the face of the inability of various international bodies to solve the humanitarian disaster, or at least for senior leaders to follow up on their violations of the customs and laws of war.
From this standpoint, the following issue can be raised: How can the national judiciary be an effective mechanism for curbing crimes committed in the Gaza Strip, given the inability of international mechanisms?
The paramount importance of the study’s subject matter is manifested in clarifying the role of the national judiciary in limiting the Israeli crimes against the Gaza Strip, as an auxiliary alternative to the international mechanisms that have failed due to the lack of genuine willingness in the international community. This has been proven through the resolutions of the Security Council when they collide with a state that has a permanent seat, and the recommendations of the General Assembly in the organization.
The subject will be studied according to the requirements of the analytical approach, which is the methodology imposed by such studies and which encompasses all aspects of the subject. This necessitates the analysis of international legal texts, but nevertheless, there is nothing that prevents us from utilizing some other approaches that the elements of the subject matter dictate, such as the descriptive method.
To address the topic from all angles, we have divided this study into two sections. In the first section, we discussed the role of international mechanisms in stopping the Israeli aggression on the Gaza Strip. In the second section, we touched upon studying universal criminal jurisdiction as a mechanism to limit the crimes committed in the Gaza Strip.
Section One: The Role of International Mechanisms in Stopping the
With the continuation of the Israeli aggression on the Gaza Strip, and the unprecedented crimes it has left against the Gaza residents without distinction between civilians and combatants, various international bodies, led by the United Nations General Assembly and Security Council, have attempted to stop the military actions of Israel while seeking a ceasefire between the parties to the conflict. Based on this, we have divided this section into two demands:
The First Demand: Israel’s Crimes Against the Palestinian People
In this demand, we examined the deteriorating situation in the Gaza Strip after the Al-Aqsa Intifada, and then proceeded to clarify the Israeli crimes that accompanied the armed aggression. This is what we will study in succession:
The First Branch: The Background of the Events of 07 October 2023
Despite Israel’s 2005 withdrawal, the Gaza Strip remains under Israeli occupation, gaining control over land, sea, air, population registry, and communication networks. This has allowed Israel to seize daily life and infrastructure, violating international human rights law.[1]
On October 7, 2023, Palestinian resistance fighters launched the largest attack on Israel in decades, codenamed “Operation Al-Aqsa Tempest”. The attack, also known as the “Third Intifada”, involved thousands of rockets and Palestinian armed men advancing towards Israeli settlements. Israel declared a “state of war” and launched “Iron Sword”, causing extensive aerial bombardment and evacuation of civilians.[2]
Second Section: Israel’s Violation of International Humanitarian Law
Since the beginning of the aggression on the Gaza Strip on October 7, 2023, the Israeli occupation forces have carried out orders for forced mass displacement against the civilian population in the Gaza Strip, which has seriously affected their lives and safety, and forced them to live in unprecedented inhumane conditions. The forces have also repeatedly targeted the shelters for the displaced with bombardment, affecting many of them, including those belonging to the United Nations. This constitutes a serious and systematic violation of the rules of international humanitarian law,[3] particularly the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War dated August 12, 1949, which grants special protection to civilians and prohibits exposing their lives to danger, threatening them, and forcing them to evacuate.
In fact, many well-known international human rights and humanitarian organizations have already pointed to potential war crimes, including crimes against personnel, and even the International Committee of the Red Cross has expressed its concern in a rare public statement about the Israeli military actions and acts prohibited under the Geneva Conventions and Additional Protocols.[4]
UN experts warn that Israel is attempting to change Gaza’s demographic composition through increasing eviction orders and attacks on infrastructure. 85% of the population has been internally displaced since October 7, 2023, facing overcrowded conditions, infectious diseases, and struggles to access basic necessities. The Israeli military operation has targeted hospitals, schools, and shelters without considering proportionality or distinction between civilians and combatants. The UN Secretary-General has called for Israel to halt its campaign, implement a permanent ceasefire, and allow unimpeded humanitarian assistance, while prioritizing dialogue for the safe release of civilians.[5]
From the foregoing, we infer that Israel not only treated the lives of the population in the Gaza Strip with disdain, but also deliberately inflicted the greatest possible harm on civilians to commit genocide, which led to the exacerbation of the humanitarian crisis that provoked widespread condemnation from the international community. The international community has called for the necessity of finding a just and comprehensive solution to the Palestinian issue and ensuring accountability for those responsible for international crimes.
The Second Demand: The Role of United Nations Bodies in Stopping the Israeli Aggression on the Gaza Strip
There are more than 560 multilateral treaties on human rights, terrorism, international crime, refugees, disarmament, and many other issues that have been negotiated and concluded through the efforts of the United Nations.[6] Despite this large number, there are still major violations of international law by Israel in Gaza. Therefore, in this section, we will study the role of the two most important bodies in the United Nations in curbing the Israeli aggression against the Gaza Strip, as follows:
The First Branch: Evaluating the Efforts of the United Nations General Assembly in Stopping the Israeli Aggression on Gaza
The UN Fact-Finding Mission’s report on Gaza conflict reveals Israel violated international law by not taking necessary precautions, using prohibited weapons, targeting Al-Quds and Al-Wafa hospitals, and mass detaining Palestinians in Israeli prisons, violating human rights requirements and the International Covenant on Civil and Political Rights.[7]
The United Nations General Assembly adopted by an overwhelming majority five resolutions on Palestinian issues related to refugees, settlements, and Israeli practices.[8] The Palestinian Ministry of Foreign Affairs and Expatriates reported that 168 countries supported a resolution assisting Palestinian refugees, while occupying states voted against it. The resolution also passed on the UNRWA’s operations, with 165 countries supporting it. The Special Committee investigating Israeli human rights practices against Palestinians and other Arabs was supported by 86 countries, with 12 countries opposing it.[9]
Based on the above, we can conclude that the General Assembly plays an important role in spreading global awareness by expressing the will of the international community in support of the rights of the Palestinian people, although its ability to stop the Israeli aggression is still very limited, and this is due to several reasons, the most important of which can be summarized as follows:
The resolutions issued by the General Assembly are not legally binding,[10] which means that states are not obligated to comply with their recommendations;
The conflicting political and economic interests of the members in the General Assembly often influence their positions, leading to an inability to form a strong and unified consensus on issues such as the Israeli-Palestinian conflict;
Diplomatic pressure from powerful states, particularly the United States and European countries, weakens and limits the General Assembly’s ability to take strong actions against Israel;
The General Assembly takes a long time to reach decisions due to bureaucracy. This delay can be more harmful than beneficial, especially in situations that require a rapid response to stop violence;
The General Assembly does not have its forces or executive mechanisms to implement its resolutions, which primarily depend on the member states, making it often powerless to impose its will;
The political divisions among the member states on how to deal with Israel and Hamas have resulted in the adoption of weak and ineffective decisions.
The Second Branch: The Security Council’s Failure to Stop the Israeli Aggression on Gaza
The Security Council resolution issued on March 25, 2024[11] calling for a ceasefire and opening the door for the flow of humanitarian aid to the Gaza Strip, is considered the most prominent sign of the international shift towards intensifying pressure on Israel, in line with the Council’s previous resolutions numbered 2712 and 2720 of 2023. However, upon a careful reading of the wording of this resolution in comparison to the previously issued Security Council resolutions, it is notable that the term “demands” has been replaced with “calls upon” or “urges”, which is something we have not been accustomed to in Security Council resolutions, which have traditionally included the phrase “decides”. There is a distinct difference between the phrases “the Security Council calls upon/urges” and “the Security Council decides”. Furthermore, the resolution was not even attributed to Chapter VII of the Charter, which deals with the maintenance of international peace and security, as stipulated in Article 25 of the United Nations Charter.
