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BOYCOTTING PRODUCTS: A DETERRENT APPROACH BY CONSUMER PROTECTION ASSOCIATIONS
Full text linkBoycott is considered one of the most important means employed by consumer protection associations to deter interveners in product presentation for consumption and halt their illegitimate practices against consumers. It involves systematic refusal and voluntary abstention from consuming the products of a company or a country to pressure or compel them to respond to specific demands by urging consumers to boycott purchasing a certain product, using a particular service, or boycotting paying its price. Despite the importance and effectiveness of this method, there is a noticeable absence of regulation that precisely defines the powers of consumer protection associations to resort to it, thus its legitimacy remains a subject of debate between opponents due to social, economic, and legal considerations, and supporters for the same reasons.
Based on this premise, this study aims to investigate how consumer protection associations intervene within their deterrent role framework by advocating for boycotts to maintain a balance between consumer interests and protecting interveners, considering the economic harm that this method may inflict on their interests.
Keywords: Boycott; Consumer Protection Association; Consumer; Intervener; Deterrence; Legitimacy; Legal Considerations; Economic Considerations; Social Considerations.
Introduction
The evolution witnessed in the social, industrial, and technological fields has led to increased consumer fever, especially in the face of excessive advertising that has contributed to changing consumption patterns and values. Despite the benefits this evolution brings to consumers regarding comfort and life facilitation, it has not been without some drawbacks for them. Therefore, there is an urgent need for protection, which consumers cannot achieve on their own but rather by resorting to consumer protection associations as a regulatory mechanism. Algerian legislation has recognized these associations under Article 21 of Law No. 09-03 concerning consumer protection and the suppression of fraud.[1] These associations are established according to the law and aim to ensure consumer protection through informing, raising awareness, and guiding them. They are also granted public utility status as well as legal personality and civil capacity upon establishment, in accordance with the provisions of Article 07 of Law No. 12-06 concerning associations,[2] which regulates their establishment and operation.
Consumer protection associations have the authority to take proactive measures to prevent interference with consumers’ material and moral interests. These measures aim to enhance their fundamental rights, particularly the right to awareness-raising, to educate and inform them about their rights. This is intended to guide and rationalize their consumption behaviour and prepare them to face potential risks. On the one hand, they work towards educating consumers and guiding their consumption behaviour, while on the other hand, they monitor market prices to ensure consumers can access goods and services that combine quality with reasonable pricing.
However, practical reality has shown the inadequacy and inefficiency of preventive measures in ensuring sufficient consumer protection against interveners who may abuse their strong position. Therefore, consumer protection associations are left with no choice but to resort to bolder mechanisms and means to defend the rights and interests of consumers.
Boycotting is considered the most important deterrent method employed by consumer protection associations in facing interveners, urging them to halt their unlawful practices against consumers. It involves a systematic refusal and voluntary abstention from consuming the products of a particular company or state to pressure them or compel them to respond to specific demands. Despite its effectiveness in curbing the defiance of professionals, it’s notable that Algerian legislation does not explicitly address it.
In light of this legislative deficiency, the importance of researching the mechanism of boycott in detail becomes evident. Understanding the limits of resorting to boycott is essential to ensure its legitimacy. Therefore, the research topic raises the following problem: To what extent is it possible for consumer protection associations, within their deterrent role, to resort to the boycott method, and how can they ensure maintaining a balance between consumer interests and protecting interveners? This includes mitigating the potential economic harm this tool may inflict on their interests.
The study relied on both analytical and descriptive methodologies. The analytical approach allowed for analyzing facts and the legal texts regulating the subject, highlighting the areas of deficiency and voids. Meanwhile, the descriptive approach involved including some definitions whenever necessary, based on a plan divided into two sections as follows:
Boycott as an Acknowledgment of Consumer Authority in Regulating Intervener Behavior.
The Ongoing Debate Regarding the Viability of Resorting to the Boycott Method.
1. Boycott as an Acknowledgment of Consumer Authority in Regulating Intervener Behavior
Boycott is considered an effective deterrent weapon in facing interveners and an efficient tool for influencing their will due to the economic harm it can inflict upon them, such as decreased sales volume and exports, which may lead to bankruptcy. This necessitates investigating its content (1.1) and highlighting its manifestations (1.2).
1.1. The Content of the Boycott Method
Boycott is considered an effective deterrent method against the negative practices of interveners (1.1.1), It requires public mobilization against such behaviour and care from consumer protection associations (1.1.2).
1.1.1. Boycott as a Deterrent Method against the Negative Practices of Interveners
A Boycott is a systematic refusal and voluntary abstention from consuming specific products to pressure interveners into offering products for consumption, compelling them to respond to specific demands. Therefore, it is considered a popular regulatory behaviour and a legitimate reaction that a large segment of consumers exercise whenever necessary. Through boycotts, consumers demonstrate their authority in regulating the negative practices of interveners. It serves as a method to control and prevent transgressions that may harm consumer interests, such as monopolization, speculation, and price gouging without any regulations. It is one of the strongest forms of protest and often yields results, sometimes leading interveners to apologize to consumers or reduce prices lower than they were before the increase.[3]
For boycotts to be fruitful, consumers must have alternative products or services to replace the boycotted ones, allowing them to satisfy their needs. Therefore, boycotts express a universal right, the right to choose for the consumer. This enables market regulation as consumers, when mature and aware, evaluate and choose products, making them active participants in the economic cycle.
It is noteworthy that Algerian legislation does not explicitly address the legality of this method. Hence, its legitimacy is assumed, provided it is not arbitrarily used. It becomes legitimate when it is the only remaining means after consumer protection associations have exhausted all other avenues to protect consumers.
1.1.2. Boycott as a Means of Public Mobilization by Consumer Protection Associations
The effectiveness of a boycott depends on the level of interaction and the strength of public mobilization by consumer protection associations. This is achieved by exposing the risks of goods or services to raise awareness and encourage consumers to say “no” to producer, distributor, and trader misconduct, utilizing various available media and communication channels.[4]
It should be noted that the right of consumer protection associations to call for boycotting certain products is limited to ensuring their harm to the health and safety of consumers or their overpricing, poor quality, and inferiority. Thus, any boycott campaign must be based on well-founded arguments and justifications, not arbitrary ones, to ensure the response of all segments of society. Additionally, transparency requirements dictate that these associations disclose their identity to the public on their websites, for example, to enhance their credibility and prevent misuse. For instance, a company may intentionally launch a campaign against its competitors, presenting it as popular. Therefore, to ensure objectivity, boycotters must publicly disclose their identity and agenda alongside their call for boycott. Based on this, consumers make their own decisions.[5]
1.2. Forms of Boycott
Boycotting can take the form of encouraging consumers to boycott the purchase of a specific product or the use of a particular service (1.2.1) or boycotting the payment for it (1.2.2).
1.2.1. Purchase Boycott
Consumer protection associations sometimes resort to issuing orders or notices urging the public to refrain from purchasing certain goods or engaging with a specific project. This method is expressed through boycotting or abstaining from purchasing,[6] either for reasons related to consumer safety and interests if their danger to health is confirmed, as was the case with mineral water that the National Organization for Consumer Protection called for boycotting. This came after it was revealed through analysis that it did not comply with microbiological standards due to coliform and Pseudomonas bacteria.[7]
The call for a boycott may also be in response to unjustified price hikes. Boycotting products has become a potent weapon in the hands of consumers when prices cross certain thresholds, reacting to speculation and hoarding by professionals even during times of crisis. This was evident during the COVID-19 pandemic, where some food prices surged, leading to panic buying fueled by rumours of shortages, such as the case with semolina in Algeria, a staple food whose price reached 1700 DZD instead of 1200 DZD.[8]
Similar incidents occurred in France, where consumers boycotted buying meat following a boycott campaign launched by consumer protection associations against producers, leading them to refrain from using estrogen in livestock feed.[9]
Additionally, boycott calls may be based on political or humanitarian considerations due to cooperation or collusion with illegitimate political regimes. Examples include boycotts by Islamic and Arab nations of products from countries hostile to Muslims, those disrespectful to Islam or its sanctities, such as boycotting Chinese products due to reports of mistreatment of Muslim Uighur minorities,[10] or the boycott of Denmark and the widespread boycott campaign against French goods over the continued publication of offensive cartoons of the Prophet Muhammad,[11] as well as the Canadian boycott of American products in response to provocative and hostile rhetoric from President Donald Trump towards Canada and its Prime Minister, including trade threats with high tariffs on steel and aluminium imports from Canada,[12] in addition to the boycott campaign against many American and Western companies due to their direct support or alignment with Israel in its aggression against Gaza.[13]
In such cases, a boycott becomes a double-edged sword, serving as a form of protest and voluntary abstention from consuming products of a certain company or country while also expressing refusal to engage in any economic relationship or trade exchange with them, to pressure them to change their policies towards a specific issue or cause.[14]
1.2.2. Payment Boycott
Consumer protection associations may request consumers to refrain from paying for a product or service they have obtained from a specific project, known as a “payment strike” or “payment refusal”. The resort to payment boycott assumes the presence of several consumers indebted with similar amounts to a single creditor, such as tenants in their relationship with a single landlord or subscribers to a telephone service. The goal of delaying payment of these debts is to pressure the creditor to reduce the amount owed or compel the intermediary to improve the quality of the product or service, or at least improve its performance.[15]
Consumer protection associations can resort to this method voluntarily or based on consumer complaints in poor or inconsistent service quality cases. This is particularly evident in services such as non-paying electricity, gas, or water bills.
2. Ongoing Debate Regarding the Viability of Resorting to the Boycott Call Method
The absence of legal texts defining the authority of consumer protection associations to resort to the boycott call method has sparked a debate about its legitimacy between opponents (2.1) and supporters (2.2).
2.1. Opposing the boycott advocacy approach
The call for boycott did not pass without objection due to economic (2.1.1), social (2.1.2), and legal considerations (2.1.3).
2.1.1. Economic considerations for rejecting the boycott advocacy approach
The economic considerations for rejecting the boycott approach revolve around the risk this action poses to the economic interests of the boycotted entities. This includes potential negative publicity for the company or its products, creating unfavourable impressions among consumers who may subsequently prefer to purchase competitors’ products. Additionally, there’s the risk of significant financial losses, potentially leading to bankruptcy.[16]
2.1.2. Social considerations for rejecting the boycott advocacy approach
Social considerations used to justify the illegitimacy of the boycott approach stem from consumers’ inability to do without certain essential products, particularly if there are no competitive alternatives available in terms of price and quality, such as medication.[17] Moreover, the boycott could yield adverse outcomes if competitors exploit the situation to increase prices of alternative products.
2.1.3. Legal considerations for rejecting the boycott advocacy approach
Opponents of the boycott approach argue that it violates the law and infringes upon an important principle: the contractual principle, as outlined in Article 106 of the Civil Law.[18] This principle mandates that contracting parties adhere to the terms of their agreement, which cannot be modified or annulled without their mutual consent.
Additionally, if consumers refuse to pay, creditors can insist on payment without resorting to legal action, as per Article 123 of the Civil Law. Failure by the creditor to fulfil contractual obligations is a prerequisite for resorting to such measures.
2.2. Advocating for the boycott approach
If the previous trend opposes resorting to the boycott approach, another trend supports this method for the same economic (2.2.1), social (2.2.2), and legal considerations (2.2.3).
2.2.1. The economic considerations of the legitimacy of advocating for the boycott approach
The economic considerations that make advocating for the boycott approach legitimate lie in its economic benefits, the most prominent of which is breaking free from the economic dependency and dominance of economic agents over the market. Consumer recourse to boycott will impact the market and compel companies to reduce prices, as seen in the case of the largest boycott operation in Algeria concerning the automobile market. This market experienced widespread abuses and significant price manipulation by car dealers in the country, which ended with accredited brands in Algeria succumbing to the pressure of the campaign, reducing their prices after a significant decline in citizens’ purchasing, especially after the state revealed the true prices, exceeding by 25% the prices declared to the government.
Boycotting foreign products also encourages local industry. For example, by boycotting detergents like “Ariel”, dozens of national companies emerged producing similar and alternative detergents. Regardless of any complaints about quality weaknesses, the high demand for these products will compel them to improve quality and satisfy the consumers and other industries.
2.2.2. The social considerations for the legitimacy of advocating for the boycott approach
As for the social benefits of boycotting, they lie in protecting public health in society, as seen in the American boycott of some products that are very harmful to health, such as boycotting cigarette products (Marlboro, Merit, LM), which are marketed to minors.
2.2.3. The legal considerations for the legitimacy of advocating for the boycott approach
The legal considerations for the legitimacy of advocating for the boycott approach stem from it being an inevitable result of legal evolution, which allows for accommodating this method as a last resort if consumers are in a weak position and have no other means than a collective refusal to pay amounts until their demands are met.[19]
Given the silence of the Algerian legislature regarding this approach, its legitimacy is assumed. However, caution is necessary in carrying out this role due to the potential effects it could have on institutions due to the rejection of their products and services. This requires ensuring certain conditions before resorting to it, considering the significant consequences it may entail for the parties involved, whose fate depends on the extent of consumers’ response to the matter.[20]
In this regard, the French judiciary has adopted a moderate stance, where the boycott is not considered wrongful unless the association abuses its use.[21] Some have stipulated two conditions for its legitimacy: that it aims to protect the consumer from the involved interveners and that the reasons are justified, legitimate, and serious.[22]
Therefore, it is necessary to address the boycott method, whether from the perspective of consumer protection and fraud suppression laws or competition law. It is more appropriate to enact a legal provision explicitly recognizing this action for consumer protection associations, along with its regulation, such as the obligation to notify the Competition Council before engaging in boycotting a product or economic aid, as well as specifying a certain period granted to the aid recipient who has been proven to violate either fair competition rules or consumer protection laws to cease their violation. This approach should only be resorted to as a last resort.[23]
Conclusion
The bloc within the framework of associations is considered the most important means of consumer protection, which adopts deterrent defensive means for this purpose, constituting what is known as the deterrent role of consumer protection associations, the most important of which is the boycott approach. Through this study, the following results were reached:
The boycott approach reflects consumer sophistication, awareness, and personal commitment, which extends to others without noise or crowds solely through the transmission of information through awareness-raising media campaigns.
The boycott approach is a pressure tactic that follows deterrent methods against interveners who violate market regulations and fair competition. However, practically, these associations face difficulties in achieving their goals as desired, which can be summarized as follows:
The legislature’s silence on explicitly stating the legality of resorting to it deprives it of the necessary freedom to be adopted.
In addition, the varying levels of knowledge among consumers, who are unaware of the protection guaranteed to them by the law and lack consumer culture, make them indifferent to the efforts and activities of these associations and the advertising campaigns they launch against non-compliant products and call for their boycott.
Therefore, it is necessary to strengthen the legal system in the field of consumer protection with additional measures that enhance the deterrent role of consumer protection associations. To achieve this, the following suggestions can be made:
Explicitly state the right of consumer protection associations to resort to boycott advertising and precisely specify the conditions for its adoption and the procedures followed to give it the necessary legitimacy when resorted to. This grants them freedom and credibility and protects interveners from arbitrary use of this right.
Make various state-owned communication channels accessible to associations to convey information to the largest possible number of people.
Bibliography
Journal Articles
Bouchnaf, S. A., & Ben mihoub, A. M. (2020). The role of Algerian consumer protection associations in confronting misleading marketing practices - a study of a group of consumer protection associations in Algeria. Ertiqaa Journal of Economic Research and Studie, Volume 01, (01).
Buklikha, A. I. (2022). Chinese policies towards the Uyghur minority/Xinjiang region. Journal of Science and Knowledge Horizons, 1(2).
Mbani, N. O., & Issawi, A. L. (2021). Consumer Awareness and the Culture of Boycott in Society - Media and Social Dimensions. Journal of Media and Society. Volume 05, (01).
Yousfi, M. U. (2016). Boycott of European Goods in Light of International Trade Law and Islamic Legislation, A Case Study of Cartoons Insulting to the Messenger, may God bless him and grant him peace. Studies in Development and Society, 3(3).
Books
Boudali, M. U. (2006). Consumer Protection in Comparative Law, A Comparative Study with French Law. Algeria: Dar Al-Kitab Al-Hadith.
Calais-auloy, J. E., & STEINMETZ, F. R. (2006). Steinmetz, F., Droit de la consommation, Dalloz, Paris, (éd. 7). Paris: Dalloz.
Ferrier, F. E. (1996). La protection des consommateurs. Paris: Dalloz.
Guyon, Y. V. (2003). Droit des affaires (éd. 12). Pari
ADVOCATES EXEMPTION FROM LIABILITY UNDER CONSUMER PROTECTION ACT: OPENING OF A PANDORA BOX OF EXEMPTIONS?
Full text linkA two-Judge Bench of Honourable Supreme Court (SC) of India in Bar of Indian Lawyers Through its President Jasbir Singh Malik v. D. K. Gandhi PS National Institute of Communicable Diseases and Anr (2024).[1] held that professional services rendered by advocates fall under “contract of personal service” as opposed to a “contract for service” and accordingly, advocates are exempt from liability for deficiency in services under the Consumer Protection Act (CPA), 2019. The judgement brings the contentious issue of advocate’s liability as ‘service providers’ under the Act back to focus. The case arose out of challenge to a ruling by National Consumer Disputes Redressal Commission (NCDRC) in D.K. Gandhi PS v. M. Mathias (2007) [2]. The NCDRC made advocates liable as service providers under CPA. The apex court, in fact, also went on to opine that the landmark SC ruling by three-judge bench in Indian Medical Association v. V P Shantha (1995)[3] delivered almost 3 decades ago needs reconsideration and referred it to the Chief Justice for determination by a larger bench. This article seeks to uncover the liability of advocates as service providers in light of landmark supreme court judgements and the implications of recent judgement on other professions.