All of this has led several parties, foremost among them the United States of America, to interpret and construe the resolution according to its wording, considering it to be lacking in the mandatory character.[12]
Regardless of the format in which the resolution was formulated, in the end all parties must respect it and abide by it, as it was issued by an executive body of the United Nations, which is empowered under the Charter with very broad powers, represented mainly in the maintenance of international peace and security.
However, Israel did not care about the resolution, and the evidence of this is that only two days after it was issued, it began what it is accustomed to doing in terms of crimes against civilians in Gaza, by committing 8 massacres against Palestinian families, from which 81 martyrs and 93 injuries were reported to have reached the hospitals, according to what the Palestinian news agency (WAFA) reported.[13]
Based on the aforementioned data, it can be said that Israel has not respected the UN Security Council resolution, failing to maintain international peace and security. This confirms that the Zionist entity has somehow ensured the suspension of any subsequent action that the Council may take against it due to its violation of this resolution, since the entity’s allies have permanent seats on the Council, which enables them to use the veto power. The best evidence of this is the continued acts of genocide to this day.
The confirmed event was the bombing of the refugee camp north-west of Rafah, southern Gaza Strip, by the occupation army’s aircraft on 26/05/2024. The target was the tents of the displaced people near the headquarters of the United Nations Relief and Works Agency for Palestine Refugees (UNRWA) in an area claimed to be “safe”. This resulted in dozens of casualties with burns and amputations, as well as deaths,[14] 27civilians.[15]
The Second Requirement: Practical Measures Taken by International Courts to Prosecute Israel for its Crimes in Gaza
The interest has been growing in international human rights circles regarding the idea of prosecuting Israel before international courts, due to the estimated civilian death toll of over 15,000 caused by its military forces in the Gaza Strip. Human rights organizations consider this a systematic crime and killing of civilians.[16] In fact, Israel has been condemned by the two most prominent international courts - the first being the International Court of Justice, which rules on disputes between states according to the principles of state responsibility, and the second being the International Criminal Court, which holds individuals criminally responsible. We will explain these in more detail:
The First Section: Condemnation of Israel by the International Court of Justice
On December 29, 2023, the Republic of South Africa filed a lawsuit against Israel before the International Court of Justice to determine Israel’s responsibility for acts of genocide against Palestinians in the Gaza Strip, thereby violating its obligations under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. It is noteworthy that this is the only treaty in which Israel has recognized the Court’s jurisdiction to settle disputes arising between it and other parties regarding the interpretation or application of the treaty, while reserving its jurisdiction in the rest of the international treaties it has signed.
South Africa’s request included a plea to the Court to impose provisional (precautionary) measures, which are of utmost importance in ensuring the urgent and full protection of Palestinians who are still facing serious dangers as a result of the ongoing acts of genocide in the Gaza Strip. This is also to preserve the rights of either party as stipulated in Article 41 of the Statute of the Court.[17]
The International Court of Justice has ordered Israel to cease acts deemed genocide, including those listed in the Convention on the Prevention and Punishment of Genocide. Despite this, Israel continues to face high civilian casualties and injuries. The targeting of three hospitals in Khan Yunis and the targeting of displaced civilians indicate Israel’s rejection of the court’s decision.[18]
Israel reaffirmed its intention to continue its aggression against the Palestinian people, ignoring the International Court of Justice’s ruling, after 124 days of aggression, resulting in 70% of children and women’s deaths and war crimes.[19]
It is therefore clear that the escalation of Israeli attacks aims to commit further war crimes and genocide, with the blatant disregard for the decisions of the International Court of Justice that oblige it to take measures to prevent this crime.
The Second Branch: The Efforts of the International Criminal Court in Pursuing War Criminals in the Gaza Strip
Israel was one of the seven countries that voted against the establishment of the International Criminal Court[20] and opposed the Rome Statute, citing some legal arguments in an attempt to conceal its true political motives that led it to oppose the establishment of the Court. However, despite this, Israel signed the Statute of the International Criminal Court on December 31, 2000, but has not ratified it yet.[21]
The International Criminal Court can still pursue political and military leaders in Israel at the request of Palestine, as long as Palestine is a member of the International Criminal Court. This is in accordance with Article 13 of the Rome Statute. The case could also be referred to the Court by the United Nations Security Council, as per the same article. However, this latter scenario is unlikely to occur given the blessing of some influential states in the Security Council for the military actions on Gaza.
The Pre-Trial Chamber of the International Criminal Court is currently examining the Prosecutor Karim Khan’s request for arrest warrants against 3 Hamas leaders and the Israeli Prime Minister “Benjamin Netanyahu” and his Defense Minister “Yoav Gallant”. If the Pre-Trial Chamber judges are convinced that the evidence presented provides reasonable grounds and that the necessary criteria for issuing the arrest warrants have been met, they will approve the issuance of arrest warrants against them, which will include details of the suspects, a description of their alleged crimes, and the legal basis for issuing them. These warrants will then be sent to the 124 States Parties to the Rome Statute, who are obliged to cooperate with the Court to execute the arrest warrants. This means that Netanyahu and Gallant will have to think carefully before travelling to any of these countries, unlike the Hamas leaders who are permanently based in the Gaza Strip, with Haniyeh currently residing in Qatar.
The International Criminal Court’s Prosecutor has called on all Rome Statute States to handle requests for judicial decisions with the same seriousness as in previous cases. Israeli Foreign Minister Yisrael Katz has ordered a special committee to combat Khan’s decision, intending to speak with world foreign ministers to oppose the Prosecutor’s decision.[22]
There is a serious desire on the part of the prosecutor of the International Criminal Court to issue an arrest warrant, although this matter is initially subject to the approval of the Pre-Trial Chamber judges according to the provisions of Article 15 of the Rome Statute. However, if the arrest warrant is issued, we believe it will significantly impact Israeli politicians and leaders, at least in their constant travels, which they are accustomed to. As for the leaders of Hamas, they do not travel extensively; nevertheless, the warrant may place Palestine in a dilemma due to its obligations towards the Court, as it has ratified the Court’s Statute.
In general, and based on judicial precedents, the International Criminal Court remains constrained by several obstacles, primarily related to the provisions of its Statute, especially Article 82 concerning a set of conditions that require the approval of certain states regarding judicial cooperation. Therefore, states must strive to impose international criminal justice through what is known as universal jurisdiction in the prosecution of various international crimes, and this is what we will devote to studying in the following section.
The Second Topic: Universal Criminal Jurisdiction as a Mechanism to Reduce Crimes Committed in the Gaza Strip
In the face of restricting the jurisdiction of the International Criminal Court to several conditions, some of which are objective and others are territorial, the national judiciary needed to strive to take its place, as it is the original jurisdiction for the prosecution of international crimes, in accordance with the various international documents, foremost of which are the Geneva Conventions of 1949. Not only that, but even the United Nations bodies, including the Security Council, urged states to exercise universal criminal jurisdiction to tighten the noose on perpetrators of international crimes. Based on this, we have divided this topic into two demands as follows:
The First Requirement: The Global Criminal Jurisdiction is a Mandatory Obligation to Achieve Criminal Justice
It
Legal Implications of Renewable Energy Technologies: A Comparative Legal Analysis
Full text linkThe paper will discuss legal aspects of renewable energy technologies by comparing India, the United States, and Germany. It integrates both case law analysis and a framework of Policy evaluation to identify three determinative factors in the outcome of renewable energy: regulatory certainty, institutional capacity, and market integration. The results indicate that investors are confident in predictable and enforceable regulations, as seen in Germany, through stable feed-in tariffs, in contrast to the uncertainty of the U.S. tax incentives and the poor enforcement of Renewable Purchase Obligations in India. Institutional strength is highly connected to project acceleration, and delays in the U.S and Indian cases as compared to a relatively consistent regulatory framework in Germany. Reduction of cost comes with competition mechanisms like auctions, but their efficiency depends on an open and enforceable legal framework. The paper concludes that cost-effective, socially legitimate, and investor-friendly renewable energy transitions cannot be attained without the presence of adaptive and coherent legal frameworks that are based on the principles of enforceability, institutional robustness, and policy coherence.
Keywords: Renewable energy law, comparative legal analysis, institutional capacity, investor confidence, policy innovation.
Introduction
Renewable energy technologies are also leading the struggle to reach sustainable energy systems in the world. They provide very high benefits to the environment and economy as greenhouse gas (GHG) emissions abatement and offset expenditure in the long term.[1] Nevertheless, transition is not only technically feasible, but it is institutionalized in the complex law, institutional, and policy frameworks, and differs across jurisdictions. The global shift to sustainable energy systems would not be possible without renewable energy technologies. They have significant environmental, economic, and social advantages, thus requiring to reduction in the emission of GHG and addressing climate change.[2] The global energy transition involves wind and solar PV technologies as renewable energy technologies that can provide two-thirds of the global energy needs, and emissions of GHG can be reduced to a significant degree.[3] Renewable energy offers great economic and environmental rewards, such as savings in cost, decreased cost of lifecycle, and decreased GHG emissions.[4] The energy transition requires the development of renewable resources technologies, i.e., solar, wind, biogas, and biomass. Moreover, these technologies have to be effectively incorporated into the energy systems to make the most of them.[5] Besides, facilitating regulation systems is invaluable in accelerating the development of renewable energy technologies. A change in the following structures can trigger the necessary pace of moving towards renewable energy.[6] Although these are the advantages, there are drawbacks to widespread adoption of renewable resources technologies, such as technological, economic, and social obstacles.[7] The current reaction to the dynamic inverters that operate the Renewable Energy Sources (RES) in the power grid creates potential legal issues in trying to integrate renewable energy technologies into the power grid, since the inverters and protection systems’ design has to respond to the dynamic nature of the RES.[8] There are also difficulties in the asynchronous ability to tie converter-based RES, such as wind and solar, to the grid that result in low delivery of vital power system functions, such as inertia and strength, and require viable approaches to assessment and definite requirements to achieve safe integration.[9] Tax subsidies, regulatory limits, and energy storage are also important policy factors in overcoming the challenges relating to incorporating renewable resources, especially in the optimal exploitation of solar and wind energy resources in the existing grid infrastructure.[10]
The legal framework surrounding the adoption of renewable energy is very fragmented and uneven across jurisdictions, even though this energy source has become central to the sustainability of the globe. The literature on the subject often gives us descriptive explanations of treaties, incentives, and policies, but seldom offers a comparative systematic assessment of their efficacy. Regulatory certainty, institutional capacity, and market integration are also critical issues that have not been adequately researched yet despite their decisive influence on determining the confidence of the investments, the timing of projects, as well as cost effectiveness. The existence of weak enforcement in India, fragmentation in the United States of America, and competition restrictions to competition dynamics within the European Union in Germany highlight institutional gaps, indicating that comparative legal analysis and evidence-based policy suggestions are necessary. The paper will critically examine the legal issues surrounding renewable energy technologies by conducting a comparative analysis of India, the United States, and Germany by applying the case law analysis and policy evaluation frameworks to determine the best practices, gaps in the institutions, and policy recommendations that enhance sustainable, cost-effective, and investor-friendly transitions in the energy system. To achieve this goal, the paper will focus on the following research questions (RQ):
RQ 1. What is the relationship between regulatory certainty, institutional capacity, and market integration, and the effectiveness of renewable energy laws in India, the United States, and Germany?
RQ 2. What are the similarities and differences between comparative case law and policy regimes in these jurisdictions, and what are their implications on investor confidence, project acceleration, and reduction in costs?
RQ 3. What evidence-based legal and policy actions can be advocated to reinforce the governance of renewable energy uses and promote sustainable, socially acceptable, and investor-friendly transitions?
The paper is organized as follows: Section 1 describes the international and national frameworks; Section 2 discuss intellectual property rights in renewable energy; Section 3 take into account the environmental regulation and compliance; Section 4 discuss contractual and commercial consideration; Section 5 case studies; Section 6 take into consideration a discussion.
Methodology
The study adopts a comparative legal framework and discusses the legal implications as regards renewable energy technologies. This framework is a combination of the doctrinal analysis of the law and the courts and policy appraisal model; therefore, there is a need to have a unified and thorough process of appraisal of the law in various jurisdictions. Amicus Solar Pvt. Ltd. v. State of Maharashtra in India, the litigation over the Cape Wind Project in the United States, and litigation in the Energiewende system of Germany are high-profile cases. These cases show the similarities, such as the judicial emphasis in conducting an environmental impact analysis, and differences, such as the enforceability of renewable purchase requirements in India and the conflict of federal and state competencies in the U.S.
The policy evaluation framework compares the legal and institutional background to three criteria: regulatory certainty, institutional capacity, and market integration. The comparative evidence suggests that the U.S. is characterized as being very incentive-based and has consistency issues. India has high statutory goals and an inability to execute them the same way. Germany has a subsidy-to-auction transition that is firmly founded on EU competition legal principles. Utilizing a fusion of judicial reasoning and policy examination, the research will offer a systematic inter-jurisdictional examination, best practices, common traps, and remedies to be repatriated to share renewable energy across the globe.
1. International and National Legal Frameworks1.1. International level
The international legal framework of renewable energy technology is a complex of rules established by agreements and protocols to stimulate the technology related to renewable energy. In 1992, the UN Framework Convention on Climate Change (UNFCCC) highlighted the need to stabilize GHG in the atmosphere as well as sustainable development.[11] The Energy Charter Treaty (ECT)1994 was signed in order to promote global cooperation in the field of energy.[12] It aims at establishing a legal framework of energy commerce, protection of investment, and dispute resolution among the member states. The ECT gives the investors in fossil fuels the opportunity to challenge the environmental and climate policies, and thus stall massive climate action.[13] The uniform interpretation and application of the provisions of the ECT by the arbitral tribunals and domestic courts have not been consistent, thus leading to the absence of legal clarity in the settlements of investor-state disputes.[14] In 2009, the law of the International Renewable Energy Agency (IRENA) was passed to make greater use of all the renewable resources in a sustainable manner. The IRENA assists the states to move to renewable energy and is used as a platform of international cooperation and storage of knowledge regarding renewable energy.[15] IRENA helped to access renewable data, policy, capacity-building, and technology transfer (TT).[16] In the year 2009, the Kyoto Protocol was imposed on the industrialized countries to cut GHG emissions.[17] In 2015, the SDGs emphasized the significance of renewable energy in SDG7.[18] In accordance with the SDGs, the Paris Agreement of 2015 aims at reducing global warming to levels that are lower than the pre-industrial levels,[19] and in addition to this, it suggests that countries should contribute, financially assist developing countries, TT, and capacity-building.[20] All these treaties and agreements are aimed at promoting cooperation between countries and ensuring the implementation of renewable energy technologies.
1.2. National legal framework
Implementation of renewable energy is facilitated by a complicated system of national laws and regulations in different nations. The legal frameworks for the adoption of renewable energy are varied and vary in various countries, as there are different social, political, and economic backgrounds.