Keywords: Advocates, Service, Deficiency in Service, Consumer Protection
Introduction
The consumer movement primarily started in the west. Carlill v. Carbolic Smoke Ball Company[4] was one of the notable early cases which recognised the liability of the manufacturer for certain minimum standards of quality. Donoghue v. Stevenson[5] was another leading case where it was held that manufacturer owes a duty of care towards end-consumer. Thus, the consumer movement kept gaining significant momentum over the years. The United Nations- General Assembly approved guidelines for protection of interests of the consuming class on April 9, 1985. These guidelines intended to encourage governments across the globe to develop consumer protection through appropriate legislation. United Nations Guidelines on Consumer Protection provide that there exists great asymmetry on all frontiers-economic, educational and bargaining power between the business class and the consuming class and consumer protection becomes all the more necessary, more so in developing countries.[6]
The Consumer policy framework as laid down in UN Guidelines stressed on consumer rights and accordingly CPA came up in India in 1986. It had the noble intention of ensuring justice which is simple, speedy and inexpensive. It aimed to address major issues associated with commercial litigation-time, cost and technicalities. The proceedings under the Act are also to be conducted through summary trial. The strict rules of civil procedure code or the Evidence act are not required to be followed by consumer commissions. Another distinct feature of the legislation was that one doesn’t need to engage the services of an advocate. A consumer could fight his case on his own. However, the experience over the years shows that the consumer self-representation at consumer courts has taken a serious hit and complainants engage the services of advocates in majority of cases. It is very difficult to find consumers at consumer courts. On account of changed market dynamics- international supply chains and the massive growth of E-commerce the law needed to catch up. Accordingly, the new CPA 2019 replaced the erstwhile 1986 legislation. The Act provides that the consumers aggrieved by defect in goods or deficiency in service can seek relief by filing consumer complaints before appropriate consumer disputes redressal commissions.
In D. K. Gandhi PS National Institutes case [7] the two-Judge Bench of SC held that services rendered by advocates falls under “contract of personal service” as opposed to a “contract for service” and accordingly, advocates are exempt from liability for deficiency in services under the CPA, 2019. The judgement brings the contentious issue of advocate’s liability as ‘service providers’ back to focus. The case arose out of challenge to a ruling by NCDRC in D.K. Gandhi PS v. M. Mathias [8].(2007). The NCDRC held advocates liable as service providers under CPA.
1.THE CASE AT HAND: FACTUAL MATRIX
Mr D.K, Gandhi-the complainant/respondent availed the services of appellant advocate and a complaint was filed against Kamal Sharma. The said complaint was filed under Section 138 of Negotiable Instruments (NI) Act, 1881. The issued cheque of Rs 20,000/- got dishonoured. Later on, the accused Kamal agreed to pay back Rs 20,000 and additional Rs 5000 for expenses suffered by Mr Gandhi. The respondent claimed that appellant has received the cheque from the accused on behalf of the respondent, however has not provided it to him and instead demanded Rs 5000/- as fees for his services. The appellant also filed a suit in the court of Small Causes, Delhi for recovery of Rs. 5000/- Later though the Demand Draft of Rs. 20,000 was handed over to the respondent but the cheque of Rs 5000 was not paid as Kamal did stop payment at the instructions of appellant.
Aggrieved by this, the respondent filed a consumer complaint claiming total Rs 15000/ that included cost for mental agony and harassment. The appellant raised the argument that the advocates are not contemplated to be covered by CPA. District Forum rejected the contention and decided in favour of respondent. The State Commission reversed District forum’s order and held advocates are not covered by the Act. The NCDRC overturned the ruling and laid that advocate too are covered by the CPA.
Aggrieved by NCDRC’s order, the present appeal was preferred by the appellants. The Apex Court held services rendered by advocates to be falling under “contract of personal service” as opposed to a “contract for service” and accordingly held advocates not exempt from liability under CPA, 2019.
1.1 SERVICE PROVIDERS LIBAILITY: INDIAN MEDICAL ASSOCIATION CASE
CPA covers cases of defective goods as well as deficient services. Indian Medical Association v. V P Shantha (1995) involved an interesting question as to whether a medical practitioner can be said to be providing service under the Act. The legal team of Indian Medical Association (IMA) argued the distinction between occupation and profession. While the services rendered as part of occupation attracts being a service, the professional service providers like medical professionals are not intended to be covered. The medical professionals are already covered by Medical Council of India (MCI) and are governed by Medical Code of Ethics. It was also contended that in professions like medicine failure and success depends on many factors outside the control of medical practitioners. They also claimed that \u27which is made available to potential users\u27 partakes to only institutional type services, i.e., commercial enterprise to the exclusion of professional service providers.
It was also argued from IMA that ‘service’ needs to be evaluated and judged on specific norms of quality. nature and manner of performance. There exist no standards for evaluating and judging medical practitioners’ services cannot be equated with a commercial service. SC disagreed with the contention and referred to Section 14 of the earlier legislation by quoting the nature of reliefs for deficiency in services provided under the Act: As per Section 38 of CPA 2019, the following reliefs can be granted to the complainants in case of deficiency in services.
(c) Return of price/charges along with interest, as may be decided,
(d) compensation for any loss/injury suffered due to the negligent act or omission of other party:
(f) removal of defects in goods/ deficiency in services;
The term ‘Service’ means “service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”;[9] It can be bifurcated into three parts as follows:
The use of word ‘potential’ mentioned in the main part of the definition conveys an extensive meaning in the sense that the word ‘any description’ and ‘potential’ includes something which does not exist for now but which will come in existence at some future time. The way this part is spelt out indicates the legislative intent that the term is accommodative and ever evolving with time.
The second part of the definition provides idea as to suggestive services-banking, financing, insurance, transport, processing, etc. In fact, even in Lucknow Development Authority case, the SC held that ‘housing’ too is service and was included in the definition later on in 1995.
The Exclusionary part lays down that when services are provided free of charge (without consideration) and when provided under a contract of service, are to be excluded from the definition of service. ‘Contract of service’ and ‘contract for service’ are significantly different. ‘Contract for service’ means a kind of arrangement in which one party renders service (professional or technical) where service provider is not subject to superintendence of the service recipient.[10] ‘Contract of Service’ refers to a scenario where service provider is under the supervenience of the service recipient. It’s like a master-servant relationship- master dictated what is to be done, when is to be done and how is to be done. The servant does not exercise autonomy and discretion in work unlike a professional. The exclusionary part of the definition intentionally uses \u27contract of personal services\u27
1.2 ENLARGED SCOPE OF DEFICIENCY IN SERVICE UNDER CPA, 2019
It is also important to note the definition of ‘Deficiency’ under CPA, 2019 with regards to the issue. “Deficiency means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and includes—
(i) any act of negligence or omission or commission by such person which causes loss or injury to the consumer; and
(ii) deliberate withholding of relevant information by such person to the consumer”;[11]
Under the earlier CPA, 1986 deficiency was provided as: ‘deficiency’ means “any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”[12]
Thus, definition of ‘Deficiency’ under 2019 legislation is much more comprehensive and wider than the one under earlier 1986 legislation. The latest definition also expressly provides the acts of negligence or omission or commission and withholding of information deliberately which causes an injury or injury to consumer as elements of deficiency. It is very ironical that the medical services which was held to be a service by the apex court under the previous definition of deficiency. With the addition of the aspects of negligence/act/omission/withholding of information causing loss or injury, it is all the more ironical that the services of advocates have been excluded from the framework of CPA.
THE DISTURBING JUDGEMENT:
SC in D. K. Gandhi case emphasised that professionals cannot be appraised at part with businessmen or traders. The later involve a deep-rooted commercial aspect. It stated that including the advocates as service providers will be a very far- fetched interpretation. The court also held that making advocates liable under the act might lead to multiplicity of litigation and many vexatious claims might be brought before the court. It shall seriously hit the objective of providing timely and inexpensive relief to the consumers. SC even went on to state that the legislature never intended to include professional service providers. This is sharp contrast to the ruling of 3 judge bench of the SC in 1995. The bench in the recent case, invoked Order VI Rule 2 of the Supreme Court rules to refer the matter to a larger bench. Referring the matter to Chief Justice for consideration by a larger bench and simultaneously also exempting advocates from CPA sets a very bad precedent and is a clear case of judicial indiscipline.[13]
As regards the advocates liability, the duties of an advocate are provided under The Advocates Act, 1961. The advocate owes duties towards the court, client, opponent and professional colleagues.[14] There can be conflicting situations at times. However, the duty towards the court in administration of justice assumes great significance. In fact, the lawyers have been exempted from consumer protection regime in several other jurisdictions too. Their services are well recognised in administration of time and are accordingly taken to be sui-generis.[15] The court held that advocates can be made liable under civil/criminal law. But holding them liable under consumer protection law will be against the legislative intent.
The NCDRC had held that services provided by lawyers fell under CPA. It did acknowledge that an advocate cannot be made liable for unfavourable outcome of a case of complainant There are many factors which decide the outcome and many of such factors are beyond control of advocate. However, a total exclusion from liability goes against the basic tenets of the Act.
Even with regards to medical services, if they are excluded from CPA, it shall seriously affect the range of rights available to patients. Though it is true that the professional bodies like MCI do provide a recourse to the affected parties, the rights available under CPA are much wider and it extends far beyond practitioners in individual capacity and also includes the institutions they are affiliated with. Comparatively, this offers a wide bouquet of remedies than the one provided by professional bodies. Thus, judgement might just open the pandora box for other professions to seek exemption on similar grounds-Medical, Chartered Accountants etc. to name a few.
CONCLUDING REMAKRS:
Medicine, Law and Teaching are held to be oldest professions. It is true that these are noblest of professions however one also needs to be in sync with the changing times. The consumerism has expanded like never before and arguably the three oldest professions are also the most commercialised ones today. The consumer seeks value for money from the service provider. Like there is a Bar Council of India (BCI) for Advocates, there also exists the Medical Council of India (MCI) for the medical professionals. The current ruling is likely to dilute consumer law. It opens the doors for many other professions to seek exemptions on similar ground. A professional by its very nature is governed by a professional regulatory body. By that logic most professions will have to be left out to the detriment of consumers. The recent ruling of the supreme court might open the pandora box for many other professional service providers to be claiming exemption on similar ground. A blanket exclusion for advocates shall do more harm than good. One only hopes that the larger bench of the Supreme Court gives an all-pervasive consideration on the issue with a consumer centric approach.
BIBLIOGRAPHY
Attri Sumit, Pandey Priyanshi & Singh Mayank Dispute Resolution Blog Cyril Amarchand Mangaldas (2024, May 16) Advocates no longer liable under Consumer Protection Laws for alleged deficiency in services Advocates no longer liable under Consumer Protection Laws for alleged deficiency in services | Dispute Resolution Blog (cyrilamarchandblogs.com) (Last accessed: 02.06.2024)
Bar of Indian Lawyers Through its President Jasbir Singh Malik v. D. K. Gandhi PS National Institute of Communicable Diseases and Anr (2024) Civil Appeal No. 2646 of 2009 along with Civil Appeal No. 2647 of 2009, 2648 of 2009 and 2649 of 2009.
Carlill v. Carbolic Smoke Ball Co. (1893)1Q.B. 256
D.K. Gandhi PS v. M. Mathias (2007) MANU/CF/0142/2007
Donoghue v. Stevenson (1932) A.C. 562: 147 LT 281:48 TLR 494 (HL)
Indian Medical Association v. V P Shantha (1995) MANU/SC/0836/1995
Section 2(1)(g) of The Consumer Protection Act, 1986
Section 2(11) of The Consumer Protection Act, 2019
Section 2(42) of the Consumer Protection Act, 2019
Sharma Rachit, Chourikar Parth, Taxmann’s Advisory & Research [Corporate Laws] (2024, May 18). [Analysis] Advocates’ Accountability vs. Consumer Rights | M. Mathias v. D. K. Gandhi PS National Institute of Communicable Diseases [Analysis] Advocates\u27 Accountability vs. Consumer Rights | M. Mathias v. D. K. Gandhi PS National Institute of Communicable Diseases (taxmann.com) (Last accessed: 12.06.2024)
United Nations Guidelines for Consumer Protection, United Nations Conference on Trade and Development (UNCTAD), (2016) pdf (unctad.org) (Last accessed:17.05.2024)
Venkatakrishnan Haripriya, Columns Bar and Bench (2024, May 28). Supreme Court on advocates and Consumer Protection Act: A case of judicial indiscipline? Supreme Court on advocates and Consumer Protection Act: A case of judicial indiscipline? (barandbench.com) (Last accessed: 12.06.2024)
Venkatesan V., Supreme Court Observer (SCO) (2024, June 20), Lawyers excluded from the consumer protection law. Are doctors next? Lawyers excluded from the consumer protection law. Are doctors next? - Supreme Court Observer (scobserver.in) (Last accessed: 12.06.2024)
FOOTNOTES
[1] Civil Appeal No. 2646 of 2009 along with Civil Appeal No. 2647 of 2009, 2648 of 2009 and 2649 of 2009.
[2] MANU/CF/0142/2007
[3] MANU/SC/0836/1995
[4] Carlill v. Carbolic Smoke Ball Co. (1893)1Q.B. 256
[5] Donoghue v. Stevenson (1932) A.C. 562: 147 LT 281:48 TLR 494 (HL)
[6] United Nations Guidelines for Consumer Protection, United Nations Conference on Trade and Development (UNCTAD), (2016) ditccplpmisc2016d1_en.pdf (unctad.org) (Last accessed: 17.05.2024)
[7] Civil Appeal No. 2646 of 2009 along with Civil Appeal No. 2647 of 2009, 2648 of 2009 and 2649 of 2009.
[8] MANU/CF/0142/2007
[9] Section 2(42) of the Consumer Protection Act, 2019
[10] Venkatesan V., Supreme Court Observer (SCO) (2024, June 20), Lawyers excluded from the consumer protection law. Are doctors next? Lawyers excluded from the consumer protection law. Are doctors next? - Supreme Court Observer (scobserver.in) (Last accessed: 12.06.2024)
[11] Section 2(11) of The Consumer Protection Act, 2019
[12] Section 2(1)(g) of The Consumer Protection Act, 1986
[13] Venkatakrishnan Haripriya, Columns Bar and Bench (2024, May 28). Supreme Court on advocates and Consumer Protection Act: A case of judicial indiscipline? Supreme Court on advocates and Consumer Protection Act: A case of judicial indiscipline? (barandbench.com) (Last accessed: 20.06.2024)
[14] Attri Sumit, Pandey Priyanshi & Singh Mayank Dispute Resolution Blog Cyril Amarchand Mangaldas (2024, May 16) Advocates no longer liable under Consumer Protection Laws for alleged deficiency in services Advocates no longer liable under Consumer Protection Laws for alleged deficiency in services | Dispute Resolution Blog (cyrilamarchandblogs.com) (Last accessed: 02.06.2024)
[15] Sharma Rachit, Chourikar Parth, Taxmann’s Advisory & Research [Corporate Laws] (2024, May 18). [Analysis] Advocates’ Accountability vs. Consumer Rights | M. Mathias v. D. K. Gandhi PS National Institute of Communicable Diseases [Analysis] Advocates\u27 Accountability vs. Consumer Rights | M. Mathias v. D. K. Gandhi PS National Institute of Communicable Diseases (taxmann.com) (Last accessed: 12.06.2024)
THE RIGHTS TO LAND, FOOD AND TOURISM RELATED TO AGRICULTURAL LAND CONVERSION IN BALI: HOW SUBAK PLAY A ROLE?
Full text linkBali, one of the world’s tourism destinations, is now facing a paradoxical situation because the increasing number of tourists visiting Bali is going hand in hand with the gradual reduction in productive agricultural land due to land conversion. This paper analyzes the massive practice of converting productive farmland for tourism in Bali. It offers a human rights law lens, particularly the rights to land, food, and tourism, to view the problem discussed in the paper. Legal research primarily reads international legal instruments, Indonesia’s laws and regulations, and some secondary materials. The paper suggested that although the Bali provincial government has issued rules and policies to prevent the practice of land conversion, the government cannot fully control it because many agricultural lands have ownership status. Therefore, there is an urgent need to increase awareness of local communities as landowners to prevent such a practice. This paper also proposes using subak, a traditional farming system, as the basis for ecotourism and agrotourism activities to tackle the problem of land conversion in Bali.
Keywords: Land Conversion, Human Rights, Tourism, Food Security, Subak
Introduction
Sustainable Development Goals (SDGs) encourage countries worldwide to adopt measures to achieve the 17 goals.[1] Some goals are interrelated with the issue of sustainable food. Grosso (2020) identifies nutrition in the context of the SDGs, suggesting that for Goal No. 12 on responsible consumption and production, there is a need for sustainable solutions for ensuring controllable and efficient food production while for Goal No. 15 on life on land, change of land use may reduce food production.[2] In addressing these goals, the President of Indonesia created regulations to determine national targets to achieve SDGs.[3] The Minister of National Development Planning/Head of the National Development Planning Agency established the National Action Plan for Food and Nutrition for 2021-2024 in accordance with the targets of the 2020-2024 National Medium Term Development Plan and the SDGs, taking into account the commitments made at The World Health Assembly (2012) and The UN Decade of Action on Nutrition 2016-2025.[4] Indonesia was also the host when the leaders of G20 convened in Bali on 15-16 November 2022 and called for an accelerated transformation towards sustainable and resilient agriculture and food systems and supply chains.[5] The Indonesian national policy on sustainable food is further continued by regional governments, considering the situation in the regions.