1.2.1. United States (US)
The policy of renewable energy in the US is constituted by both federal and state policies.[21] At the federal level, there is the Energy Policy Act of 2005 that provides loan guarantees and tax credits to facilitate energy production among the different sectors, which include renewable energy.[22] It facilitates the development of clean energy technologies, including the Investment Tax Credit and the Production Tax Credit. The credits can be used together to lower the initial cost of installing and keeping up the new RES operational, which makes the clean energy projects more cost-effective and promotes investment in renewable energy infrastructure.[23] The unpredictability in the US renewable energy investment climate is caused by the absence of long-term power purchase agreements and dependency on the changing tax incentives, which leads to uncertainty in investment. This may be stabilized by a national renewable portfolio standard, which would require long-term contracts for renewable energy projects.[24] Offshore renewable energy development in the US is managed by federal policies that differ from state policies. These policies are aimed at the permission, research, and innovation to facilitate technologies such as offshore wind energy.[25] Also, the Progressive energy storage technologies, including the electrochemical batteries, are important in order to incorporate the renewable energy into the grid. The federal rules (especially FERC Order 841)[26] are supposed to enable a structure of participation in the energy storage market, yet further detailed design changes are required to achieve efficient integration.[27] In addition to this, the solar energy policies in the US comprise federal incentives and several state-based initiatives. The challenges are permission procedures, funding processes, and interconnection standards, which differ greatly among states.[28] Renewable energy is greatly affected by the state’s politics, policies, and prices. Policies on renewable energy are influenced by factors like professionalism of the legislature and political affiliations of the governor and the legislators.[29]
1.2.2. India
The legal system in India has developed a renewable energy system to address the challenges and facilitate the normal development of renewable energy. The Electricity Act 2003[30] transformed the power sector by offering reforms, but failed to mention renewables specifically, which slowed down the goal of achieving 175 GW of installed capacity by 2022 in India.[31] Renewable energy is another important player in the energy economy development of the country, as it aims to utilize technologies such as blockchain to achieve transparent energy transitions and peer-to-peer trading to empower prosumers.[32] The Indian government has also put in place a number of policies and frameworks that facilitate the integration of renewable resources, including the Renewable Purchase Obligation and Renewable Energy Certificate.[33] These policies provide incentives to generate RES and also to conform to the regulations of the state and central policymaking.[34] Proper regulation is essential in incorporating renewable energy into the electricity market. The framework should enable the forecasting, planning, and managing of imbalances to provide grid stability and access to renewable sources in the market.[35] In spite of the development, a number of obstacles hinder the wide adoption of renewable resources technologies. These are technical, economic, market-related and institutional challenges. It is necessary to solve these obstacles with the help of policy interventions and improvements of the current legal framework.[36] India has achieved a lot with regard to renewable energy and especially solar and wind energy industries have been very successful in the country. These efforts are still supported by the government which provides the financial, institutional, and educational assistance to ensure the energy security and economic prosperity of the country.[37] The policies of the renewable energy in India match the international sustainability and mitigation of climate change. Presence in international regimes like the UNFCCC will boost the country in the development of renewable energy technologies in addition to responding to world environmental issues.[38]
2. Intellectual Property Rights (IPR) in Renewable Energy
IPRs are important in the encouragement of innovativeness in the renewable energy industry. They offer a framework of the law that secures investments of companies and people in new technologies, knowing that inventors can enjoy the fruits of their labor. This insurance encourages additional R&D, and it is essential to improve the technologies of renewable energy. The renewable energy has been affected by the IPR. Firstly, the high IPR protection is a great stimulus to the procurement of renewable energy since it encourages companies to invest in renewable energy technologies. The higher the protection rights, the more renewable energy production will be resulted in, which will enhance sustainability.[39] Moreover, IPR affects the performance of innovation; an example of this is in China where it was shown that government subsidies in combination with strong IP protection increase the performance of renewable energy enterprises in creative performance. This will aid in R&D as well as increase the ability of companies to innovate.[40] Moreover, the IP protection is a significant aspect of the economic growth, especially in the open economies. It promotes and implements new technologies because it is a secure investment environment.[41] In addition to this, IPRs introduce certain barriers and facilitators; even though IPRs tend to enhance innovation, they may have certain barriers particularly in the use of renewable energy in the developing countries. IRPs are also reliant on the efficiency of R&D and other economic aspects such as the trade openness.[42] Moreover, just like renewable energy, IPRs in agriculture have been observed to maintain innovation and change in technology. They give economic stimulus that promotes R&D and facilitates the innovation of new technologies, including the plant breeder rights in Canada.[43] Later, IPRs also play a vital role in manufacturing industries as far as sustainable innovation is concerned. They assist in unlocking sustainable innovations but occasionally can postpone their dissemination.[44] The main types of IPRs are the following: patents, copyrights, trademarks and trade secrets. Patents protect the novelty by providing the inventor with what is known as an exclusive right which is the right to prevent any other party to produce, use, or sell the invention during a specified period, normally twenty years. Patents in the renewable energy industry provide a high patronage value to companies. Firms that have good patent portfolios, meaning that they have strong patents protection capabilities, are more likely to be overvalued in the market.[45] One of the indicators of technological innovation in renewable energy is patents. Renewable energy technologies have a positively affecting rate of innovation due to the supportive policies of public policies favoring R&D and patenting activities.[46] Other than patenting, software and digital innovations in renewable energy technologies can be safeguarded by copyright. They assist in ensuring that the financial worth of these innovations is guaranteed by avoiding unauthorized reproduction and distribution.[47] The trademarks assist the companies dealing with renewable energy to distinguish their products and to establish brand loyalty. The successful trademark can strengthen market share and consumer trust on renewable energy products.[48]
3. Environmental Regulations and Compliance
The environmental laws contribute significantly to the development of renewable resources projects. These laws strive to create some form of balance between the need to have clean energy and the need to save the environment. Offshore Renewable Energy Projects in the US had environmental and regulatory obstacles, especially in the offshore industry, such as the requirement of detailed Environmental Impact Statements (EIS) and the lack of certainty in determining the ecological impact of new technologies. Regulatory frameworks also engage several agencies and involve much participation by the masses and stakeholders to deal with the physical and biological effects of such projects.[49] The scientific uncertainty and complexity of EIA have prompted delays and opposition among the citizens in Spain. Regulatory improvements should be made to improve the ease of EIAs, increase the participation of the people, preserve the marine biodiversity, and promote the development of renewable energy.[50] In Japan and the EU, the EIA process has been cited as a hindrance to large-scale renewable energy projects, and reforms have been called to bring a balance between protecting the environment and developing the projects. These processes are important in reduction of climate change by ensuring they are streamlined to help with socio-economic problems.[51] The environmental laws of the EU have made a positive impact in embracing and embracing renewable energy technologies. Nevertheless, such regulations should be tangibly combined with environmentally-friendly technologies to make the most of the use of renewable energy. Large-scale renewable projects should have sufficient environmental and social impact evaluation. Such evaluations should take into account ecosystem services and climate resilience to achieve the sustainable potential of renewable energy.[52] An increase in renewable energy infrastructure results in land use alteration, which has the potential to cause harmful effects to ecosystems.[53] The importance of ecosystem services in China has been recognized in a multi-level legal system with both centralized and decentralized structures. These are lawful instruments, such as land use differentiation, payment of ecosystem services, and litigation on the part of the public interest, which are designed to both protect the ecosystems and encourage renewable resources.[54] The EU has had legal problems in the integration of renewable energy objectives with conservation directives, e.g., the Habitats and Birds Directives.[55],[56] The absence of coordination between these instructions may slow down the implementation of renewable energy projects. The solution to these goals is the proposal of adaptive management strategies and detailed plans for renewable energy.[57] The rapid development of RES, especially in such regions as the western US, has been associated with great ecological problems. These are habitat-breaking and the displacement of species. These challenges need to be tackled with effective legal strategies and mitigation activities in order to proceed with the development of sustainable energy.[58]
4. Contractual and Commercial Considerations
A number of contractual agreements and commercial arrangements are involved in the renewable energy industry to make the projects successful and to be developed successfully. It is necessary to have a number of contractual agreements and commercial arrangements. These contracts provide clarity among the p
Challenges in Applying Nationality Law in Cases of Conflicting Laws in Divorce and Physical Separation (The Algerian legislator as an example)
Full text linkThe issue of conflict of laws in personal status matters cannot be studied without starting from the established principle for determining the applicable law. The Algerian legislator has relied on the principle of nationality to determine the law applicable to personal status matters. Based on this, the Algerian legislator considered it the best law or rather the principle of assignment that provides the greatest protection for the Algerian individual and for the Algerian public system according to the different requirements of the state. However, the problem is that the application of nationality law in conflict of laws has resulted in several shortcomings that have undermined the rights of the parties at the individual level, particularly the violation of the principle of gender equality, sometimes compromising the interests of the wife, the difficulty in preserving acquired rights, the problem of recognizing physical separation, and other issues that we will try to highlight in the national symposium.