Bali is an example of a region where the food policy indicates a promising achievement. Infrastructure development, undeniable, seems to be an important factor supporting the realization of food security in Bali. Infrastructure can improve people’s welfare, which their access to adequate food can indicate.[6] The Indonesian National Food Agency (NFA) released the 2023 Food Security and Vulnerability Atlas (FSVA), which revealed that several districts/cities have experienced improvements in the status of areas vulnerable to food insecurity, indicating positive movement in Indonesia’s food security situation. The FSVA also includes a food security index (FSI), which showed that Bali is the best among other regions in Indonesia: Bali Province is designated as the Province with the best FSI (87.65%). This achievement was supported by the progress made by regencies and cities in the Bali Provinces: Gianyar Regency is the Regency with the best FSI in Indonesia (92.16%), while Denpasar City is the city with the best FSI in Indonesia (95.80%).[7] However, in terms of the status of Sustainability of Food Availability in Bali Province, both Denpasar City and Gianyar Regency are Regency/City areas that have a terrible risk score, where the land used to support food supply is very quickly affected by disasters and the condition of nutrient cycles is easily disturbed by materials. pollutants entering the soil. Therefore, based on the sustainability criteria for food providers, Denpasar City and Gianyar Regency have limited food sustainability status. Therefore, food productivity in these two regions can only improve if destructive and polluting factors are addressed and managed correctly, such as the potential for erosion, flooding, and soil pollution by waste.[8]
Despite Bali being appointed the best FSI in Indonesia, Bali faces obvious obstacles and challenges in realizing food security: the continued land conversion, especially on productive agricultural land, for non-agricultural functions. The conversion of rice fields can occur either gradually or sporadically, carried out by individuals, or instantaneously and massively on one large and concentrated area of land aiming at development projects initiated by the private sector and the government.[9] By the end of the 1980s, irrigated land and dry farmland in Bali were lost to agriculture at an annual rate of about 1,000 hectares. In 2003, the rate of land conversion increased further to about 3,000 hectares.[10] The impact of land conversion is often less recognized, so the land conversion issues are regarded as a ‘small problem’, and efforts to control land conversion are neglected, though it has economic, social, and environmental concerns. A tangible impact is, among others, the decline of food security,[11] a concept that conceives every human being can consume food and nutrition in a balanced manner.[12]
Conversion in agricultural land is a potential threat to the rice field in Bali.[13] The weakening of Bali’s economic aspects due to tourism and the conversion of land to support development also affects dependence on food.[14] Rice productivity tends to decline from 2016 to 2020. In 2016, rice production reached 62.45 tons per hectare; in 2017, it fell to 59.09 tons per hectare. Even though there was an increase in 2018 and 2019, respectively, amounting to 60.11 and 60.78 tons per hectare, rice productivity in Bali Province finally experienced the most significant decline in 2020, namely 58.49 tons per hectare.[15]
Bali is a world tourist destination. Statistics revealed that the population of Bali in 2024 is 4. 433.300 persons.[16] As an illustration, there were 454,801 foreign tourists (not including domestic travellers) coming directly to Bali Province in February 2024.[17] On the one hand, development of tourism service businesses provides positive benefits for Bali’s economic growth. On the other hand, it also has negative impacts, such as high levels of conversion and land ownership and damage to natural ecosystems.[18]
Badung is a regency in Bali that can be used as an example of how the tourism industry has significantly contributed to the agricultural land conversion practice, threatening its ability to ensure sustainable food. For decades, the Badung Regency area was gradually occupied by various types of tourism accommodations (luxury resorts, star hotels, private villas), food and beverages (restaurants, café, beach clubs), and leisure facilities (relaxing spa and entertainment) which require a transformation of a vast area of land, in particular agricultural land. Badung Regency relies dependently on the tourism sector (almost 95%).[19] Development of the region in the form of urban and tourism development, which goes rapidly, is threatening the sustainability of the water control system.[20] The number of farmers in Badung Regency is gradually decreasing. There were 39,303 farmers in 2015, which fell to 36,587 in 2018. It was then further declined to 32,161 in 2020. This decline occurred because the younger generation in Badung Regency was more interested in working in the tourism sectors, e.g. hotels, restaurants, tours, and travel.[21]
The above problems seem interesting to be analyzed from a human rights perspective. Indonesia is a state party to the International Covenant on Economic, Social, and Cultural Rights (ICESCR), meaning that Indonesia has an obligation to implement norms stipulated in the covenant. Article 28H of the 1945 Constitution of the Republic of Indonesia, as well as Article 36 and Article 40 of Law No. 39 of 1999 concerning Human Rights, in essence, determine that every person has the right to have private property, residence, and a decent life. In addition, Article 20 of Law No. 5 of 1960 Concerning Basic Regulations on Agrarian Principles determines that the property right of a piece of land can be transferred and transferred to other parties. It can, therefore, be understood that someone who owns a piece of land with freehold status has the freedom to convert the land, for example, making agricultural land into a place to live or for other purposes that can improve their welfare. That person also has the right to sell it to another party to get money to be used for the benefit of his family.
Reuter (2018) carried out observatory research on the socio-cultural and economic change in Bali for many years, suggesting that the status of agriculture has adjusted in non-linear means. He gained local people’s perception that agriculture, in the early 1990s, was even seen as old-fashioned. He also revealed the vital contribution of moral economies to food security in Bali, along with the negative impact agricultural “modernization” has had on them, and some recent attempts by local social movements to restore them.[22]
Therefore, the present paper aims to analyze the phenomena of agricultural land conversion for tourism purposes in Bali from the perspective of human rights law, particularly the rights to land, food, and tourism. It reflects legal research that primarily analyzes written documents from the international legal instruments and national law and regulation of the Republic of Indonesia. Besides, it reads relevant secondary sources, particularly journal articles and reports. The analysis is divided into four sub-sections. First, it discusses the right to land and the prevention of conversion of agricultural land. Second, it explores land conversion as a threat to the right to adequate food. Third, it assesses the right to participate in tourism development. Next, it analyzes the interrelated human rights issues in the context of land conversion in Bali. Lastly, it proposes subak as the basis for ecotourism and agro-tourism to tackle the problem of land conversion in Bali.
1. Analysis
1.1. Right to Land and the Prevention of Conversion of Agricultural Land
According to Gilbert (2013), land rights are not typically perceived as a human rights issue as they are generally under the scope of land laws, land tenure agreements, or (spatial) planning regulations. Land rights then become a central human rights issue because they constitute the basis for access to food, housing, and development.[23] The Committee on Economic, Social and Cultural Rights in 2022 adopted a General Comment on Land and Economic, Social and Cultural Rights. The Committee observed that the present situation indicates the non-conducive use and management of land to realize the rights stipulated in the ICESCR. Among other critical factors in this trend are “in rural areas, competition for arable land resulting from demographic growth, urbanization, large-scale development projects, and tourism has significantly affected the livelihoods and rights of rural populations”. The Committee also considers Article 11 (2) ICESCR, which, in essence, obliges state parties to develop or reform agricultural systems to achieve the most efficient development and utilization of land. Reflecting that land is used in rural areas for food production, the Committee considers land vital to ensure the enjoyment of the right to adequate food.[24]
The Food and Agriculture Organization (FAO) adopted voluntary guidelines on the right to adequate food in November 2004. The guidelines cover economic development policies, encouraging States to pursue agriculture, land-use, and land-reform policies that will enable farmers and food producers to earn a fair return from their labor, capital, and management. The guidelines also address the land issue, guiding States to establish legal and policy mechanisms that promote conservation and sustainable land use. [25]
The number of land-related conflicts in Indonesia is due to the uncertainty of land laws. This shows that the national land management system still needs improvement. Currently, the two essential elements that become problems in various land cases in Indonesia are related to welfare and the legal certainty of its rights.[26] The National Human Rights Commission of the Republic of Indonesia adopted Standard Norms and Regulations No. 7 concerning Human Rights to Land and Natural Resources. The standard norms underline that the state is obliged to protect and guarantee the availability of productive land and prevent the conversion of agricultural land (in its broadest sense) in harmony with its ecosystem to realize sustainable and just people’s food sovereignty. It also reveals that farmers, as a particular group of rights holders, face the problem of conversion of food agricultural land and around food agricultural land causes food agriculture to experience pollution and be attacked by pests.[27]
1.2. Land Conversion as the Threat to the Right to Adequate Food
Food is a basic need for the continuation of human life, which, if not available, can create conditions that threaten life. Therefore, the right to adequate food is a human right.[28] Article 11 ICESCR comprises two components of the right to food. First, the right to adequate food is a part of the right to an adequate standard of living under Article 11(1) and the fundamental right to be free from hunger under Article 11(2).[29] Article 11 (1) ICESCR ensures the right of everyone to an adequate standard of living for himself and his family, including adequate food for the continuous improvement of living conditions. Article 11 (2)(a) ICESCR further determines that the state shall take measures and programs to improve methods of production, conservation, and distribution of food, among others, by developing or reforming agrarian systems. The right to adequate food is realized when every person, whatever gender or age, alone or in a community with others, always has physical and economic access to adequate food or its procurement ways.[30] This type of right places greater emphasis on individual human beings rather than on the general term of “all people”.[31] As outlined in General Comment No. 12, the exercise of the right to adequate food shall use sustainable means and refrain from contrasting actions with the enjoyment of other human rights, e.g. the right to water.[32]
Law No. 18 of 2012 concerning Food is the legal basis for implementing food sector activities in Indonesia. The preamble of the law stipulates that food is the most important basic human need, and its fulfilment is part of human rights guaranteed in the 1945 Constitution of the Republic of Indonesia as an essential component for creating quality human resources. In addition, it mentions that food sovereignty is the right of the state and nation to independently determine Food policies that guarantee the right to food for the people and give the community the right to determine a food system based on local resource potential. The increasing rate of conversion of agricultural land (in particular, the Islands of Java and Bali) and the increasing national food needs are some of the factors behind the development of concepts and policies for food production in central areas (food estates).[33]
1.3. Right to Participate in Tourism Development
Nurjaya (2022) assesses that despite tourism rights playing a vital role in developing sustainable tourism, it has yet to be academically deliberated. The lack of regulation of tourism rights may be because it is not regarded as a fundamental issue compared to human and ecological rights. However, this right is essential for developing sustainable tourism in the country.[34] From an instrumental aspect, the ‘right to tourism’ is enshrined in the Global Code of Ethics for Tourism and the Framework Convention on Tourism Ethics, reflecting an adoption of the right to rest and leisure as the second-generation rights which stipulated in the ICESCR.[35]
The existence of rights to tourism and a stand-alone right, however, is still a matter of debate in the context of third-generation Human Rights due to the lack of clarity regarding rights holders, duty bearers, and their contents.[36] The European Economic and Social Committee on Social Tourism determines three indicative conditions to understand social tourism. Two of them, in essence, are related to the right to tourism: the real-life circumstances are such that it is totally or partially impossible to exercise the right to tourism, and entities fully decide to take action to enable a person to exercise their tourism rights.[37]
Law No. 10 of 2009 concerning Tourism (Indonesian Tourism Law) recognizes that the freedom to travel and enjoy free time in the form of tourism is part of human rights.[38] Article 19 (1) of the Indonesian Tourism Law recognizes the right of everyone to have the opportunity to fulfil their tourism needs; carry out tourism business; become a tourism worker/laborer; and/or; play a role in the process of tourism development.[39] Article 19 (2) of the Indonesian Tourism law emphasizes that every person and/or community in and around a tourism destination has priority rights to employment, consignment, and/or management. It, therefore, makes clear that a landowner having a land located in a tourism destination has a Right to Participate in Tourism Development.
1.4 The Interrelated Human Rights in the Context of Land Conversion in Bali
The national and regional governments have realized that uncontrolled agricultural land conversion may impact food security. They adopted some regulations to prevent the more catastrophic effect resulting from such a land conversion practice. Presidential Regulation No. 59 of 2019 concerning the Controlling of Farmland Conservation was established to accelerate the establishment of a map of protected rice fields in order to fulfill and maintain the availability of rice fields to support national food needs; control the increasingly rapid conversion of rice fields; empower farmers not to convert rice fields; and provide data and information on rice fields for determining sustainable food agricultural land.[40] Article 6 further determines a map of protected farmland to be carried out through verification of farmland, synchronization of farmland verification results, and implementation of the determination of the farmland map protected.
At the regional level, the Bali Province Regional Spatial Planning Plan for 2023-2043 underlines the need to consider Spatial Planning Plan provisions in the conversion of land to sustainable food agriculture areas and/or technically irrigated rice fields.[41] It also covers the Indication of Directions for Zoning of Agricultural Areas including a prohibition on the conversion of Sustainable Food Agricultural Land and activities that have the potential to disrupt the function of Agricultural Areas.[42] The indication also includes prevention and prohibition on the conversion of agricultural cultivation land into non-agricultural land, except for the construction of infrastructure network systems supporting agricultural areas, such as road networks, electrical energy networks, telecommunications networks, and water networks.[43]
In principle, everyone who owns land in Bali, especially land with an ownership status, has the right to use it, employ other parties to manage it, rent it out, or even transfer the ownership to someone else. The person also deserves to benefit or profit from these things. Problems arise when the land is productive agricultural land, and the owner is tempted to rent or sell the land to other parties for tourism industry interests. This is where the intersection between land ownership rights, the right to food, and the right to be involved in tourism development lies.
From a human rights perspective, the Vienna Declaration and Programme of Action (1993) determines that all human rights are universal, indivisible, interdependent, and interrelated, which must be treated in a fair and equal manner, on the same footing, and with the same emphasis. This basic concept must be used as a basis for analyzing the rights to land, the right to food, and the right to tourism in the context of agricultural conversion practice in Bali.
The UN Special Rapporteurs on the Right to Food repeatedly explain the tight relations between the right to food and land rights. They argued that discrimination in the access to land rights may directly impact the realization of the right to food. They also urge all stakeholders (governments, investors, and local communities) to adopt a more structured approach, placing human rights standards at the center of negotiations as well as introduce a principle outlining that transfer of land use or ownership can only take place with the free, prior and informed consent of the local communities.[44]
The 2023 Report of the Special Rapporteur on the Rights of Indigenous Peoples, José Francisco Calí Tzay, titled ‘Tourism and the rights of Indigenous Peoples’ is an obvious example of how the right to (indigenous) land collided with the tourism activities and industry. Even though the report mentions GCET and FCTE, it does not expressly use the term ‘right to tourism.’ It addresses that the short-term economic benefits of tourism projects tend to lack attention on the long-term adverse impacts on Indigenous Peoples and their lands.[45]
1.5 Encouraging Subak as the Basis for Ecot
COPYING AND STORING OF ELECTRONIC COMMUNICATION IDENTIFYING DATA AS ELECTRONIC EVEDENCE THE STORAGE PROBLEM IN THE GEORGIAN CRIMINAL JUSTICE PROCESS – IN RELATION TO ARTICLE 8 OF THE EUROPEAN CONVENTION
Full text linkThe current standard of criminal procedural law of Georgia, along with the danger of illegally copying information obtained from electronic means of communication, envisages collecting such information in the hands of a professionally interested body, which is naturally a big challenge for criminal procedural law. The reason for this is the important fact that the information obtained by the investigation in this way is used as electronic evidence during the substantive consideration of the case in court.
Accordingly, the case concerns information that the court must rely on in making a decision “beyond a reasonable doubt standard”. Thus, when deciding the fate of the accused, it is especially important that there are no doubts regarding the legality, truthfulness and inviolability of such evidence. The above-mentioned is particularly noteworthy in the circumstances when the above-mentioned approach, according to European human rights jurisprudence, is incompatible with the right to respect for private life protected by Article 8 of the European Convention.
Keywords: evidence, limitation, copying, storage
Introduction
Relevance of the topic
The Criminal Procedure Legislation of Georgia refers to the use of the existing norms for the purpose of obtaining electronic records, their storage and, accordingly, the legality of attaching them to the case for the implementation of secret investigative actions, which, as explained by the Constitutional Court, carries the threat of interfering with human rights and freedoms with increased intensity. In addition, the appeal to the Constitutional Court regarding compliance with the issue of copying and storage of identifying data of electronic communication obtained as a result of secret investigative activities with the Constitution of Georgia has not been stopped. There is a difference of opinion regarding the aforementioned among the judges of the Constitutional Court, some of whom consider the norms regulating the above-mentioned issue to be “overriding norms” of the norms known as unconstitutional by the decision of the Constitutional Court of Georgia dated April 14, 2016, N1/1/625,640.
In addition, the new edition of the Law of Georgia, “On Personal Data Protection,” is particularly relevant in this regard, as it defines the standards in the field of personal data protection and the control of conducting secret investigative activities. It is interesting to see whether recent legislative changes are in line with the current international approach to copying and storing personally identifiable communications data. Thus, in relation to the aforementioned data copying and storage in the criminal justice process, the need for an in-depth study of the issue is particularly apparent for protecting human rights and freedoms.
Research subject
The subject of the study is the challenges related to the storage and copying of identifying communication data obtained through the implementation of undercover investigative activities in the criminal process, which are used as electronic evidence in the substantive consideration of the case in court.
The purpose and objectives of the research. The purpose of the research is to outline and analyze the separate legal problems in the storage and copying of identifying data of electronic communication in the criminal justice process. The set task will be achieved both by presenting the issue in terms of historical precedents and constitutional-legal perspective, as well as by using the norms and practices of European human rights law.
Research novelty
The novelty of scientific research is expressed in the fact that the article defines “electronic evidence” as the final result of obtaining communication identifying data, as well as its nature and differences. Year from “traditional” types of evidence. Also, the content of the legislative changes implemented after the decision of the Constitutional Court of Georgia on April 14, 2016, N1/1/625,640 will be discussed, to what extent it is of “substantial” importance and whether it still creates a threat of interfering with the right to respect for private life.
Research stages
At the beginning of this article, the essence of electronic evidence is presented, and the purpose of obtaining identifiable communication data is defined. The main part is also devoted to sub-chapters, which refer to the existing legal threats related to the storage of information transmitted through electronic communication created under the current legislation. In particular, the issue of gathering and illegal copying of obtained information in the hands of a professionally interested body (creating the so-called “alternative bank”) in relation to the right to respect for private life is discussed. The conclusion presents the author’s point of view and summary to solve the problems discussed in the article.