Keywords: Nationality, divorce, physical separation, challenges, civil law
Introduction
The Algerian legislator has relied on the principle of nationality to determine the law applicable to personal status matters. Based on this, the Algerian legislator believed that it was the best law or, more accurately, the most appropriate principle to provide greater protection for Algerian individuals and the Algerian public order according to the various requirements of the state.
However, the problem arises when applying nationality law in conflicts of laws, which has resulted in several shortcomings that have affected the rights of individuals, especially in terms of gender equality, sometimes compromising the interests of the wife, the difficulty in preserving acquired rights, and the issue of recognizing physical separation.
The Algerian legislator addressed the issue of marital dissolution and physical separation in family relationships involving a foreign element in two paragraphs: in paragraph 2 of Article 12, amended from the Algerian Civil Code, which states: “The national law to which the husband belongs at the time of filing the lawsuit shall govern the dissolution of marriage and physical separation”.
Article 13 of the same law stipulates: “Algerian law alone applies to the situations mentioned in Articles 11 and 12 if one of the spouses is Algerian at the time of the marriage, except with regard to the eligibility for marriage”.
It is noted that the legislator introduced physical separation, which represents a legal category unknown in Algerian law and society.[1]
The legislator used the term “dissolution of marriage” to encompass all forms of divorce, including divorce by the unilateral will of the husband, as well as divorce initiated by the wife’s request or through death. This is evident from Article 47 of the Algerian Family Law, which states: “The marital bond is dissolved by divorce or death”.
As a result, the legislator subjected all forms of divorce to the same law, while some Arab legislations have distinguished between divorce and “talaq”, where divorce is subject to the husband’s law upon pronouncement, and “talaq” is subject to the husband’s law upon filing the lawsuit.[2]
Upon examining Article 12, paragraph 2, and Article 13 of the Algerian Civil Code, it is stated that the national law to which the spouses belong at the time of filing the lawsuit applies when both spouses are foreigners. However, Algerian law alone applies if one of the spouses is Algerian at the time of marriage.
Nevertheless, these two articles raise several issues, especially regarding their application. Therefore, in this discussion, we will address the problems raised by paragraph 2 of Article 12 of the Civil Code (First Section) and the exceptions outlined in Article 13 of the same law concerning the dissolution of marriage and physical separation (Second Section).
1. Issues Raised Regarding Paragraph 2 of Article 12 of the Civil Code
It is mentioned that the Algerian legislator stipulated in paragraph 2 of Article 12 of the Civil Code that: “The dissolution of marriage and physical separation shall be governed by the national law to which the spouse belongs at the time of filing the lawsuit”. However, the criterion set by the legislator, which is the nationality of the spouse at the time of filing the lawsuit, raises several legal issues that negatively affect familial relationships involving a foreign element.
These issues can be summarized as follows: the problem of infringing upon the principle of equality between spouses (firstly), the issue of changes in the spouse’s law between the time of marriage and the time of filing the lawsuit (secondly), and the possibility of fraudulent behavior regarding the law (thirdly).
1.1. The Problem of Infringing upon the Principle of Equality between Spouses
The establishment of applying the spouse’s law at the time of filing the lawsuit to disputes regarding the dissolution of marriage and physical separation has led to extensive debate about this solution.[3]
The Algerian legislator’s choice of this criterion is considered arbitrary as long as the national law to which the spouse belongs is not neutral, thus undermining the principle of equality between men and women, a principle recognized in the Algerian Constitution. Article 32 of the Constitution of the People’s Democratic Republic of Algeria states: “All citizens are equal before the law. No discrimination shall be made based on birth, race, gender, opinion, or any other personal or social condition or circumstance”.
This is stipulated in the Constitution of the People’s Democratic Republic of Algeria, issued by Presidential Decree No. 96-438, dated December 7, 1996, amended, and supplemented. The Official Gazette in its issue No. 76, and Law No. 02-03 dated April 10, 2002, published in Official Gazette No. 25 dated April 14, 2002, Law No. 08-19 dated November 15, 2008, published in Official Gazette No. 63 dated November 16, 2008, and Law No. 16-01 dated March 6, 2016, published in Official Gazette No. 14 dated March 7, 2016. Giving preference to the nationality of the husband over the nationality of the wife is therefore problematic.[4]
Furthermore, the Algerian legislator’s choice of this criterion may be considered arbitrary since the national law to which the spouse belongs is not necessarily neutral, thus infringing upon the principle of equality between men and women, as enshrined in Article 32 of the Algerian Constitution. The Constitution stipulates that “all citizens are equal before the law”, without discrimination based on factors such as gender. Therefore, giving precedence to the husband’s nationality over the wife’s nationality is problematic.
Additionally, applying the criterion of the spouse’s nationality at the time of filing the lawsuit raises the issue of potential changes in the husband’s law between the time of marriage and the time of filing the lawsuit. Consequently, subjecting the dissolution of marriage and physical separation to the law of the husband’s nationality at the time of filing the lawsuit may dissolve the marital bond according to a law that the wife is not subject to, which could be detrimental to her interests.[5]
Therefore, it would be preferable for the legislator to at least consider the nationality of the husband at the time of marriage as the applicable law for both parties or to adopt a similar approach to that taken by the Tunisian legislator in Article 49 of the Tunisian Private International Law Code (Law No. 97 dated November 27, 1998), which states that divorce and physical separation are governed by the common personal law when the lawsuit is filed. In cases of different nationalities, the law of another common domicile of the spouses is applied if available; otherwise, the court applies its own law.
It is noteworthy that the Tunisian legislator prioritized the common personal law between spouses when filing for divorce and physical separation. In cases of different nationalities, the law of another common domicile is applied if available, thus providing an equal solution for both spouses without favoring one law over the other.
Referring to paragraph 2 of Article 12 of the Algerian Civil Code, it also leads to the potential for fraudulent behavior towards the law, which will be further elucidated in the next point.
1.2. The Possibility of Fraudulent Behavior towards the Law
Preferring the time criterion represented by “the time of filing the lawsuit” has the potential to create a phenomenon of fraudulent behavior towards the law, exacerbating the prevalence of this phenomenon.[6]
The phenomenon of fraudulent behavior towards the law (fraus legis) generally refers to the deliberate alteration by the parties of one of the criteria used by the law to determine the applicable legal framework, with the intention of evading the provisions of the law that would originally apply to the relationship.[7]
“In cases where a spouse resorts to changing their nationality to alter the law applicable to the dissolution of marriage or physical separation, especially if the new law provides guarantees not established by the law of their nationality at the time of marriage, it may be difficult to prove the existence of fraudulent behavior towards the law. Therefore, the law of the spouse’s nationality at the time of filing the lawsuit is the law applicable to the dissolution of marriage or physical separation. This could harm the interests of the wife and compromise her legal status”.[8]
This is largely what can be said about the challenges raised regarding paragraph 2 of Article 12 of the Algerian Civil Code. Now, let us inquire about the challenges surrounding the exception found in Article 13 concerning the dissolution of marriage and physical separation, which will be addressed in the next section.