1. Nature and Relationship of Electronic Evidence and Electronic Communication Identifiable Data
The global technological progress made in the XXI century brought great change in all spheres of public life. As communication has become easier, every person, state or private institution has faced so many challenges in terms of information protection. The mentioned progress also affected the criminal procedural legislation, especially from the point of view of the development of evidence.[1] The rate of use of the computer system in the process of committing a crime has increased significantly. Accordingly, electronic, i.e., the year The issue of using “digital” evidence in criminal proceedings, which has become a new type of evidence.[2]
Electronic evidence[3] is any data stored or transmitted using computer technology that supports a theory about how a crime occurred.[4] According to Article 1 of the Council of Europe Convention on “Computer Crime”, a computer system means “any mechanism or a group of interconnected or interconnected mechanisms, one or more of which, through a program, performs automatic data processing.[5] Computer data itself is “any representation of facts, information or concepts in a form suitable for processing in a computer system, including a program that ensures the functioning of a computer system”.[6]
Despite the fact that electronic proof is so-called While it has similar characteristics to “traditional” proof, there are a number of aspects that make it unique.[7] First of all, it should be noted the “fragility” of digital data,[8] what makes it stand out, for example, from a document created in material form, on paper. This refers to the nature of information obtained from electronic communication, which can be easily deleted,[9] change etc. Another important circumstance is its decentralized storage. It is possible that information stored outside the country’s borders can be used remotely by criminals,[10] Which makes the investigation process even more difficult. Thus, determining the reliability and authenticity of such data mining, electronic nature of evidence is quite a challenge for the criminal procedural laws of all countries.[11]
However, the Explanatory Report (N187) to the Convention on Computer Crime states that additional procedural safeguards are required for the effective collection of communications identifying data[12]. There are several reasons for this. The first is that the mentioned information is presented in an immaterial, electromagnetic form. The second reason is the different standards of its touch. In particular, computer data cannot be confiscated or seized in the same way as a paper document.
In 2016, the Constitutional Court of Georgia deliberated on the procedural guarantees of the storage of communication identifying data obtained by the investigation.[13] At what time should the standards be used by the state when copying and storing information from electronic means of communication were determined.[14]
On the basis of the mentioned decision, certain changes were made in the legislation of Georgia, and the issue of compliance of the contents with the Constitution of Georgia caused a difference of opinion among the judges of the Constitutional Court itself.[15]
One of the reasons for the difference of opinion was the problem of copying and storing information from modern electronic means of communication. In particular, a part of the judges of the Constitutional Court drew attention to gathering the obtained data in the hands of the professionally interested body and the so-called On the dangers of creating “alternative banks”.
2. The so-called danger of creating “alternative banks”
As emphasized in the decision of the Constitutional Court, “it is technically possible to create the so-called “Alternative bank”, the existence of which may not be known to anyone, and the personal data protection inspector may not even have access to it.[16] This implies total access to the information obtained by the investigation, without any content separation: who connected where, when, by what technical means, from which location and for how long.
It should be noted the mechanisms of supervision, which were created for the purpose of preventing the copying of the obtained information. As noted by the Constitutional Court, in the Law of Georgia “On Personal Data Protection”[17] the changes made on March 22, 2017, did not introduce any new regulation in terms of controlling the data copying process by the inspector.[18] A positive innovation was that one of the levers of existing control - the electronic system of control of the central bank of identifying data of electronic communication has already been fixed from a technical point of view, and with its help the inspector could control the actions carried out in the copied data bank.[19] As for the process of copying data from electronic communication companies by the agency, the only lever of supervision was the inspection. This type of supervision was deemed ineffective by the Constitutional Court in its decision of April 14, 2016, due to the method of its implementation, which was based on the “principle of random selection”. The mentioned approach excludes absolutely all data control, therefore, the possibility of detecting absolutely all violations, and such “selective control is practically impossible to produce tangible results”.[20]
Regarding the regulatory norms of the above-mentioned issue, it should be emphasized that the current version of the Law of Georgia “On Personal Data Protection” does not provide provisions that are significantly different from the previous version of the law regarding the field of data protection and the control of conducting secret investigative activities. In particular, Chapter VII of the current edition of the Law of Georgia “On Personal Data Protection” textually and, accordingly, in terms of content V2 of the previous edition of the Law of Georgia “On Personal Data Protection” (“Powers of the Personal Data Protection Service in the field of data protection and control of the conduct of covert investigative actions”). It is identical to itself.
Thus, the existing lever of inspection is still the bearer of the “random selection principle”, which allows the possibility that during the operation of the mentioned control mechanism, the personal data protection service will completely detect and, therefore, eliminate violations of the law in relation to the issues within its competence.
In addition, since the so-called In the presence of threat of creating “alternative banks”, it is possible to copy absolutely all the obtained information without any selection, it is interesting to see what changes the legislation has undergone in this regard after the implementation of the new law “On Personal Data Protection”.
As mentioned in the explanatory note of the aforementioned law, the data “should be processed only to the extent necessary to achieve the relevant legal purpose”. In addition, we read here that information can be stored “only for the period necessary to achieve the purpose of data processing”. The explanatory note also emphasizes the importance of the safe storage of information and that appropriate measures should be taken to prevent “unauthorized or illegal” processing of data.[21] The above-mentioned goals, elaborated in the explanatory card, were formulated in the form of principles of data processing in Article 4 of the mentioned law.
However, on the part of the legislator, in terms of information storage and protection, despite the above-mentioned clear, obvious readiness to protect human rights, the mentioned approach has little effect on the storage period of information obtained from electronic communication through covert investigative actions. After the decision of the Constitutional Court, the period of storage of identifiable data of electronic communication was reduced from two years to 12 months.[22] Despite the mentioned change, there is no periodic verification of the above term. Accordingly, there is no provision in the legislation to determine whether the obtained information is still relevant to the case and whether there is a need to keep it. Thus, everything, including information not important to the case, can be stored for the period established by law, without any selection or justification. Thus, the current legislation “provides absolutely unlimited copying and storage of such information for a period of one year depending on the circle of persons and location.[23]
Based on all of the above, e. year The danger of creating “alternative banks” is problematic in the sense that it is possible to store such information that is not important for the investigation, but in the absence of the law, it is not destroyed by the authorized persons.
3. Collection of data in the hands of professionally interested body
According to the Law of Georgia “About the Legal Entity of Public Law - Operative-Technical Agency of Georgia”, the Operative-Technical Agency is a legal entity under public law responsible for the processing, storage, issuance and destruction of identifiable data of electronic communication.[24] Before the decision of the Constitutional Court of Georgia on April 14, 2016, the agency was represented as a department within the State Security Service. According to the position expressed by the witness at the mentioned session of the Constitutional Court, the transformation of the operational-technical department into a legal entity under public law was named as the only lever to prevent the creation of “alternative banks”. In this case, the collection of obtained data in the hands of the professionally interested body, the State Security Service, of which the agency was an integral part, was excluded.
After the formation of the mentioned approach of the Constitutional Court, regardless of the transformation of the operational-technical agency into a legal entity under public law, it should be noted that it is still subject to the “effective control” of the State Security Service.[25]
According to Article 3 of the Law of Georgia, “On Legal Entity of Public Law - Operative-Technical Agency of Georgia”, the agency, as a legal entity of public law, is created in the system of the State Security Service and functions in this system as a part of a unified and centralized service. In particular:
- The head of the agency “will develop proposals for the agency’s material and technical support and financing (including the agency’s budget) and submit the relevant projects to the head of the service”[26].
- “Before submitting the statistical and generalized report of the agency’s activities to the Prime Minister of Georgia, the head of the agency will submit this report to the head of the service”.[27]
- The head of the State Security Service decides on the issues of establishing a special allowance and determining bonuses for the head of a legal entity under public law.[28]
- “The state control of the agency’s activities is carried out by the head of the service”.[29]
It should be emphasized that by the decision of the Constitutional Court of April 14, 2016, the Operational-Technical Department was considered a professionally interested body, not because this department directly had any kind of investigative function but due to the fact that it represented the State Security Service. The unit and the functions of the service made it an investigative function.[30] The Constitutional Court emphasized that “when the technical capabilities of direct and immediate access to personal information are at the disposal of the State Security Service (or another body with an investigative function), which, as we have already mentioned, immeasurably increases the risks of arbitrary, excessive interference with the right, it becomes objectively very difficult if not impossible, effective control of the authorities authorized to investigate”[31].
In the conditions of the current legal regulation, it is clear that the issue of the transformation of the mentioned department into a legal entity under public law is of a formal nature since the activity of the operational-technical agency depends on the decision taken by the head of the State Security Service, both in terms of financial and functional management.
The so-called possibility of creating “alternative banks” and collecting data in the hands of an interested body on a professional basis, according to the Constitutional Court, “both cumulatively and separately create a danger of excessive, groundless interference in a person’s personal space, therefore, a violation of fundamental rights”.[32]
Especially in circumstances where covert investigative actions are concerned, the risk of taking arbitrary action is obvious. In addition, since, in this case, we are talking about obtaining electronic evidence, the issue of authenticity of which is closely related to technological progress, the need for clear and detailed rules in this regard is even more evident.[33]
Since, both at the national and international level, great importance is attached to the inviolability of a person’s intimate life, to personal connections with a certain circle of people with the intensity necessary for his personal perfection.[34], It is necessary to have such a set of legal norms at the national level that will not create doubts about the disproportionate interference with the above-mentioned rights by unauthorized persons.
Thus, since the threats that have been discussed above can have a great impact on the freedom of human behavior, it is necessary to determine whether the current legal regulation in this regard leads to the limitation of such an important right as respect for private life.
4. The issue of compliance with the right to respect for private life protected by Article 8 of the European Convention
It is interesting to see what approach the European Court of Human Rights takes in terms of the right to respect for private life and whether the criminal procedural legislation of Georgia in relation to the safe storage of identifiable data of electronic communication is consistent with the above-mentioned right protected by Article 8 of the European Convention.
The Strasbourg Court explains that the concept of private life is broad and cannot be subject to an exhaustive definition.[35] The concept of respect for private life includes the right to the free development of the individual, as well as the establishment of relationships with others.[36]
In the case of A v. France,[37] the French government argued that the recorded conversations related to the commission of the murder did not concern private life. The commission found the following: the fact that the conversation was a matter of public interest did not deprive it of its private character. The court shared the mentioned argument and explained that the collection of information about an individual without his consent by state officials always refers to a person’s personal life and, therefore, falls within the scope of Article 8, Paragraph 1. In order to determine the compatibility of the issue of copying and storage of information obtained from electronic communication in criminal proceedings with the right to respect for private life protected by Article 8 of the European Convention, the following must be determined:
a) Was the restriction implemented in accordance with the law?
The approach of the European Court, according to which the existence of a norm at the legislative level does not mean that the restriction will be in accordance with the same law, is particularly interesting in terms of determining “compliance with the law”. In the case of Bykov v. Russia [38] the European Court noted that for national legislation to comply with the “quality of law” requirement, the scope of discretion of the authorities must be taken into account. In addition, attention was drawn to the importance of the participation of an independent and impartial body and the fact that the involvement of an impartial body in the implementation of undercover investigative activities is important to the extent that, in this way, the individual will have an adequate means of protection against arbitrary interference.[39]
In addition, since “undercover surveillance or communication monitoring by government bodies does not produce public control regarding interference with the right,[40] “the law should exhaustively define the procedures for the investigation, use and storage of information obtained as a result of covert surveillance, as well as the procedures for transferring information obtained as a result of covert surveillance to third parties”[41]. The mentioned approach excludes “abuse or arbitrary use of authority by government bodies”[42].
Accordingly, interference with the right to respect for private l
MEDIATION – THE OFTEN-MISSED OPPORTUNITY!
Full text linkParties have the opportunity to regulate the dispute, and during mediation, an acceptable solution for the dispute resolution can be seen, which will strengthen the personal or business relationship between the parties in the future. One of the key functions of a mediator to successfully mediate business disputes is to focus on the interests of the parties and be able to separate them from the positions of the parties. International mediation is seen as the amicable process of the resolution of cross-border commercial disputes, which helps parties to preserve commercial relationships. The mediator should individually analyze every case before a mediation meeting is planned. The mediator should decide whether to start with a general joint meeting or conduct individual meetings. The above-mentioned has a great impact on future processes and results. The implementation of general mediation standards in national law is a big challenge. Standards on applying enforcement and refusal mechanisms in International business disputes are general, vague, and more evaluative. States should work on the development of national guidelines and case law regarding the evaluation process of mediation by court. Digital assets from Blockchain Technology can be inherited, and because of the specificities (different territories, internet space, and different tech companies) of currency, disputes may arise in transacting inheritance. It is debatable why the Singapore Convention should not apply to settlement agreements raised from cryptocurrency.
Keywords: Business Dispute Settlements, International Mediation, Singapore Convention
Introduction
First, I want to mention the prehistory of mediation in Georgia and, afterwards, the existing Normative Regulation of the mediation process in Georgia regarding the Singapore Convention, which is essential for international business disputes. Also, the article will mention the essential ingredients for a successful mediation process.
When we mention introducing and establishing a culture of mediation in Georgia, the role of Ilia Chavchavadze in 19 century is essential in creating a modern concept of a mediator - a conciliator. First of all, Ilia Chavchavadze connects the need for conciliation judges in modern language with the development of life, globalization and capitalization (the relationship between people, which is related to giving and receiving), the alternative of unloading the justice system, economic existence, and, finally, it is related to resolving the disputed issue quickly and easily.[1]
Of course, the modernist and eclectic world adds to mediation new functionalities, renews, and prepares for new challenges.[2] The parties become the main participants in the process, trying to find out what their main interests are, so mediation is based on the interests of the parties and not on their rights.[3] Covid 19 Pandemic showed the world of business how it is essential to have efficient and flexible tools for resolving disputes by non-traditional and out of court way, but with enforceable document and executable result.
In collective disputes, the right of the Minister of Labor, Health and Social Affairs to receive a report from a mediator comes in collision with the requirement of the normative act to the mediator to keep confidential all information entrusted to him during the mediation process. In my opinion, in the future, it would be better to add another paragraph to Article 63 of the Labor Code of Georgia, which will clearly define what kind of information/report the mediator is obliged to provide to the Minister of Labor, Health, and Social Affairs.[4] It should also be considered to what extent the information obtained during the mediation process should be reflected in the report, so as not to violate the principle of confidentiality.[5] The rules which regulate collective disputes is noteworthy for private sector.
For parties, one of the attractions of mediating business disputes is the principle of confidentiality. However, mediation does not enjoy absolute confidentiality protection, and there are legitimate grounds for breach of confidentiality. According to the general rule, information can be disclosed only in the amount and proportion necessary to achieve a legitimate aim pursued, and at the same time, in the process of disclosure, it is better to observe the principle of proportionality. The obligation to disclose information to an adequate and proportionate extent should also be respected, and the legislation requires maximum protection of the disclosed information from third parties.
1. Business Disputes
Maintaining business relationships is one of the major benefits of the mediation process. It does not matter what kind of the result the mediation will be completed, as the dispute will remain psycho-emotionally relaxed and in addition the disputing parties will already be informed of the real causes of the dispute. On the contrary to this advantage, we can even consider the phenomenon of the insincere[6] party.[7] Negotiations in the mediation format are completely based on the principle of voluntariness, which means that initiation and participation in mediation depends on the opinion of the parties, while the content and purpose of the negotiations are determined by the parties and the mediation process is completed by their decision.[8]
It should be noted that from 2013 to December 10, 2021, 422 cases were transferred to the Mediation Center of the Tbilisi City Court. According to the statistics of 2021, there are 28 legal disputes related to business disputes; Labor Law - 27 disputes; Also, 33 current loan and microfinance disputes are recorded in the mediation center.[9] The settlement rate is 60-70%, and disputes arising from microfinance, labor, commercial, and family relations have particularly successful results.[10]
According to commercialization, it has been suggested that in the focus of the broader concept of privacy, personal data may be considered part of property rights, which increases the probability that this data will be more effectively protected.[11] From this point of view, we can conclude that the personal information obtained during the mediation process enjoys maximum protection, and also it can be seen in the context of property rights, moreover, in conditions of the individual characteristics[12] of business relations.