2. Challenges of the Exception in Article 13 of the Civil Code Regarding Marriage Dissolution and Physical Separation
One of the most important articles concerning conflict of laws in personal status matters is Article 13 of the Algerian Civil Code, which states: “Algerian law alone applies in the matters specified in Articles 11 and 12 if one of the spouses is Algerian at the time of marriage, except with regard to the eligibility for marriage”.
Article 13 of the Civil Code is an exception to the rules established in Articles 11 and 12 of the same legislation. This article is among the most controversial and debated in jurisprudence, given the solution it adopts by granting exclusive jurisdiction to Algerian law to decide every dispute covered by the provisions of Articles 11 and 12, where one of the parties is Algerian at the time of marriage.[9]
Therefore, this article raises several issues, including the impossibility for judges to apply Algerian law in the matter of physical separation (firstly), and the impossibility of applying the issue of physical separation from its origin due to the existence of Article 09 of the Civil Code, which subjects adaptation to the law of the judge who does not recognize this legal category (Article 9 of the Algerian Civil Code states: “Algerian law shall be the reference in adapting the relationships whose type needs to be determined in case of conflict of laws to know the law to be applied”).
2.1. Impossibility for Judges to Apply Algerian Law in the Matter of Physical Separation
The method of physical separation, or as some call it, bodily separation (Séparation de Corps), is a system not recognized by the legal systems in most Arab countries.
In an effort by the Algerian legislator to ensure and protect private interests with an international dimension, new provisions were introduced into the rules of attribution by amending the Civil Code for the year 2005, including those relating to physical separation under Article 12/2 of the Civil Code. (Where paragraph 2 of Article 12 of the Civil Code used to read as follows before its amendment: “The national law to which the spouse belongs at the time of filing the lawsuit shall apply to the dissolution of marriage”).
We find that the legislator has subjected physical separation to the national law to which the spouse belongs at the time of filing the lawsuit.
Physical separation is considered an unfamiliar system in Algerian family law, although it is a system practiced in Western countries like France[10], where Article 296 of the French Civil Code states: “La Séparation de Corps peut être prononcée à la demande de L’un des époux dans Les mêmes cas et aux mêmes conditions que le divorce”.
Physical separation refers to the physical separation of the parties to the marital relationship, leading to the cessation of cohabitation between them for certain reasons that may be obvious and may be left to the discretion of the judge who is presented with the dispute.[11]
Physical separation is also defined as: “the cessation of cohabitation between spouses and the suspension of mutual obligations while the marital bond remains intact”.[12]
It is also defined as: “a system that entails the cessation of cohabitation between spouses without the immediate dissolution of the marriage contract, but it may be a reason for divorce if it lasts for a certain period that varies from one law to another”.[13]
Some may initially think that both physical separation and divorce convey the same meaning or entail the same connotations and result in the same consequences, but upon analyzing these terms and concepts, differences and distinctions are found among them.[14]
Where divorce by the unilateral will of the spouse, repudiation, and khul’ at the request of the wife are considered two methods or paths that inevitably lead to the dissolution of the marital bond, while physical separation does not always lead to the dissolution of the marital bond. The spouses may return to their previous status after the end of the period of physical separation, or they may not return to it when physical separation turns into the dissolution of marriage definitively by judicial decision. [15]
Referring to the text of Article 13 of the Civil Code under study, the law applicable to physical separation is Algerian law if one of the spouses is Algerian at the time of marriage. However, the issue raised here is: Can the issue of physical separation be raised between spouses where one of them is Algerian? There are two assumptions: - The first assumption: If we assume that an Algerian married a foreign Christian French woman, here this wife cannot claim physical separation before the Algerian judge because the latter will not rule in her favor, as he is unaware of such a legal institution. The Algerian law does not recognize this system as it contradicts the provisions of Algerian family law, which did not regulate physical separation in the first place. [16]
The second assumption: If an Algerian woman married a French Muslim man, here the French husband cannot claim physical separation before the Algerian judge because the latter will not rule in his favor, considering that Algerian family law did not regulate this issue in the first place. [17]
“Therefore, referral to Article 12 paragraph 02, which includes physical separation, is an unsuccessful referral, because there is an impossibility for there to be physical separation between spouses, one of whom is Algerian, and the application of Algerian law”.
Among the issues raised by Article 13 of the Civil Code is also the lack of objectivity of the attribution criterion represented by the nationality of one of the spouses being Algerian at the time of marriage, which will be addressed in the next point.
2.2. Lack of Objectivity of the Attribution Criterion Used in Article 13 of the Civil Code
The attribution criterion in the text of Article 13 of the Civil Code for determining the law applicable to the dispute is a non-objective criterion, as it exclusively considers the nationality of one of the spouses being Algerian at the time of marriage, regardless of the nationality of the other party, and without giving any consideration to whether Algerian law is the most appropriate for ruling on the dispute before the judiciary.[18]
Another issue is the lack of suitability of the temporal scope of this criterion, as Article 13 of the Civil Code specified the application of Algerian law within a specific timeframe, which is when the person is Algerian at the time of marriage.
Marriage often leads to situations where Algerian law may not be suitable for adjudicating the case before an Algerian judge. For example, if we consider a scenario where an Algerian marries a French woman and the Algerian acquires French nationality while renouncing Algerian nationality, and later the couple decides to dissolve the marriage, and the dispute is presented to an Algerian judge.
Referring to Article 13 of the Civil Code, the applicable law should be Algerian law, since the husband was Algerian at the time of marriage. However, if the husband renounced his Algerian citizenship and acquired the nationality of another country, especially if the couple settled in a country other than Algeria, then how can Algerian law be applied to non-Algerian spouses when the dispute is brought before the Algerian judge? There is no connection between this husband and the Algerian state.[19]
Therefore, it is advisable for the Algerian legislator to reconsider the time frame mentioned in Article 13 of the Civil Code.
Moreover, we question why the legislator does not allow parties the freedom to determine the applicable law for the dissolution of marriage and physical separation. This will be explained in the following points.
Thirdly: The failure of the legislator to allow parties the freedom to determine the applicable law for the dissolution of marriage and physical separation has become apparent. In recent times, private international law tends to leave more room for parties to determine the applicable law [20] Unless the law chosen by the parties violates public policy and public morals.
This is because personal status is a personal matter. Therefore, if the parties agree on the applicable law for the dispute presented before the Algerian judge, there is no objection to applying the law chosen by the parties, provided it does not contradict public policy and public morals.[21]
Conclusion
The rules regarding personal status, particularly in cases of marriage dissolution and physical separation, in relationships involving a foreign element, raise numerous issues. These include the problem of infringing on the principle of equality between spouses by restricting it only to the application of the national law to which the husband belonged at the time of filing the claim, without taking into account the law most appropriate for the wife according to Article 12, paragraph two, of the Civil Code. Additionally, there is the problem of the husband’s law changing between the time of marriage and the time of filing the claim and the possibility of fraud regarding the law.
Moreover, the exception in Article 13 of the Civil Code raises many issues, including the impossibility of judges applying Algerian law in cases of physical separation, and even the impossibility of applying this. The latter is essentially due to the presence of Article 09 of the same law, which subjects the adaptation to the law of the judge who is unfamiliar with this foreign legal category. Additionally, the legislator’s failure to allow parties the freedom to determine the applicable law for marriage dissolution and physical separation has further complicated matters.
Algerian private international law rules regarding personal status have been based on social considerations, with the Algerian legislator envisioning that nationality criteria provide the greatest protection for the Algerian public order. However, this has led to encroachments on individuals’ rights, especially the disregard for acquired rights.