Recommendations for successful completion of business mediation are: A) Creativity of the mediation process.[13] For example, the invitation of experts in the presence of the parties. This can support building trust; B) to have fun in the mediation process. The mediation process is mostly tense, and emotional background prevails, especially tiring when this process takes hours. Therefore, a little humor and laughter will help the mediation process; C) Patience, listening carefully to the problems of the disputing parties. The glacial pace of offer and demand can be frustrating and can lead to a worsening of the situation, so it is best when the parties continue a productive discussion; D) realistic evaluation of the case and flexibility - For example, parties should sit on each other chairs (not in direct meaning). They should try to see picture form the different corner. Mediators can use the mirror effect. During the whole process parties should think about the best outcome, acceptable outcome and absolutely non acceptable outcome. At last, progress can be made when the parties understand that an intersection point exists; E) mediation is not a trial. Subject to the variances due to case complexity, very little is gained, and much might be lost than would be possible through court. The goal of mediation is to reach a compromise, not establish victory.[14] F) Design a process that works for your client. In multi-party business disputes, it may be essential that the process be segmented. It is necessary to listen to all parties separately if the emotional background prevails; G) The mediator should individually analyze every case before a mediation meeting is planned. This includes case information, emotional background, predicted sensitive issues, the roots of the problem, and the main aspects of the dispute. Afterwards, the mediator should decide whether to start with a general joint meeting or conduct individual meetings. The above-mentioned has a great impact on future processes and results. (This recommendation might be very useful for the mediation process in labor disputes). H) Identification of goals - The mediator should be able to assist the party representative or the party itself in planning a wide range of settlement options and finding ways to resolve them, as well as in determining the predicted outcomes of the mediation process.[15]
2. International Agreements and Georgia
2.1. The Singapore Convention on Mediation
The United Nations Commission on International Trade Law (UNCITRAL) was established for the facilitation of international trade, as well as to modernize and unify it.[16] UNCITRAL plays an important role in developing that framework in pursuance of its mandate to further the progressive harmonization and modernization of the law of international trade by preparing and promoting the use and adoption of legislative and non-legislative instruments in a number of key areas of commercial law.[17] In 2018, the UN General Assembly adopted a resolution emphasizing the importance of mediation.[18] The UN Assembly Resolution on the Model Law mentions the benefits of mediation, which are related to the unloading of justice system, the elimination of tensions, and the chance to continue commercial relations as opposed to litigation. Under Paragraph 3 of Article 1 of Model law on international commercial conciliation, the conciliator assists the disputing parties in settling the dispute amicably, although the conciliator does not have the authority to impose upon the parties a solution to the dispute.[19] Articles 8 and 9 of the Model Law are noteworthy.[20] Article 8 regulates the disclosure of information provided specifically by a party, according to which when the conciliator receives information concerning the dispute from a party, the conciliator may disclose the substance of that information to any other party to the conciliation. However, when a party gives any information to the conciliator, subject to a specific condition that it be kept confidential, that information shall not be disclosed to any other party to the conciliation.[21] Article 9 regulates the issue of privacy in general.[22]
The Singapore Convention on Mediation (also known as the United Nations Convention on International Settlement Agreements Resulting from Mediation) is a new multilateral treaty developed by the U.N. Commission on International Trade Law (UNCITRAL) which was open for signatures from August 7, 2019.[23] “The primary goal of the Convention is to promote the use of mediation for the resolution of cross-border commercial disputes, as mediation is seen as not only a faster, less expensive form of dispute resolution but also as more likely to preserve commercial relationships. The lack of a cross-border mechanism for giving legal effect to mediated settlement agreements is said to be a significant barrier to the willingness of some companies to use mediation; a significant amount of time and energy might be needed to reach an agreement, and if the other party later fails to perform, the company seeking compliance would essentially have to start over in litigation or arbitration”.[24]
United Nations Convention on International Settlement Agreements Resulting from Mediation lacks international legitimacy that was granted to arbitration by the New York Convention.[25]
Also establishment of mediation in the field of cryptocurrency and blockchain technology subparagraphs (a) and (b) of paragraph 2 of the Singapore Convention can be seen as an artificial and negative obstacle. According to Convention:
“This Convention does not apply to settlement agreements:
(a) Concluded to resolve a dispute arising from transactions
engaged in by one of the parties (a consumer) for personal, family
or household purposes;
(b) Relating to family, inheritance or employment law”.
Digital assets from Blockchain Technology can be inherited, and because of the specificities of currency, disputes may arise in transacting inheritance. It is debatable why mediation cannot be introduced in this part if Blockchain Technology and cryptocurrency can be seen as nontraditional tools of business relations in the 21st century.
2.2 Recognition and Enforcement of International Mediation Settlement Agreements in Georgia
Now, about ratification of the Singapore Convention in Georgia. The Singapore Convention was approved by the United Nations General Assembly Resolution N73/198 on December 20, 2018. Georgia has signed the Convention and recognized it as binding, as it will contribute to the expansion and development of mediation as an alternative dispute resolution mechanism in Georgia. In addition, Georgia will become a party to settlement agreements and Participant in the Unified International Instrument on Use and Enforcement. Georgia was one of the first countries to join the Convention. On 7 August (2019) 46 countries signed the Convention together. For the democratic development and economic growth of the country, the state must take care of the issues of the rule of law and a fair court, and along with this, the importance of alternative dispute-resolution mechanisms is highlighted.
After the signing of the Singapore Convention by the Minister of Justice of Georgia in 2019, a period of harmonizing Georgia’s legislation for ratification started. In Georgia, the Convention came into force from the 2020 year. I will mention some of the changes made to the Law of Georgia on mediation and the Civil Procedure Code of Georgia.
In both laws, we have a new term: International mediation.
Present time by Article 38 of the Civil Procedure Code State fees shall be applied to an application for a measure to secure the mediation settlement agreement, an application for enforcing the mediation settlement agreement, or an application for recognising and enforcing the international mediation settlement agreement. Article 39 declares state fees amount to GEL 150 for an application for executing the mediation settlement agreement or for recognising and executing the international mediation agreement.
In 2021, changes to the Civil Procedure Code of Georgia and Section 79 were added, which defined the participation of the Court in the Recognition and Enforcement of International Mediation Settlement Agreements Concluded in accordance with the United Nations Convention of 7 August 2019 on International Settlement Agreements Resulting from Mediation. In this section, international mediation is defined as a process, however, named or referred to, which takes place outside Georgia and whereby two or more parties to a dispute attempt to reach an agreement on the settlement of their dispute with the assistance of a foreign mediator. The Court that is empowered to recognize and enforce international mediation settlement agreements shall be the Supreme Court of Georgia. One or both parties to an international mediation settlement agreement may apply to the Court with an application for the recognition and enforcement of an international mediation settlement agreement. A party to an international mediation settlement agreement submitting a request to recognize and enforce the international mediation settlement agreement as provided for by paragraph 1 of this article shall submit the court relevant documents. The types of document are written in Article 36343.[26]
The Court shall check the completeness of documents submitted in accordance with Article 36343(3) of this Code within five days after the receipt of an application for the recognition and enforcement of an international mediation settlement agreement. The Court shall establish/point to the deficiency, the correction of which is necessary for the completeness of the said documents, and shall give an applicant reasonable time to correct it. The Court shall leave the application unheard if the deficiency is not corrected within the set time limits.
The Court shall decide on the recognition and enforcement of an international mediation settlement agreement in the form of a ruling. A writ of execution shall be handed over to a party to an international mediation settlement agreement along with the ruling. A ruling recognizing and enforcing an international mediation settlement agreement shall be final and may not be appealed. International mediation settlement agreements shall be enforced in accordance with the Law of Georgia on Enforcement Proceedings.
According to the Law of Georgia on Enforcement Proceedings, Article 91 – Enforcement of foreign court judgements: a decision recognized in the territory of Georgia, as provided by the legislation of Georgia, in accordance with international private law and the mutual legal assistance treaties between states, and the writ of execution copied out by a Georgian court of appropriate jurisdiction shall be forwarded for enforcement to the National Bureau of Enforcement through the Ministry of Justice of Georgia.
Finally, I will briefly review the amendments made to the Law on Mediation.
Article 131 regulates Recognition and enforcement of international mediation settlements, which states:
With the agreement of the parties to the international mediation settlement, it can be recognized and enforced by the court. The court with the authority to recognize and enforce international mediation settlements is the Supreme Court of Georgia.
The Supreme Court of Georgia considers the issue of recognition and enforcement of international mediation settlement in accordance with the rules established by this law and the Civil Procedure Code of Georgia.
Article 132 regulate International mediation settlement, which is not subject to recognition and enforcement. I will mention some of situation by which an international mediation settlement is not subject to recognition and enforcement. These are:
Mediation settlement which is concluded for the settlement of a dispute arising from a transaction concluded by one of the parties to an international mediation settlement (the consumer) for personal, family or household purposes;
Mediation settlement which has been published by a court or entered into in a pending court proceeding and is enforceable as a judgment in the State of the court issuing the judgment;
Mediation settlement which was signed and subject to enforcement as an arbitration award.
Also it is essential that The rules of recognition and enforcement of the mediation settlement are applied only within the limits agreed upon by the parties to the international mediation settlement.
Reservation - Also Noteworthy that The rules for the recognition and enforcement of international mediation settlements established by the Law on Mediation and the Civil Procedure Code of Georgia are not applicable to those international mediation settlements, one of the parties of which is the state or any state agency or any person acting on behalf of this state agency.
The old version of the law of Georgia “On Mediation”, as well as the Code of Civil Procedure of Georgia, provided for mechanisms for the enforcement of mediation settlements reached as a result of mediation, however, it did not include the enforcement of international agreements reached as a result of mediation, to which the Convention appeals. Thus, after the implementation of the legislative changes, the concept of “international mediation settlement” and the rules for its recognition and enforcement appear in the legislation, as well as a list of circumstances in which the international mediation settlement is not subject to recognition and enforcement.
But What is difference between Article 36345 of Civil Procedure Code of Georgia and Article 5 of the Singapore Convention regarding refusal of granting?
The wording of Article 36345 of Civil Procedure Code of Georgia is different from Paragraph 2 of Article 5 of the Singapore Convention regarding refusal of granting relief.
Article 5 (2) Singapore Convention States that the courts may also sua sponte refuse to grant the requested relief if they find that:
(a) Doing so “would be contrary to the public policy” of that State; or
(b) “The subject matter of the dispute is not capable of settlement by mediation under the law of that Party.
Convention mentions lex fori as a ground for ineffectiveness.
Contrary to this, in Georgia Article 36345 of Civil Procedure Code of Georgia refers to situations mentioned in subparagraphs when court has power to refuse enforcement of international mediation settlement agreements and also Code notes a general rule/standard on the refusal of the satisfaction of the motion for recognition and enforcement of the international mediation settlement. It do not explain what it means through wording: “According to the legislation of Georgia, the dispute cannot be resolved through mediation”.
Finally, I will mention that The European Court of Justice has granted the legal right to legal protection the status of a general principle of European Community law, and this principle is enshrined in Article 47 of The Charter of Fundamental Rights of the European Union.[27]
The development of mediation within the EU operates on the background of the following legal principles: access to justice for all is a fundamental right enshrined in Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms; The legal right to legal protection is enshrined in Article 4
სექსუალური ძალადობის საზღვრების გადახედვა სისხლის სამართლის რეფორმისთვის
No full textRape survivors are mostly women, and the perpetrators are mostly men. So, it has a social and cultural dimension. In the article, the problems regarding rape law are shown from the angle of the female rape survivors. The paper discusses how rape is interpreted in Georgian criminal law practice and why one paradigm of rape prevails to this day - a male stranger and a fighting woman who physically resists the perpetrator. Criminal law sets the standard of the “ideal victim’’ for a woman, the “rational” rules of action during rape; in particular, it determines what the “typical behavior” is for a woman before, during, and after sexual violence. If the female rape survivor’s response does not fit into this standard, she remains outside the legal system; her voice is suppressed and disbelieved by the justice.
The paper critically examines the Georgian legislative and judicial definition of rape; However, the research is not limited to this; it also includes an analysis of the approaches and scientific views of other jurisdictions. The paper supports a liberal understanding of sexual autonomy and consent. The goal of the paper is to show the essence of non-consensual sexual violence and its superiority compared to the old rape law.
Keywords: Rape law, consent, yes means yes
Introduction
The paper aims to show the incompleteness of the composition of rape limited to physical violence that it fails to protect sexual autonomy adequately. The Georgian rape law, which enumerates methods of rape by names such as violence, threat of violence, and helplessness, their judicial interpretation is even narrower.[1] Such a non-comprehensive definition of sexual violence runs counter to the goals of liberal criminal law. And the state violates the positive obligation to protect citizens from violence.[2] This paper discusses the definitions of rape, both the Georgian rape law and the definitions of non-consensual sexual violence, by observing different countries and scholarly approaches. Georgia, as a signatory state to the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (the Istanbul Convention), must modify non-consensual rape.
Today, the main discussion among scholars in Western society and academia is about how to formulate the non-consent rape law, in particular, whether consent as its main element should be considered “attitudinal” or always in the form of “communication”. A universal approach to consent has proven to be one of the most difficult issues to tackle, and this has led to many different views and perspectives surrounding it.[3] In this paper, communication theory is supported. The aim of the paper is also to outline the negative and positive aspects of sexual autonomy to draw a line between the actions that must be punished to protect the negative right to sexual autonomy and also to outline the behaviors that should not be punished to protect the positive right to sexual autonomy. The paper also discusses the mens rea of rape, analyzing which is the best model for criminal law purposes, such are the approaches of England and Wales[4],[5]which involves evaluating the perception of consent from the perspective of a reasonable person, taking into account what efforts were made to ensure the consent of the other party regarding sex. Thus, under this model, a person will not be punished for a mistake in consent if the mistake is reasonable, which precludes avoiding liability simply for an ``honest mistake”. This standard leaves no space for shielding responsibility by referring to the cultural factor. However, what is considered “reasonable” can be subject to manipulation. Maximum certainty of law, consistent judicial interpretations, and scholarly interpretations are important to ensure this.[6]
The goal of the paper is to show the superiority of consent-based rape law over coerced-based rape law. In addition, the task of the paper is not to propose any specific model of consent but rather to outline the superiority of more general theoretical foundations and approaches that will strengthen the position for rape law reform.
As far as I understand the scope of criminal law with a liberal philosophy, I look at the regulation of sexual violence from the same perspective. My views are influenced by liberal thinkers such as J.S. Mill, H. L. A. Hart, J. Feinberg, S. Green and many other liberals. Regarding the boundaries of sexual autonomy, consent, and sexual violence, the influence of liberal feminists and scholars is also great,[7] in particular, such as M. Nussbaum, C. Paglia, K. Harding, V. Despentes, and many others. Although I did not follow the views of radical feminists in terms of the application of substantive criminal law, in particular, the extent to which sexual violence should be defined, how to define exploitation, or the voluntariness of sexual consent, I was greatly influenced by their texts. There are issues on which feminists, whether radical or liberal, agree, and these are the issues of disclosure of sexual violence and access to justice. I share their views on the discriminatory impact of gender stereotypes and rape myths on access to justice.
1. The Need to Rethink the Definition of Rape
1.1. Undarstanding of Rape Law
There are different views on what should be considered sexual violence and what should be a legal interest protected from rape.
One approach is patriarchal-moralistic, which is reflected with more or less intensity by a large number of jurisdictions, including liberal criminal law, especially its judicial interpretations.[8] In this approach, the boundaries of sexual violence are very narrow. Physical violence (with few exceptions), as well as the victim’s utmost resistance to the perpetrator, are the necessary actus reus of the crime. Even if the law does not explicitly emphasize the requirement to resist the aggressor, it is interpreted as such in practice. It was with the same approach that the husband was protected by immunity from raping his wife.[9] Such a reservation was never found in the Georgian legislation, but practically there were no statistics of cases of marital rape. Those women who could not fit into the existing social constructs regarding women, the standard of the “ideal woman” established by the patriarchy, were also not protected. The legal good protected by the patriarchal-moralistic approach is not the sexual autonomy of a person but some abstract entity - family honor, father’s property, and female chastity. This was the legal interest protected by medieval European criminal law.[10] These “interests” have been banished from modern liberal criminal law. In the patriarchal-moralistic approach, many actions that are inherently sexual and which are done without the will of the other party, and thus it is sexual violence, are not prohibited. It should also be noted that the moralistic approach justifies the criminalization of some sexual behaviors that are excluded from the catalog of crimes under liberal criminal law. Such is prostitution, although it is not punishable by the article prohibiting rape, but by another norm. The legal interest protected from prostitution is the institution of the family and morals. The sex worker is usually punished for this.[11]
The prohibition of rape defined by the Georgian criminal law and its court interpretations is precisely moralistic-patriarchal.[12] Despite recent legislative changes, it has not fundamentally changed.
Chapter 22 of the Criminal Code of Georgia (hereinafter CCG), which includes five crimes against sexual freedom and inviolability, was partially reformed under the influence of the Istanbul Convention. With the amendments of May 2017, the definition of rape became gender neutral; the legislator removed moralistic terms and differentiation into “traditional” and “non-traditional” forms of sex. According to the new definition, for a sexual act to be classified as rape, it must necessarily be penetrative in another person’s body, and penetration with any part of the body and in any form will not change the qualification of rape. However, the definition still reflects both moralism and gender specificity. In particular, as far as the emphasis in the definition is on penetration into another’s body, and such a case of rape is ignored, when the body of the victim is used to penetrate the body of the perpetrator, practically according to the formalistic definition, such cases are not assessed as rape.[13]
The main problem that the Georgian rape law has is limiting it to narrow cases of violence, threats of violence, and helplessness. The need for the reform to be modified in the absence of consent to include more actions that encroach on sexual autonomy has been delayed for many years for unjustified reasons, even though more and more books and articles are being written in the Georgian academic field in support of the changes, as well as the great efforts of non-governmental organizations and feminists to make the state reform.[14]
It is also true that the methods of rape - violence, threats of violence, and helplessness can be interpreted more broadly than their current understanding,[15] especially since the European Court of Human Rights (hereinafter Strasbourg Court) standard exists in this regard,[16] however, we see that the Georgian criminal law practice still views and evaluates sexual violence from a moralistic and patriarchal perspective, and this is the main obstacle to progress. The standard for defining violence as sufficient to suppress a woman’s will is very strict, while much less pressure is sufficient to overcome a woman’s resistance. The starting point of moralistic-patriarchal criminal law is not the protection of individual sexual autonomy but the determination of the self-sacrificing struggle of a woman to protect her “honor”. Female rape survivors examine with a magnifying glass how they behaved before, during, and after the rape.[17] The ideal rape victim is a dead woman or a woman who has been mutilated in a fight with the rapist to defend her “honor”. This unfairly strict standard also applies to child victims, which will be discussed later with the analysis of a specific case.