It is more fitting for the Algerian legislator to consider the highly important issue of religious affiliation and its change among individuals when establishing the assignment rules specific to the objective conditions for marriage formation, whether both parties are foreign (Article 11 C.C.) or one of the parties is Algerian (Article 13 C.C.).
Marriage in Islamic law is considered a solemn covenant and is highly sensitive. Therefore, it was necessary for the assignment rules to be clearly formulated in a manner that assists in providing the most accurate solution to all types of disputes arising in personal status matters in general, particularly in marriages with a foreign element.
While the criteria of nationality and its application remain valid to this day, theoretically speaking, it is essential to explore appropriate solutions and strike a balance between various interests, as is the case in comparative laws.
Bibliography
Books:
A’rabb Belkacem, (2003), Algerian Private International Law, Conflict of Laws, Vol. 1, Algeria, Dar Home.
Belyour Abdelkrim, (2005), Lectures on Private International Law in Light of the Amendments Introduced by Law No. 05-10 of 2005, Faculty of Law, Ben Aknoun, Algeria.
Ezzedine Abdullah, (1986), Private International Law, Conflict of Laws, Vol. 2, 9th, Egypt, General Egyptian Book Organization.
Journals and Conferences:
Ait Mansour Kamal, (2010), The Problem of the Applicable Law for Physical Separation and Adoption, Academic Research Journal of Legal Research, Faculty of Law and Political Science, Abdelrahman Mira University, Bejaia, Issue 02, pp. 144-148.
Ait Mansour Kamal, (2015), The Status of Personal Affairs in Algerian Assignment Rules, Academic Research Journal of Legal Research, Faculty of Law and Political Science, Abdelrahman Mir
Decoding Patent Procedures: International Protocols and Innovation Protection in Georgia
Full text linkThis investigation explores the complex processes of obtaining patent rights, concentrating on Georgia’s changing environment and compliance with global accords. A significant turning point in the country’s dedication to preserving intellectual breakthroughs has been reached with the founding of the National Intellectual Property Center of Georgia, or “Sakpatenti”. From the difficulties faced by its forerunner, “Patentcenter”, to the extensive patent statute, Georgia’s path demonstrates its commitment to upholding international standards.
The discourse adeptly navigates the difficulties in acquiring patent rights, highlighting the impact of the Paris Convention and the technical nuances delineated in the Patent Cooperation Agreement. Examining Georgian innovators’ ability to seek patent rights through an international application—thereby expediting cross-border processes—is an important component. The connection between patent systems globally is evident in the global procedure’s ability to facilitate the protection of inventions.
In conclusion, the procedures outlined grant exclusive rights and ensure the balance between innovators’ rights and public knowledge dissemination. Georgia’s harmonization with international norms underscores its commitment to fostering innovation and contributing to the global knowledge economy. The exploration of patent procedures reflects the dynamic nature of intellectual property systems in the face of technological advancements and international cooperation.
Keywords: Patents, “Sakpatenti”, innovation protection, international procedures, intellectual property
Introduction
A key component of intellectual property protection is securing patent rights, which grants authors and inventors exclusive legal rights to their creations. There are several ways to obtain these rights; the process varies based on the kind of intellectual property and the country. The processes for upholding intellectual rights are the main topic of this conversation, especially in light of Georgia’s participation in international agreements like the Paris Convention and the Intellectual Cooperation Agreement.
Since gaining sovereignty in the post-Soviet era, the National Intellectual Property Center of Georgia, or “Sakpatenti”, was established. Its formation has been essential in defining the country’s patent system. Starting with the initial difficulties faced by the former patent examination centre, or “Patentcentre”, the pilgrimage symbolizes Georgia’s dedication to harmonizing its patent operations with international norms and adhering to the extensive processes specified in the country’s patent legislation.
The possibilities for Georgian innovators to pursue patent rights through an international application are highlighted by this inquiry, which also explores the broader framework of multinational patent procedures. Georgians can direct a shortened procedure that includes an international knowledge survey, a 30-month decision-making phase, and a subsequent national patent examination stage in selected countries under the terms of the Patent Cooperation Agreement. This international process promotes the cross-border preservation of inventions and emphasizes how intertwined patent systems are worldwide.
1. Procedure for obtaining patent rights
There is a different mode of obtaining rights to legal objects of intellectual rights,[1] depending on which institution the object belongs to. For example, copyright and related rights are obtained without formal procedures.[2] However, the origin of the rest of the intellectual rights is related to the performance of certain procedures. Obtaining rights to the patent legal object is carried out through a “patent”, which implies that this document issued in the name of the patent owner confirms his special rights. The patent includes the patent certificate and the description of the patent (description of the invention, formula of the invention, drawings (if any), and abstract).[3] The interested person must sign and submit an application to the registering body expressing the desire to receive a patent. As a result of the examination, the patent will be issued or not issued.[4] If a patent is not issued, no patent rights can arise. In the comparative legal context of industrial property protection, one of the main aspects of international cooperation is the convergence of patent procedures of different countries as much as possible. The Paris Convention for the Protection of Industrial Property has established some necessary procedural and administrative norms to grant patents. To have an effective patent system in the country, the convention requires all countries to create a special service for activities in the field of industrial property protection and a central repository so that society can ensure the protection of inventions, utility models, industrial property, and especially, its international protection cannot be implemented,[5] if a party to the convention There will be no national administrative service in the state, which registers industrial property rights and distributes data about them publicly. Patent rights are obtained as a result of conducting a patent examination, which consists of checking the formal requirements of the application and the essential requirements of the invention or utility model contained in it, publishing data about the object of protection after deciding on granting a patent, during which the essence of the invention and utility model is made public because any person Able to familiarize with the description, formula of the invention and other materials. The publication procedure includes a 3-month period during which competitors are allowed to challenge the grant of the patent in the patent itself by filing an appeal. If not, a patent will be issued. A re-examination procedure is also provided, which can be held after the patent is issued and can end with the cancellation of the patent. This procedure step has been introduced in Georgia since 2010 and has been applied by interested parties many times. The Patent Law of Georgia stipulates the listed procedures and the instructions on the procedures related to drawing up, submitting, and granting a patent for an invention and utility model application,[6] are fully compliant with the Paris Convention for the Protection of Industrial Property and the Patent Cooperation Treaty, as well as other international acts, including those to which Georgia is not a party.
The Paris Convention requires the National Service to ensure the periodic publication of the official industrial property bulletin.[7] In all countries that are party to the Paris Convention, this provision is unconditionally fulfilled, and there is an office, usually called a patent or industrial property protection office. This body is the main link of the national patent system for all countries. Such a body in Georgia is the National Intellectual Property Center of Georgia “Sakpatenti”.[8] Before establishing this body, the patent examination centre “Patentcenter” had been operating since January 1992; during its operation, basic instructions were developed, a team of experts was formed, and the application examination began on May 1, 1992. The Patent Center did not have a predecessor organization in Georgia. It was the first national body in the entire post-Soviet space, launched after gaining independence, and it had to overcome many difficulties.
2. Submission of patent application
The rights and duties granted by the law acquire social significance only in the case and under the condition that they can be fulfilled[9]. We believe that rights and duties must be performed voluntarily. To some extent, this appears as a moral guarantee for the use of the rights and duties stipulated by the legislation. For the state to ensure the effectiveness of the law, it also establishes legal guarantees, which are manifested by the implementation of law enforcement measures, which provide for the forced performance of duties, if the obliged party avoids or does not perform a legal action. The basis for changing and terminating the origin of rights and obligations is always the occurrence of a certain fact in reality, which the law gives legal significance and reflects in the relevant legal norms. Such facts are called legal facts. Patent rights obligations arising from the creation of a patentable object, the submission of an application, the publication of an application, the issuance of a patent, the use of patented objects, and the issuance of a patent. Their origination or termination may also occur according to such an event as the arrival or expiration of the term with which the law connects the origination or termination of the given right.