The extent to which patriarchal ideology defines the boundaries of sexual violence is interesting for a systematic analysis of the law. In particular, the definition of Article 1433 of the Criminal Code, the first part of which stipulates three to five years of imprisonment as a punishment for using the services of a trafficking victim, is important for understanding the limits of the legislator’s understanding of rape. This article includes both adult and minor victims. The victim of trafficking has been deprived of free choice, which is why she is a victim of trafficking. When a person understands that the other sex participant gives consent to sex due to coercion (i.e. her consent is not genuine) and despite this, sex is initiated with her, this is rape.[18] A systematic interpretation of these and other norms reveals that the legislation supports the narrow scope of rape. Only rape committed with physical violence is considered serious enough to be considered rape, and the punishment is imprisonment for six to eight years in the case of an adult, while the same action against a minor is imprisonment for a term of fifteen to twenty years or life imprisonment. The practical interpretation of Article 139 of the Criminal Code also proves this. Establishing sexual relations with a person without her consent under the influence of the threat of disclosure of personal information is punishable by imprisonment for up to five years. Both the doctrinal and the modern Georgian court’s interpretation of this norm is such that the norm includes not only threats but also the realization of threats, that is if a frightened victim obeys the threat of the abuser and has sex with him.[19]
It is interesting to discuss the case, and how Georgian criminal law will deal with it. This case of rape actually happened[20] but did not reach the justice system due to gender prejudices and rape myths against the female victim.
Anna was 19 years old when she woke up to find her roommate, a 30-year-old man, “groping” her in her bed. She had no past or present romantic relationship with this man. That night, while Anna was sleeping, the man lay down next to her and then sexually penetrated Anna’s body without any communication with her. Anna, talking to the researcher, when she remembered the case, mentioned that after waking up, although everything happened very quickly, she remembered what thought came to her mind for a moment when she found a man lying next to her, it was fear, because if she tried to escape, he would still catch her and, worse might happen.
Is it rape? Yes, it is. Sexual penetration of the woman’s body took place without her consent. Anna frightened and captivated by the thoughts that the worst would happen to her, simply “preferred” immobility. It is unreasonable for a 30-year-old man to expect that the woman’s silence meant that she agreed to his initiative. The woman did not consent to sex. It would not be a surprise to the perpetrator that he could frighten the woman by initiating sexual behaviour on the body while she was sleeping, especially if they were alone at home.
According to Georgian criminal law, this case would not be considered rape. Because the perpetrator did not use the physical violence established by the Georgian standard, he did not make any threats, nor is it a classic case of helplessness.[21] If her body had been sexually penetrated while she was asleep, it would have been rape, but Anna woke up before the penetration, so according to the Georgian criminal code, she had to fight physically to protect her “honesty”.
Rape defined as non-consensual includes all of the above, which is fair. Where sexual penetration of another person’s body takes place without the other person’s free consent - it is rape, regardless of the physical marks on the body.
A Feminist Approach
One of the broadest understandings of sexual violence is the feminist approach. “Broad” refers to the low threshold for violence to be considered a crime. Sexual violence is any unwanted sex, sex that takes place under any form of pressure. These include prostitution (pressure caused by social inequality), sex with the threat of separation (emotional pressure),[22] in a word, sex that takes place without the enthusiasm of the other party. A feminist understanding of sexual exploitation takes into account the general context of gender and social inequality, statistics on employment and unequal pay, as well as social constructs, and more.[23] That is why they consider sex work as a form of exploitation because, according to their assessment, it is “inherent” for prostitution to objectify a woman and dehumanize her.[24] According to this approach, the legal interest protected from sexual violence is the dignity and equality of women as a group.[25] With the same approach, pornography should be banned as a tool for the “normalization” of violence against women, as well as BDSM, which is a “romanticization” of the patriarchal order.[26] However, taking into account the general context mentioned above, they do not trust women’s consent regarding the listed sexuality, they do not consider women as autonomous decision-makers. This radical feminism approach is paternalistic, presenting a woman as childlike who needs special protection from the state.[27] Such paternalism is unacceptable to the liberal understanding of personal autonomy I discuss below.
There are two common understandings of autonomy: the liberal understanding of autonomy – individual autonomy and relational autonomy. This latter approach is popular in the radical feminist texts mentioned above. Among the supporters of relational autonomy is the British scholar J. Herring too.[28] According to him, the liberal understanding of autonomy does not consider that a person is a social being and makes decisions under the influence of society. That is why he suggests that to understand autonomy, we should pay attention to the context, both special and general.[29] Jenifer Nedelsky is also a supporter of relational autonomy.[30] According to this approach, a person’s decision should not be judged in isolation from the demands of society. [31] The origin of this type of autonomy is to protect the individual from the harm of violent relationships. [32] It should be noted here that protecting an individual from a violent relationship not only does not contradict the liberal approach, but it is a strict follower of this principle. J. Herring, without naming the liberal authors, writes that they don’t seem to take into account the violent experience that precedes sex, which affects free will, which I think is an undeserved criticism of liberal scholars I know.[33] Liberals have a problem with the very broad definition of a “violent environment” for criminal law purposes, while proponents of relational autonomy explain it by accepting the general unequal social context, which is sufficient for them to exclude the voluntariness of the given consent.[34] This is not enough from a liberal point of view, it tries to maintain a balance based on the goals of criminal law and also shows caution based on the goals of protecting positive sexual autonomy.[35] J. Herring, based on this approach, advocates a “strong” form of consent, which implies freedom from all coercion for the validity of consent.[36] The liberal understanding of consent and sexual autonomy is disliked by relational autonomy advocates precisely because it does not define the voluntariness of consent so strictly.[37] That’s why many cases of what is acceptable sex for liberals are sexual assaults for relational autonomy advocates. An example of this is prostitution.[38] It’s also an unfair accusation against liberals that they seem to ignore gender stereotypes and rape myths.[39] Cultural factors and social learning affect a person in general; it is not related to liberalism.[40]
A Liberal Approach
As for the liberal understanding of personal autonomy, it views the individual as a rational agent and entrusts her with the right to dispose of their own life.[41] S. Green distinguishes normative and descriptive understanding of autonomy. The first is related to the right to act according to one’s desire and will.[42] The restriction of which is justified only when its realization poses a threat to another person’s right.[43] Sexual autonomy also means the right to use your sexuality as a tool for your own needs.[44] The descriptive aspect of autonomy is related to the ability of a person to manage her own life, which will be dictated by her motives, and not by exploitation.[45]
Sexual autonomy has a variety of expressions, just as there are people and their individual choices and attitudes regarding sexuality. Sexual autonomy includes a person’s right to have sex with whoever they want and in whatever way they want, or not to have sex at all. Have sex by yourself, own and use a sex toy for sexual purposes, use legal pornographic material, buy or sell sex work, get involved in BDSM, have sex in a group, and more.[46] From the liberal point of view, the main thing is that all these activities take place with the participants\u27 consent, and the expressed consent is informed and free. Liberal criminal law establishes paternalistic care only for certain groups who are incapable of making free decisions, e.g., due to their age or health condition..
1.2. The Impact of Different Approaches on the Application of Criminal Justice
Criminal law is applied to different extents, depending on whether it is understood liberally or under some other philosophy. Legal scholars list the types of relationships that are characterized by subordination and power imbalance. Sexual intercourse in this type of relationship and context attracts the attention of the law. These types of relationships include relationships between a prisoner and prison warden, a prisoner and a police officer, a student and a lecturer, a priest and a parishioner, a patient and a doctor, and many others.[47]
In an absolute approach, the sexual proposal and act of the person in the vertical of power in this type of relationship is violent and should be criminalized without any contextual analysis.
The contextual approach favours a differentiated approach in this relationship (concerning some parts). Liberal scholar of criminal law, S. Green, separates the relationship between the arrested and the policeman, where he allows an absolute approach. Focusing on the power of the policeman, his special training, weaponry, and ability to cause life-threatening harm to the arrested, and on the other side is the person deprived of his/her liberty, which is completely defenseless and completely under the control of the state, such an imbalance of power is considered enough to prohibit sex in such a relationship with an absolute approach. Here, Green believes that even if we imagine consensual sex in this type of relationship, an absolute ban is acceptable for him, assuming that the risk of abuse of power is very high. A flexible law would complicate investigations, increasing false negatives in the cases of accused police officers.[48] Thus, the liberal point of view is not unfamiliar to absolute approaches, depending on the context. Green advocates absolute punishment, among other things, because of the institutional issue that it is in everyone’s interest for an official who is a witness, investigator, or prosecutor to be impartial.[49]
From the liberal perspective, a conte
Euthanasia: A Comprehensive Analysis on Indian Perspective
Full text linkIn this civilization, the sedative care and value of existence matter in enduring life-threatening illnesses like high-grade cancer-like disease and HIV/AIDS have turned out to bea significant apprehension for Doctors. Corresponding this apprehension has happened one more contentious concern, i.e., Euthanasia or “mercy–killing” of lethally ill persons. Promoters of Physician-Assisted Suicide (PAS) experience it as a personal liberty to self-rulespontaneously,leadingthem to choosea peaceful death without any pain. The rival one feels that a doctor’s responsibility for the demise of someonebreaks the vitalprinciple of the therapeuticcareer. Moreover, untreated melancholia and the prospect of collective‘intimidation’ in publicdemanding ‘euthanasia’[1] put anauxiliaryinterrogationremark overmoral attitude,which is elementary to such an act. These apprehensions have guidedus to uncompromising leading standards for executing PAS. Appraisal of the psychological condition of the human being submissive to PAS happens tobe obligatory, and also, the responsibility of the psychiatric consultation developsinto essential. Although measured asunlawful in our country, PAS has numerous lawyers in the form of willful standards and declarations like “death with dignity”[2]establishment. It has achieved desire in the Honorable Apex Court decision in the ArunaShaunbag case. It stays to be noticed is till when it is obtained by this predisposedmatterclatters the Indian government.
Keywords: Euthanasia, Medical Profession, Ethics, Law.
Introduction
Duringthe 17th century, Britishtheorist Sir Francis Bacon invented the term “euthanasia”. Euthanasia originated from the Greek words “eu”, which means “good” and “Thanatos”, which means “death”. Originally, it meant a “good” or “easy” death. Willful extermination is characterized as the organization of a noxious specialist by someone else to a patient to save the patient from terrible and untreatable misery. In typical fashion, the doctor is motivated by compassion and the expectation of curing the condition. Doctors perform euthanasia, which has been categorized as either “active” or “passive”. Active euthanasia involves a general practitioner performing actions to end a patient’s life. Aloof willful extermination worries about keeping or reducing activity key to maintaining life. Active euthanasia falls into one of three categories. Intentional killing is one type of dynamic willful extermination that is executed in the interest of the enduring person. Unintentional euthanasia, which is also popular as “mercy killing”, is the process of endangering a patient’s life to alleviate his suffering when the patient neverprayed for it. In non-willful killing, the training is completed despite the reality that the patient isn’t in that frame of mind to give assent.
1. Euthanasia and Moral Integrity
It is occasionally questioned that specialists have some specific moral obligations, a flat-out impulse by no means to take life, and it is only for this motive that they are never willing to contribute to willful extermination. According to this point of view, doctors are lawfullyforbidden from performing euthanasia, even when an endure has proficiently appealed it, for the reason that they infringe their most elementary professional commitment to by no means unnervingly and deliberately reason a patient’s death.[3] However, as I will demonstrate, if sufficientcontemplation is provided to howphysicians’responsibilities are carried out and the ethical credence of neutralizingresponsibilities that are uniformly elemental to medicine, it is not apparent how the doctor’s responsibilityby no means to execute could ever actually be unqualified—where that term is obtained to denoteunconditional or inviolable. Although it is a justifiableresponsibility, doctors do have a responsibility to refrain from deliberate murder.
The knoll of clinical science is the sole area that is recognized for the close three-sided interrelation between medication, regulation, and morals. Euthanasia is a mostly important area of medicine that sits at the intersection of law and ethics. Willful extermination question is obtained in different social orders of the world over an extensive period. The divergent legal positions pledged by the States replicate the field’s never-ending dilemma. In veracity, the supported conditions of the States crossways the world have stretched out in the district of the moral planning of individuals dwelling in particular regions. Therefore, addressing the ethics of euthanasia is very important even in the modern era, when we are seeing a gradual rise in the number of populace who would like to use it because modern medical technology makes it easy to die without pain.[4]
With an outsized whole number of partners and excess of cultural hints, instances of willful extermination present amazing tackle to the general public overall and specialists specifically. The expansions in overabundance have brought forward inquiries regarding the recipe of direction, patients’ independence, specialists’ obligation to treat, anxieties of relatives, the job of the general public and State, and capable utilization of clinical assets to forestall wastage.[5]
More than the past few decades’integers of theorists’ apprehension with medical ethics have found it progressively thornier to substantiate the comprehensivesegregation of taking life. Harris, in his prominent work on medical ethics, “The Value of Life” talks of killing as being a caring thing to do. Tooley, whose work on abortion and infanticide has caused extensivehullabaloo, takes issues further and argues freedom to life is notinexorably a concomitant of being a human being, and it does not inevitablypull out to newly born infants. Such a position is tremendous and conspicuously a marginal one, but it is momentousneverthelessthat a prominentvoice in moral philosophy is questioning the ethics thatstringently outlaw any taking of human life.[6]
This has gone hand in hand with the increasingly significantfundamental role being given to the standard of independencenecessitates that we tolerate people as far as feasible to make their judgments, then why should the populace be denied the right to settle on something as vitallyclandestine as the mode and time of their dying.[7]
Healthcare professionals are morally obligated to appreciate life’s purity and provide relief from suffering. Usefulness, independence, and equity are acknowledged moral principles directing the exercises of medical care specialists inside society. The application of these moral standards and the use of specific types of medical treatment have become at odds as a result of technological and medical advancements.
Hippocratic Oath and the International Code of Medical Ethics create moral challenges for doctors. According to the oath and the ethics, the doctor is to relieve the pain of his patient on one side and protect and prolong his life on the next side. First is the favor of Euthanasia, and second counters the doctrine.
Approaches that will result in reforms and delivery of health care are influenced by two distinct moral theories: the formalist or deontological view and the effective or significant view. According to John Stuart Mill’s utilitarian perspective, ethical declarations are those that exaggerate the greatest optimistic equilibrium of worth over the least enthusiastic equilibrium of value for all individuals. Immanuel Kant articulated the normativeoutlook of ethics, which grasps that several actions are erroneous and others are right,not considering the outcome.
2.Euthanasiaand InternationalPractice
Analysis was done on the euthanasia experiences of other countries, where different strategies for legalizing the right to die were used. Deadly tourism is a phenomenon that has grown as a result of legislative decisions in some jurisdictions being inconsistent. A certain level of legislative harmonization or the establishment of suitable limits in the laws of those jurisdictions that have allowed euthanasia is required to prevent such a scenario. Since an interstate consensus cannot be reached, the Council of Europe handles the euthanasia issue individually at the state level.
Most states that are parties to the Convention for the Protection of Human Rights and Fundamental Freedoms have laws that criminalize aiding and abetting suicide or euthanasia. Because of this, the European Court of Human Rights (ECtHR) hears the majority of cases pertaining to the so-called “right to die”. Therefore, when it comes to deciding whether a person has the right to die when and how they want, the European Court of Human Rights is the ultimate arbitrator. As a result, the Court is extremely hesitant to acknowledge the right to die. The ECtHR, however, remains impartial and acknowledges that member states have the right to make their own decisions on this complicated matter.
The formulation of Ukrainian and European legislation, national and international legal acts, and ECtHR rulings using the comparative and law technique was necessary to achieve the study’s purpose. The writers processed international and legal acts in the sphere of human rights related to the exercise of the right to euthanasia and the realization of related rights using logical methods of analysis and synthesis. The comparative and legal technique is the most popular research approach for this topic. It enabled the writers to examine the right to euthanasia in detail, pinpoint similarities and differences, as well as the advantages and disadvantages of each, and spot patterns in how this phenomenon is being applied.
The experiences of other nations with euthanasia, where various approaches to granting the right to die were employed, were analyzed. The problem known as “deadly tourism” has increased as a result of conflicting state legislation. To avoid such a situation, some degree of legislative harmonization or the implementation of appropriate limits in the legislation of those jurisdictions that have allowed euthanasia is necessary. The Council of Europe addresses the euthanasia issue individually at the state level because an interstate consensus cannot be obtained.[8]
The Court does not consider the right to life to be a right to suicide or euthanasia, nor does it consider it to be a right to death. The study of the main cases that most clearly and informatively convey the ECtHR’s stance on the right to die shows that the right to assisted suicide and the right to passive euthanasia may only be recognized as part of the Convention’s right to respect for private life, and only if they do not contradict with the respondent state’s national legislation. Before euthanasia is allowed in Ukraine, lawyers and specialists from the domains of medicine, bioethics, philosophy, sociology, and other disciplines ought to engage in a serious public discussion. To stop misuse and reduce the number of applications,[9]
The Venice Declaration on Incurable Diseases (1983) was endorsed by the 35th World Medical Assembly due to the seriousness of the subject at hand. This document states that a doctor may choose not to treat a patient who has an incurable illness with the patient’s agreement (and, if the patient is incapable of expressing their wishes, with the approval of their immediate family). The aforementioned does not, however, absolve the physician of the duty to help a patient who is near death to lessen their suffering during the last stages of the illness.