3. Obtaining patent rights through international procedure
Obtaining a Georgian patent, i.e. signing patent rights for an invention in Georgia, can be done through an international procedure, through an international application. By the same procedure, a Georgian applicant can obtain a patent abroad. An international application is an application that is formed according to the terms of the patent cooperation agreement[10]. The mentioned agreement, to which Georgia is also a party, establishes requirements for drawing up and signing an international application. These requirements are called the requirements established by the national legislation of Georgia. According to the agreement, citizens of the party countries, persons with permanent residence or persons with active entrepreneurial activities have the right to submit an international application. A citizen of each party country can submit an application in any language to the patent office of his country or to the relevant office indicating the country where patent protection is sought. If the application is not made in the working language of the contract, then it must be translated into one of these languages (English, Russian, French, German, Japanese, Chinese, Spanish).[11] If a foreign applicant mentions Georgia, the application must be written or translated into English or Russian.[12] A citizen of Georgia, in turn, can submit an international application to “Sakpatenti”, which will perform the functions of the receiving agency and, after checking the formal requirements in the agreement, will ensure that the application is forwarded to the international bureau. The applicant is obliged to pay the basic international application fee, the amount of which is determined by the International Bureau.
publication[13] after 18 months from the priority. The date of delivery of the international application is determined based on this fact. It will be considered the application filing date in all countries participating in the agreement.
Based on international information research, the authorized body prepares a report containing data on the identified analogies.[14] Information research is preferably conducted using patent information. An international report is sent to the applicant, who evaluates his invention and outlines the countries where he would like to receive a patent. In addition, the applicant may withdraw the application if he is convinced of the weakness of the invention’s patentability. The final selection must be made no later than 30 months after the priority date, and the application must proceed to the national phase stage of the patent examination of the chosen country. A period of 30 months is also given to the applicants of those countries who want to conduct the international preliminary examination provided for in the second chapter of this agreement.
Based on the preliminary examination conducted by the above-mentioned authorized body, a documentary conclusion is drawn, indicating whether the unwritten invention in the application meets the patentability criteria.[15] The conclusion will be sent to the applicant, which marks the end of the international procedure. After that, the applicant must move to the national phase per the requirements of all the countries where he wants to obtain a patent. It should be noted that according to the agreement, the national patent office is not required to rely on the conclusion of the preliminary international examination. A patent is issued in compliance with all requirements of national normative acts. When transferring the application for a Georgian patent to the national phase, it must be translated into the Georgian language. Based on the international application and the submission of an international application by a Georgian citizen, the possibility of obtaining a patent in a foreign country is governed by the norms of the Patent Law of Georgia, which contains norms and indicates the use of the patent cooperation agreement.[16] Unfortunately, the official Georgian translation of this agreement has not been published yet.
4. Check for newness
A novelty check is carried out, and a decision is made based on it according to Articles 35 and 42 of the Patent Law of Georgia. Novelty is checked by looking for the analogy with one of the searched objects by comparing the set of essential features of the claimed invention or utility model.[17] When checking, only the set of essential signs given by the dependent clauses of the formula is taken into account. As for the object with which the invention is compared during the examination of novelty, the combination of its essential features, expressed in any form, is taken into account.[18] For example, if a drawing or diagram conveys a set of essential features in a way that is fully comparable to the set of features of the invention, then it is sufficient to analyze that drawing or diagram without other materials. When analyzing an article or other description, any part sufficiently conveys a set of essential features for comparison is considered. A similar rule applies when analyzing the description of the contested invention. In addition, it should be noted that all previously filed applications that were not filed before publication are checked in “Sakpatenti”. An earlier application by the same inventor that was not granted a patent is not considered when checking for novelty.
If, during the inspection, it is found that the set of essential features of the alleged invention is identical to the set of essential features of the analogue, then the invention is not new, and the patent office is obliged to issue a negative decision regarding the granting of a patent.
Conclusion
In summary, the processes involved in acquiring patent rights are complex and dynamic, changing to meet global collaboration needs and technological improvements. Georgia has demonstrated its commitment to promoting innovation and safeguarding intellectual property by forming “Sakpatenti” as the country’s national patent authority and ratifying the Paris Convention and Patent Cooperation Agreement.
The international component, which gives Georgian innovators access to a streamlined and effective process for pursuing patent rights, illustrates how intertwined the world’s intellectual property landscape is. Navigating the complexities of patent application delivery, publication, and the ensuing national and international stages reveals that the system’s efficacy rests in its capacity to strike a balance between innovators’ rights and the need to disseminate public knowledge.
The processes described here provide a way to guarantee the originality and creativity of works while also giving exclusive rights in the dynamic field of intellectual property. Georgia’s efforts to promote innovation and support the global knowledge economy are demonstrated by harmonising its patent procedures with international standards, even as the country continues to negotiate this complex terrain.
Bibliography
Scientific papers:
Kanagavel, P. (2003). Intellectual Property Rights: A Comprehensive Overview. J. Pat. & Trademark Off.
Merges, P. R., Duffy, F.J. (2010). Patent Law and Policy: Cases and Materials. Carolina Academic Press.
Books:
Bennett, B. Study on Accession to the Madrid System for the International Registration of Marks. Wipo.
Dzamukashvili, D. (2017). Intellectual Rights Law. Bona Kauza.
Sen, A. (2012). Elements of a Theory of Human Rights. 1st Routledge.
(2016). Understanding Copyright and Related Rights.
Legal Acts:
Patent Law of Georgia. <https://matsne.gov.ge/ka/document/view/11470?publication=9>
The Paris Convention for the Protection of Industrial Property.
Internet Sources:
<https://www.sakpatenti.gov.ge/ka/page/40/>
Footnotes
[1] Kanagavel, P. (2003). Intellectual Property Rights: A Comprehensive Overview. J. Pat. & Trademark Off. 664-665.
[2] WIPO. (2016). Understanding Copyright and Related Rights. 4-8.
[3] Georgian Patent Law. (1999). Article 2. <https://matsne.gov.ge/ka/document/view/11470?publication=9>
[4] Georgian Patent Law. (1999). Section 6. <https://matsne.gov.ge/ka/document/view/11470?publication=9>
[5] Dzamukashvili, D., (2017). Intellectual Rights Law. Bona Kauza. 302.
[6] Ibid. 303.
[7] The Paris Convention for the Protection of Industrial Property, an international agreement established in 1883, is one of the key treaties governing intellectual property rights.
[8] Dzamukashvili, D., (2017). Intellectual Rights Law. Bona Kauza. 309.
[9] Sen, A., (2012). Elements of a Theory of Human Rights. 1st Edition. Routledge. 25-28.
[10] <https://www.sakpatenti.gov.ge/ka/page/40/>
[11] Dzamukashvili, D., Intellectual Rights Law. Tbilisi. 2017. 325.
[12] Georgian Patent Law. (1999). Article 74. <https://matsne.gov.ge/ka/document/view/11470?publication=9>
[13] Ibid. Article 75.
[14] Bennett, B. Study on Accession to the Madrid System for the International Registration of Marks. Wipo.
[15] Georgian Patent Law. (1999). Article 35. <https://matsne.gov.ge/ka/document/view/11470?publication=9>
[16] Georgian Patent Law. (1999). Article 72. <https://matsne.gov.ge/ka/document/view/11470?publication=9>
[17] Ibid. Articles 35, 42.
[18] Merges, P. R., Duffy, F. J. (2010). Patent Law and Policy: Cases and Materials. Carolina Academic Press. 55