Although the Declaration on Euthanasia (1987) was accepted by the 39th World Medical Assembly in Madrid, the topic of euthanasia is not specifically governed by international law. According to the Declaration, euthanasia is unethical since it involves purposefully taking a patient’s life, even if the patient or their family members wish it. It does not negate the need for the doctor to respect the patient’s wish to not impede their natural death process during the latter stages of their illness. Regardless of whether it is permitted by domestic or international legislation, euthanasia is practiced in many jurisdictions today. Euthanasia is legal in a number of states. Euthanasia is legal and practiced extensively in certain states. Regardless of whether it is permitted by domestic or international legislation, euthanasia is practiced in many jurisdictions today. Euthanasia is legal and practiced extensively in certain states.[10]
The Netherlands was among the first states in this regard. Both assisted suicide and direct euthanasia have been permitted in the nation since 2002. Euthanasia accounts for an average of 6.6% of all fatalities in the Netherlands. Cancer (66%), comorbid problems (12%), neurological diseases (6%), cardiovascular diseases (3.8%), respiratory diseases (3%), old age (3.3%), and the early stages of dementia (2.4%), mental disorders (1%), and other ailments are the most prevalent reasons of euthanasia. In 85% of cases, a general practitioner or family doctor performs euthanasia and is also the first person the patient turns to for assistance. Eighty percent of the time, the treatment is performed at home; just three percent are performed in hospitals, various types of nursing homes, or hospices. Physicians are permitted to conduct euthanasia under tight guidelines, which call for a high level of moral preparedness and accountability. Physicians are permitted to conduct euthanasia under tight guidelines, which call for a high level of moral preparedness and accountability.[11]
Finland and Sweden do not have laws against passive euthanasia. The legalization of active euthanasia is being discussed in France, where passive euthanasia is likewise not illegal. At the same time, health officials are being forced to enhance palliative care by the French Parliament. In the UK, euthanasia is now illegal under English law as it is considered intentional murder or manslaughter. The Dutch Parliament made the practice of euthanasia lawful in 2001. Belgium approved euthanasia in 2002. Switzerland formally authorized euthanasia in 2006. Euthanasia programs for foreigners are becoming incredibly popular in this state. The expression “travel to Switzerland” has lately come to mean euthanasia in Britain. Euthanasia has been permitted in Luxembourg since 2009.
Article 27 of the Ukrainian Constitution, Article 281 of the Ukrainian Civil Code, and Article 52 of the Law of Ukraine,“Fundamentals of Health Legislation of Ukraine” all expressly forbid euthanasia in any form. Euthanasia translates as “good, easy death” from the Greek words “eu”, which means nice, and tanatos, which means death. The following are characteristics of euthanasia:
The patient needs to endure excruciating pain brought on by an incurable illness;
Not everyone can end life or speed up death, but certain professionals, including medical professionals, may;
A medical professional engages in this activity intentionally, either by acting or by not acting, and deliberately considers the repercussions of their actions;
The patient should repeatedly and consistently state that they wish to die, or if they are unable to do so, their close family members should make the request;
Euthanasia is performed just to alleviate the patient’s suffering;
The effects of such an intervention should be completely, impartially, and promptly communicated to the patient or their representative;
The patient’s death is the result of euthanasia.
Judgments Delivered by the European Court of Human Rights
When states fail to recognize the right to euthanasia, the European Court of Human Rights (ECtHR) steps in to seek justice. The ECtHR has heard very few cases pertaining to this matter. These include instances like “Haas v. Switzerland”,“Koch v. Germany”,“Gross v. Switzerland”,“SanlesSanles v. Spain”, and “Pretty v. the United Kingdom”. An applicant stated in the case of “SanlesSanles v. Spain”[12] that the state should not interfere with an individual’s choice of how to end their life. A person wished to pass away with dignity after suffering from agony and worry due to a vehicle accident that left them disabled. Nevertheless, the Spanish national courts declined, and a criminal inquiry was launched following the death.
The applicant in “Pretty v. The United Kingdom”[13] had a condition of the motile neurons thatwas incurable. The woman wanted to end her life because she knew that in the later stages of her condition, she would be paralyzed and unable to move her muscles, which would diminish her human dignity. She sought her spouse’s assistance because she was physically unable to end her own life. The pair had previously requested that the police not punish her spouse for aiding suicide because it is illegal in the UK. But their plea was turned down. The woman applied to the ECtHR for infringement of the following rights after passing through the UK courts:
Article 2 of the Convention guarantees the right to life, whereas Article 3 forbids torture, Article 8 protects private and family life, Article 9 allows for freedom of speech, and Article 14 forbids discrimination. After reviewing the case, the ECtHR concluded that none of the articles cited by the applicant in “Pretty v. the United Kingdom” were violated by the conduct of the authorities.[14]The European Court of Human Rights (ECtHR) made it abundantly evident in this instance that the right to life guaranteed by Article 2 of the Convention does not imply or defend the right to die.
To put it another way, the issue of the right to euthanasia has been brought before the ECtHR. Contrary to the conventional interpretation of the right to life, the right to life takes on a negative connotation in the context of this right. Determining whether the right to life encompasses the freedom to choose when and how to pass away is the negative component of the right to life. The cases “Haas v. Switzerland” and “Koch v. Germany”, which address the right to die as a component of the right to respect for private life in the context of Article 8 of the Convention, provide examples of the ECtHR’s stance on euthanasia.[15]
The petitioner in the “Haas v. Switzerland” case had bipolar affective illness for 20 years, which was challenging to manage and kept them from leading a dignified life. The applicant made two suicide attempts and spent a number of times in a mental health facility throughout this period. The medicine could not be lawfully purchased. The petitioner claimed that their right to choose when they die had been violated, citing Article 8 of the Convention. In the “Koch v. Germany” case, a person with a life-threatening illness was denied permission to acquire a deadly dosage of a medication.[16]Article 8 of the Convention’s criteria was broken in this case. The petitioner in the “Haas v. Switzerland” case had bipolar affective illness for 20 years, which was challenging to manage and kept them from leading a dignified life. The applicant made two suicide attempts and spent a number of times in a mental health facility throughout this period. The medicine could not be lawfully purchased. The petitioner claimed that their right to choose when they die had been violated, citing Article 8 of the Convention. In the “Koch v. Germany” case, a person with a life-threatening illness was denied permission to acquire a deadly dosage of a medication. Articles 8 of the Convention’s criteria were broken in this case.
Therefore, two types of circumstances fall under the ECtHR’s practice on the right to die. One category is the right to “assisted suicide”, which occurs when a person requests a third party to help them end their life when they are physically unable to do so themselves or when a doctor prescribes a deadly amount of medication for voluntary death. The euthanasia of patients whose lives are artificially preserved falls under the second group of instances. In some situations, stopping therapy has the consequence of ending the patient’s life (for instance, by stopping the use of specific medications or disconnecting the patient from artificial life support systems).The Council of Europe’s Parliamentary Assembly adopted Recommendation No. 14/8, “On protection of the human rights and dignity of the chronically ill and the dying”, on June 25, 1999.[17] The conflicts between euthanasia and the right to life guaranteed by Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms were highlighted in the text.
According to Gergeliynyk, assisted suicide and euthanasia are not “rights”, therefore, the Convention on Human Rights should not enable the practice of euthanasia. According to scientists, euthanasia is a flagrant breach of Article 2 of the Convention, which established the concept that “no one can be deprived of life intentionally” and requires the state to respect and safeguard the lives of all persons without distinction. The Council of Europe’s Parliamentary Assembly stated in 2005 that it opposed the legalization of euthanasia in some jurisdictions. The Council of Europe’s Parliamentary Assembly stated that the development of a medication that might lessen patients’ pain and palliative
3. A Religious Outlook
In the Hindu holy book, the Bhagavad Gita, it is stated that death is merely a step in the continuum of birth, life, death, and rebirth. Yudhisthir in the Mahabharata said, “It is most astonishing that man sentient of his mortality prolongs to experience that he can deceive death and does all he can accomplish this goal”, which is a quote from the epic.
In contrast, Dr. Iftekhar Ali Raja began his discussion of Islam and medical ethics with a quote from Einstein. He cited the Last Address of the Prophet Mohammed, which said that no killing is allowed unl
CHILD RECRUITMENT PHENOMENON BETWEEN PROHIBITION AND PRACTICE ACCORDING TO INTERNATIONAL LAW AND JURISPRUDENCE
Full text linkThis study aims to illuminate the alarming phenomenon of child recruitment, recognized as a profound deviation from normative societal behaviors due to its stark infringement on the rights of a vulnerable demographic. Internationally spotlighted in the 1980s, child recruitment in armed conflicts prompted global efforts aimed at curbing the induction of children into battles by both recognized and unrecognized militant factions. Despite these endeavors, the prevalence of child soldiers has escalated notably in subsequent decades, particularly amid the surge of internal armed conflicts. Such circumstances have relentlessly exposed recruited children to extreme violence and inflicted severe damage, often resulting in either mortality or permanent disability.
In response, a unified international initiative has sought to mitigate this distressing trend by establishing numerous international accords and preemptive measures. The prohibition of child recruitment has been enshrined across a spectrum of international legal instruments and endorsed by international criminal tribunals. Yet, despite rigorous legal frameworks and judicial efforts to eradicate child recruitment and preclude their participation in armed engagements, the practice persists. This ongoing issue underscores a systemic failure among nations to enforce internationally agreed standards designed to combat this grave phenomenon.
Keywords: Children, Recruitment, International Law, International Criminal Court
Introduction
Wars inflict severe and destructive impacts on societies engulfed by them, subjecting individuals to various horrific forms of violence, including rape, sexual exploitation, and genocide. Children, who form a significant segment of the human community, are particularly vulnerable to these dangers due to their age and circumstances, rendering them more prone to exploitation as they lack the means to defend themselves.
Intriguingly, these victims have increasingly become actors and perpetrators in these conflicts, with the issue of child soldiers taking a drastic turn as their involvement in ongoing armed conflicts escalates, transforming child recruitment and use into a prevalent norm rather than an exception that ought to be suppressed and eradicated.
Child recruitment, however, is not a modern-day phenomenon; history records its practice by the Romans in wars, the Soviet Union, and the Nazi party, which established an organization to train children for combat, including their participation in the Vietnam War against the American army, among other instances.
The forced recruitment of children gained international attention in the 1980s, sparking initiatives to diminish their numbers and involvement in conflicts waged by both state and non-state armed factions. Yet, despite these endeavors, the incidence of child soldiers continues to climb more than a decade later, highlighting the persistent challenges in eradicating and curbing this issue.
Consequently, the dire situation of children affected by this phenomenon has propelled the international community to bolster its efforts by enhancing legal frameworks within various sectors of public international law to prevent the escalation of this grave issue, which has notably intensified in several regions, including the Middle East.
Therefore, the critical question arises:
To what extent are the mechanisms established under international law and jurisprudence effective in prohibiting the phenomenon of child recruitment and safeguarding their rights?
To address this question, our analysis will proceed along two axes: the first will elucidate the international protection afforded to recruited children under public international law, and the second will explore the role of the international criminal judiciary in preventing the recruitment of children and protecting their rights from an alternative viewpoint.
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1. International Legal Protection for Recruited Children
The widespread participation of children in hostile activities, whether directly or indirectly involved in conflicts, has compelled the international community to take action. To protect these vulnerable individuals and uphold their rights, various international charters have been enacted within the ambit of humanitarian law and international human rights law aimed at curtailing this distressing trend.
1.1 Concept and Causes of the Child Recruitment Phenomenon
Globally, the recruitment of children into warfare has emerged as a pervasive and conspicuous issue. Children are exploited by both governmental and non-governmental entities, coerced into participating in armed conflicts, trained in combat, used to transport equipment and weaponry, or to collect intelligence on adversaries, often in return for basic necessities like clothing, shelter, and food.[1]
1.1.1 Definition of a Child Soldier
As defined in the Cape Town Principles, a child soldier is “Any person under 18 years of age who is part of any kind of regular or irregular armed forces or armed group in any capacity, including but not limited to cooks, porters, messengers, and anyone accompanying such groups other than family members. This definition also encompasses girls recruited for sexual exploitation and forced marriage”.[2]
This definition highlights several key aspects:
A. It includes every child, whether forcibly or voluntarily recruited, into any form of regular or irregular armed forces or armed groups.
B. Involvement in armed conflicts, whether direct or indirect (as implied by roles like cooks and porters), falls under child recruitment.
C. The definition encompasses both genders, acknowledging that females are exploited during conflicts.
The European Commission recognizes child soldiers as individuals under eighteen who have been involved, either directly or indirectly, in armed conflicts.According to the Paris Principles, a recruited child is defined as “Any person under the age of eighteen who was recruited or used in the past or is currently used by an armed force or group, regardless of the tasks they perform, whether male or female, including but not limited to those serving as fighters, cooks, porters, couriers, spies, or for sexual purposes”.[3]
The recruitment methods for children, encompassing both boys and girls, are varied and include:[4]
Kidnapping from homes or public spaces by armed forces and groups,
Voluntary enlistment driven by survival or familial protection needs, especially for those separated from their families and displaced,
The pursuit of revenge,
The significant technological advances in weapon manufacturing, increasing small and lightweight weapons, fueling the spread of this phenomenon.
1.1.2 Causes of the Child Recruitment Phenomenon
Children are often coerced into recruitment through kidnapping, threats, and coercion. Nonetheless, many join armed groups voluntarily, without external pressure, complicating efforts to combat this issue.
Irrespective of the nature of their recruitment, child soldiers are assigned a wide range of tasks, including combat, deploying mines and explosives, recon and spying, as well as serving as guards, couriers, and providing support in logistics, culinary services, domestic labor, and even sexual services.
Statistics from 2001 estimated that around 300,000 children were recruited in 30 conflicts globally, with girls constituting 40%, approximately 120,000, of this number. The integral role of girls in the survival of armed groups is underscored by their productive and reproductive contributions, including intelligence gathering, mine planting, goods and cattle theft, as well as engaging in agriculture, food preparation, and providing services to men and boys.[5]
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The primary factors driving the child recruitment phenomenon can be segmented into three main categories:[6]
A. Social reasons
These include tribal affiliations and loyalty, social disparities, and the tragic loss of parents due to death or displacement from rural areas, compounded by illiteracy. The recruitment tactics of terrorist groups, such as ISIS, aimed at replenishing their ranks with children to offset combat losses, remain obscure yet can be partially discerned through media-reported accounts from victims or their kin.
Typically, these children stem from impoverished backgrounds or challenging social environments characterized by low living standards. Such adversities render them susceptible to exploitation by armed factions, who enlist them into roles grossly unsuitable for their age and physical abilities, often leading to their active engagement in combat.[7]
B.Economic reasons
Dire conditions like hunger and poverty compel the offering of children for military endeavors. In some instances, children voluntarily enlist to seek better living conditions.
C.Political reasons
Political dynamics significantly influence child recruitment. The escalation of armed conflicts, rampant weaponization, internal discord, and a blatant disregard for international humanitarian norms among combatant groups have intensified this trend.
Consequently, the recruitment of children transcends mere socio-economic triggers. The burgeoning demand from armed factions, coupled with structural, psychological, and social push factors, has exacerbated the utilization of children in conflict zones.
The surge in child recruits correlates with the broader prevalence of this issue, prompting armed groups to view children as substitutes for adult combatants due to adult manpower shortages. This strategy not only aims to sustain the group’s viability and bolster its operational capacity but also serves as a tactical maneuver to secure battlefield advantages.[8]
1.2 Protection of Child Soldiers in International Charters
The 1949 Geneva Convention lacks specific provisions for the protection of child recruits in armed conflicts. Hence, during the 1971-1972 expert meeting, the International Committee of the Red Cross proposed an article for inclusion in the 1977 Additional Protocol I, mandating that: “Parties to the conflict must undertake all feasible measures to prevent the involvement of children under the age of 15 in hostilities and strictly prohibit their recruitment or voluntary enlistment into their armed forces”.[9]
This proposition evolved into Article 77/2 of the First Additional Protocol to the Geneva Convention, which dictates: “Parties to the conflict must exert all possible efforts to ensure that children below fifteen years of age do not directly participate in hostilities and must refrain from recruiting them into their armed forces. The parties should prioritize the older individuals for recruits aged fifteen to eighteen”.[10]
This provision specifically forbids the recruitment of children under fifteen by states engaged in international armed conflicts, advocating for preference to be given to older recruits within the fifteen to eighteen age bracket.
For internal conflicts, the Second Additional Protocol stipulates: “Children under fifteen years of age should not be recruited into armed forces or groups, nor allowed to engage in hostilities”, underscoring the international legal consensus against the military utilization of young children.
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Article 77 of the First Additional Protocol prohibits the direct participation of children in armed conflicts, i.e., bearing arms, but the fourth article of the Second Additional Protocol provides broader protection by totally prohibiting children’s participation in any war operations, directly or indirectly, such as transporting ammunition and supplies, and performing espionage and intelligence tasks, etc.
The 1977 Geneva Protocol set the minimum age for children’s participation in hostilities at 15 years, which was a step forward and a gain for international humanitarian law at that time. However, the spread of this scourge has increased and expanded in different places around the world, a fact confirmed by the International Committee of the Red Cross, as it is the original custodial authority in monitoring the application of international humanitarian law.
In developing the Convention on the Rights of the Child, considerable emphasis was placed on defining an age limit below which children should be prohibited from engaging in hostilities, raising the threshold from fifteen to eighteen years.
Nevertheless, Article 38 of the 1989 Convention on the Rights of the Child essentially echoed the provisions of the First Additional Protocol of 1977.[11] This inclusion led to an apparent inconsistency, as Article 1 of the Convention distinctly identifies a child as “every human being below the age of eighteen years unless, under the law applicable to the child, majority is attained earlier”.[12]
This definition paradoxically allows for the recruitment of individuals between the ages of fifteen and eighteen, who are still classified as children under the Convention’s initial article. Moreover, while Article 38’s second paragraph explicitly bars children from serving in the armed forces (i.e., regular forces), it neglects to extend this protection to children involved with irregular forces, thereby leaving a significant loophole.[13]
Addressing the prevalent issue of child recruitment, the International Labour Organization promulgated several conventions, with Convention No. 182 regarding the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour in 1999 being particularly notable.
This convention categorically defines a child as anyone under the age of eighteen[14] and outlaws the sale and trafficking of children by prohibiting forced labor, inclusive of child recruitment. This enactment holds distinctive legal weight, elevating the child recruitment age threshold from 15 to 18 years amending the gaps identified in the two Additional Protocols of 1977 and the Convention on the Rights of the Child.
In reaction to the escalating child recruitment crisis and concerted global endeavors to eradicate it, an international symposium was convened in Berlin, attracting 22 representatives from both governmental and non-governmental bodies to deliberate on the enlistment of children below the age of 18 in both regular and irregular military factions. The assembly’s chief objective was to advocate for the elevation of the minimum recruitment age from 15 to 18 years.[15]
Furthermore, the Optional Protocol of 2000, ratified by the United Nations General Assembly in May 2000, marked a pivotal enhancement in the protection of child rights, introducing critical stipulations regarding the minimum age for compulsory and voluntary military recruitment. The Protocol mandates that: “States Parties shall adopt all practicable measures to ensure that members of their armed forces who have not reached the age of eighteen years do not directly engage in hostilities”.[16]
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Regarding compulsory recruitment, States Parties are obligated to ensure that individuals under the age of eighteen are not forcibly conscripted into their armed forces.[17]
In terms of voluntary or optional recruitment, the Optional Protocol of 2000 institutes a partial prohibition, establishing that the minimum age for voluntary recruitment is sixteen years. Article 3/1 of the Protocol dictates that “States Parties shall raise in years the minimum age of voluntary enlistment into their national armed forces from that set out in paragraph 3 of Article 38 of the Convention on the Rights of the Child...”
This elevation is conditioned upon the safeguards articulated in Article 3 of the 2000 Optional Protocol. For voluntary recruitment, states are required to submit a declaration binding them upon ratification of the Optional Protocol, ensuring adherence to the following criteria:[18]
The recruitment process is genuinely voluntary, stemming from the individual’s own free will.
The child’s recruitment receives explicit consent from their legal guardians or parents.
Comprehensive information about the responsibilities entailed in military service is provided to both the child and their guardians.
A legal age requirement mandates that children must furnish reliable proof of age, ensuring they are at least fifteen years old prior to recruitment.[19]
It is important to highlight that these stipulations do not extend to military schools managed or overseen by the state, which accept children not younger than fifteen years as the minimum age.
Concerning the prohibition of child recruitment by armed groups, the Optional Protocol includes a specific clause asserting that non-state armed groups shall not, under any circumstances, recruit or use individuals under the age of eighteen in hostilities.
Article 4/1 of the Protocol states:[20] “Armed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use persons under the age of 18 in hostilities”. This clause unambiguously prohibits these groups from involving children, whether directly or indirectly, in armed conflicts.
Despite the significance of the 2000 Optional Protocol, scrutinizing its initial article reveals that the state’s obligation hinges on the actions undertaken by the state rather than the outcomes and its capability to manage them. A more effective protection for children’s rights could be achieved by substituting the term “take all feasible measures” with “take all necessary measures”.
Additionally, the extent of protection afforded to children in armed conflicts is somewhat limited. The protocol only addresses children’s direct involvement in hostilities, rendering its provisions less robust than those in the Second Additional Protocol to the Geneva Convention of 1977, which prohibits children’s direct and indirect participation in armed conflicts.
The indirect involvement in conflicts, such as intelligence gathering, transmitting orders, or transporting ammunition and food, still places children at substantial risk of physical harm and psychological trauma, comparable to the risks faced by direct combatants.
A notable concern in the Optional Protocol arises from Article 3, which discusses raising the minimum age for voluntary recruitment. The practical implementation of the safeguards meant to ensure the voluntary nature of recruitment is challenging. In conflict-ridden regions, verifying age can be problematic due to the lack of established birth registration systems.
Furthermore, the protection offered in the initial paragraphs of Article 3 is undercut by a significant exception: the requirement to raise the volunteering age does not apply to military schools controlled or operated by the armed forces. This exception was made during the protocol’s drafting as many state delegations deemed it essential to securing an adequate number of qualified recruits for their national armies.[21]
The preference for a voluntary service system for individuals under eighteen over compulsory recruitment for older individuals has been acknowledged. Military schools are often seen as one of the limited avenues through which young individuals in economically disadvantaged countries can access quality education.
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Due to these issues in the first Optional Protocol - regarding the prevention of child recruitment - the United Nations General Assembly adopted the Third Optional Protocol on a communications procedure attached to the Convention on the Rights of the Child, under Resolution 66/138 dated December 19, 2011, which came into effect on April 14, 2014.
A key feature of this protocol is that it enabled children to access their rights through the right to lodge complaints or reports about violations they have suffered under the Convention on the Rights of the Child and the first and second Optional Protocols attached to it. It states that “
The Convention
The Optional Protocol to the Convention on the sale of children, child prostitution, and child pornography
The Optional Protocol to the Convention on the involvement of children in armed conflict.”[22]
This provides an excellent guarantee for protecting children’s rights and addressing the suffering of children and others in many parts of the world due to early recruitment.[23]
Despite the above-mentioned Third Optional Protocol’s reference to the possibility of complaints between states regarding violations of the protocol’s provisions, it allows these claims to be settled between the states, which contradicts the nature of human rights as inherent rights that cannot be compromised. States often prefer their international relations over complaining or reporting against another state, especially if the victims are not their nationals.
2. The Role of the International Criminal Court in Protecting the Rights of Recruited Children
Despite international efforts to combat the recruitment of children in armed conflicts, the incidence of this violation continues to rise. The International Criminal Court (ICC) plays a pivotal role in addressing this issue. The ICC’s approach to child recruitment, particularly in the landmark case of the Prosecutor vs Thomas Lubanga, sheds light on the legal framework and judicial mechanisms employed to counteract this grave concern. This discussion unfolds in two segments: the first elucidates the ICC’s legal perspective on child recruitment, and the second delves into the ICC’s adjudication in the Lubanga case.
2.1 The ICC’s Characterization of Child Recruitment
The Rome Statute, which is the foundational treaty of the ICC, explicitly prohibits the recruitment and conscription of children under fifteen years of age as a war crime, detailed in Article 8, paragraph 2(b)(xxvi). This statute positions the act as a severe breach of the international laws and customs governing international armed
The Concept of the Enterprise in the Algerian Competition Law (Between the Legal and Economic Concept)
Full text linkIn the context of competition law, the concept of an enterprise includes any entity engaged in economic activity, irrespective of the legal status of that entity and how it is financed.
From this definition of the company, we can see its characteristics, which are essentially the economic activity of this entity on the one hand and its legal independence on the other.
Any conduct in the market can only be considered if the undertaking concerned carries out an economic activity, i.e., an activity of production, distribution or import and export. It must also be independent of other companies in the same market. In other words, each company must be in a position to compete with the other to create perfect competition in the market. Therefore, competition law prohibits anti-competitive practices only if economic and independent entities commit them.
Through this study, we will highlight the concept of the institution in competition law, whether from a legal or economic perspective, and we will learn about the conditions for applying competition rules to the institution as a key element in the market.
Keywords: Enterprise, entity, economic activity, independence, market.
Introduction
The importance of competition law appears in protecting the principle of free competition itself, thus protecting the market as the domain of this competition. This protection is achieved through the legislator’s dedication to the principle of free competition between economic agents within the market, especially in the face of certain prohibited behaviors, and includes in this context the prohibition of arbitrariness resulting from the position of economic domination, the abuse of the status of economic dependence and anti-competitive agreements, etc. It falls under the phrase “anti-competitive practices”.
The customer element is the essence of competition law, and the purpose of its existence, where competition is located between institutions located in the same market, and some jurisprudence believes[1] that the institution is the real subject of the rules of competition law.
The institution allows the determination of the field of application of competition rules, but the institution considers the “distinctive” concept of competition law.[2] This concept is based on general criteria that give competition authorities broad discretion.
1. Entreprise Concept
The use of the term enterprise has become commonplace at present by most legal legislations without delving into the concept of this term itself, but competition law is concerned with the concept of enterprise to define the scope of application of the prohibition of anti-competitive practices.
1.1. Legal and Economic Concept of the Enterprise
The legal definition of the company is purely jurisprudential, and therefore, its definition differs from the multiplicity of jurists. Some jurisprudence defines[3] the institution as a legal person that includes a capital element on the one hand and a human on the other, where the first element contributes to the formation of the institution while the second element contributes to its management and management. Others define it as a harmonious group of people and money that is formed for a specific goal and directs its activity to achieve that goal.[4] Some consider it “an independent organization that includes a set of factors, with the aim of producing certain products or services for the market.” [5]
In economic terms, the institution is considered the engine of the economy in the market, and therefore, some define it as every economic unit that has a potential gain from the economic activity it practices. But this does not mean that the legal concept of the institution is separated from its economic concept, but the institution may be based on both concepts,[6] as some jurisprudence considers the institution as a unit that includes human and material factors to produce and sell products or services in the market.[7]
The Algerian legislator also mixed the legal and economic concepts in its definition of the institution, as it stipulates that it is: “Any natural or legal person, whatever his nature, who permanently carries out the activities of production, distribution, services or import”.
The Court of Justice of the European Community also affirmed that “an enterprise is composed of a body composed of personal elements, material and intangible, linked to a legally independent subject and continuously pursuing a certain economic objective” .[8] In another decision, it affirmed[9] that, within the content of the competition law, the enterprise means an economic unit from the point of view of the subject matter of the agreement in question, even if this economic unit is legally composed of several natural or legal persons.
Thus, restrictive competition practices can be carried out by companies, whatever their legal form, whether they are financial companies, companies of persons, professional organizations, trade unions, cooperative societies or groupings of the same economic interest.
1.2. Economic Activity of the Enterprise
It should be noted that the company concept cannot be separated from economic activity since both define the sphere of application of competition law. Some jurisprudence considers that[10] the practice of economic activity is an essential element in the definition of the institution in the competition law, where the latter focuses on economic activity while the commercial law uses the phrase “business”, and some believe It replaces the term economic activity used in competition law with the term business provided for in the Commercial Code.[11] Economic activity is defined as the supply of goods or services in a particular market.[12]
The Algerian legislator has addressed the concept of economic activity by defining the activities to which the competition law applies, as the second article of Law No. 10-05 states: “... Production activities, including agricultural and livestock activities, distribution activities, including those carried out by importers of goods for resale as they are, agents, livestock brokers, wholesale meat sellers, service activities, handicrafts and fishing, and those carried out by public legal persons, associations and professional organizations regardless of their legal status, form and purpose;
- Public procurements, starting from the publication of the tender announcement until the procurement’s final award.
However, applying these provisions shall not impede the performance of the public utility functions or the exercise of the powers of public authority. We note that the legislator has included activities related to imports, allowing distributors not directly supplied by producers to benefit from the same guarantees granted to other distributors, especially since most of the products distributed in the Algerian market are considered imported.[13]
The concept of enterprise is also not based on profit-making, as non-profit-oriented bodies can be adapted to institutions due to their economic activity, such as associations.[14] The competition law applies to the latter in the event of production or distribution activities.[15]
Thus, associations may be concerned with prohibiting anti-competitive practices when economic agents establish them to conduct economic activity in the market like other institutions. In this case, the association can issue orders and instructions to its members with the aim of unifying prices or sharing markets, so we are dealing with a prohibited practice, and therefore, the competition law is applied.
Therefore, no sector can be excluded, including banking, insurance, agriculture, etc. But what is the matter with social activities?
As for social insurance bodies, the Algerian Supreme Court has subjected the relations between the National Social Insurance Fund for wage earners and others to the ordinary rather than the administrative judiciary because they conduct business. The Court of Justice of the European Community also stipulated that these bodies be of a purely social nature, the latter embodied in the forced accession of the participants, the disproportion of the value of the subscription to the insured risk, its disproportion to the revenues of the participants and finally the lack of a direct relationship between the subscriptions and the services provided.[16]
To draw the boundaries between social activity and economic activity, the European law authorities have resorted to solidarity, the latter being the engine of social behavior, and considered that the bodies responsible for the administration of social security systems are not a company and therefore do not fall within the economic activities,[17] due to their social and non-profit theme. Therefore, profit is not an element on which to base the adaptation of the enterprise, but it is sufficient to contribute to economic exchange to say that the institution is engaged in activity economically[18]
Economic activity, therefore, lies in producing or distributing goods and services. Some jurisprudence even considers that “the primary function of the enterprise lies in the production of goods and services in order to exchange them in the market”.[19]
As for the French legislation, it does not define the concept of an enterprise but focuses on the nature of the activities carried out by it, as it stipulates that the provisions of the competition law apply to all production, distribution and service activities, including those issued by public authorities.[20] Jurisprudence has argued[21] that the prohibition should be applied to practices committed by persons exercising economic activity independently. The Court of Justice of the European Community affirmed that “within the scope of competition law, an enterprise means any entity engaged in economic activity independently of the legal framework of that entity and of how it is supplied”.[22] In this regard, a fundamental problem arises concerning the applicability of competition law to public law subjects.
It should be noted that the provisions of the Competition Law apply even to the conduct of public enterprises when the latter carry out economic activity, provided that their activities are separated from their powers relating to public utilities. Algerian jurisprudence affirms that “if the commission aims to make a profit, it takes on a commercial and industrial character. If it is intended to achieve the public benefit in a field of national life,[23] this body is considered to be of an administrative nature”. Some also assert that “...As soon as the latter intervenes in the economy, on the same terms as the private person, the same rules are imposed on them, including the rules of competition”.[24] Administrative conduct is prohibited only if the law is allowed to be violated by an “institution”.[25]
A public enterprise is defined in Algerian legislation as: “commercial companies in which the State or any other legal person subject to public law owns the majority of social capital, directly or indirectly. It is subject to the general Sharia.[26] Jurisprudence defines it as: “legal persons of an industrial and commercial nature, whose capital - in whole or most of it - is not subject to private ownership and is in a position of public dependency”.[27]
Thus, the economic activities of public persons are subject to the control of the ordinary judge instead of the administrative judge, just like private persons, and the decision of the Supreme Court in its Administrative Chamber of February 14, 1969, concerning the case of the National Office for Agrarian Reform is the most prominent example in this area. The Court ruled that: “It is established that the National Office for Agrarian Reform is a public institution of an industrial and commercial character and that in the application of the provisions of Article 7 of the Code of Civil Procedure, the Judicial Council of Algeria, which decides on administrative matters, is not entitled to properly consider a case against this institution”.
However, when public persons exercise the powers of public authority in the framework of their ordinary function, they are foreign to all economic activity, whether production, distribution or services and are therefore not subject to the provisions of competition law because the State acts, in this case, as a public authority and not as an economic agent.[28] In other words, in order to exclude the prohibition on public institutions, the latter must intervene in their capacity as public agent and public authority.[29]
Public persons may engage in economic activity but within the scope of the ordinary authority vested in them to achieve the public interest, so we are in a dual framework, an activity subject to the market on the one hand and foreign to it on the other. In this case, the provisions of the competition law shall apply unless such activity is necessary to achieve the desired public interest, but if this interest can be achieved without resorting to economic activity restricting competition, we are dealing with a practice prohibited by Competition rules.[30] The public authority’s restrictive conduct of competition is embodied by subjecting the exercise of a particular activity to quantitative restrictions, which constitute a barrier to market entry by new customers and allowing the retention of the limited number of institutions present in the market, or by imposing uniform practices in the field of prices or conditions of sale, which is the most common practice.[31]
Article III of Presidential Decree No. 02-250 of 24 July 2002 regulating public procurements defines the latter as: “Contracts written within the meaning of the legislation in force, concluded in accordance with the conditions provided for in this decree, to carry out works and acquire materials, services and studies, for the benefit of the contracting authority”. According to Article II of the same decree, the contracting authority is represented by “public administrations, independent national bodies, states, municipalities, public institutions of an administrative nature, research and development centers, private, public institutions of a scientific, cultural and professional nature, and public institutions of an industrial and commercial nature”.
In French law, this problem was resolved in one of the cases before the Court of Dispute in 1989, where one municipality decided to suspend the concession of the public service for the distribution of water granted to one institution in order to grant it to another institution.[32] The victim claimed that there was a restrictive competition agreement between the municipality concerned and the concessionaire institution, and she petitioned the French Competition Council to put an end to this restriction, but the Council rejected the case, reasoning its decision not to apply competition law to such cases,[33] while the Paris Court of Appeal considered that the distribution of water constitutes an economic activity and therefore subject to competition rules, and the Dispute Court took the same position, stressing the need to apply the prohibition related to agreements stipulated in the competition law, given the existence of economic activity represented in the distribution of water. Therefore, the lesson is not in the nature of the institution but the lesson in the nature of its activity.[34]
We note that economic activity constitutes a necessary criterion in the adaptation of the enterprise in both Algerian, French and European law, and the latter’s use of the phrase “prejudice to trade between member states” does not lead to a narrow interpretation of the activity practiced by the institution, but rather means trade “exchange of an economic nature”.[35]
2. Independence of the Enterprise
Restrictive practices are practiced by economic units that can be in a competitive position among themselves. Therefore each institution is required to enjoy its economic independence, in other words, to have sufficient independence in making decisions related to the demonstration of its behavior in the market. They must be legally and economically independent and bear the risks of the operations they conclude.[36] This raises the question of whether it is possible to distinguish between the institution and the person who owns or exploits it, or in other words, about the practices concluded between companies belonging to the same group.
The different subsidiaries of a single group form a single entity in the event that the companies concerned do not independently determine their market behavior.[37] In this case, we are within the framework of a group of companies, which some consider be a group linked by common interests,[38] through which the parent company has authority over the rest of the branches and exercises control over them, thus ensuring the unity of decision. Some jurisprudence also asserts that when it is impossible for an institution to search for its own interest, and when its actions are just implementing the instructions of another institution, we are dealing with one entity due to its lack of independence and the need to abandon its goal of in order to follow that desired by the parent company.[39]
Thus, the problem of the branch in the competition law is raised in several aspects, the most important of which is that it is the fruit of an emerging accession through a cooperation agreement within a partnership framework, which gives the parent company the authority to control it on the one hand, and retains the authority to act as an economic customer in the market on the other hand.[40]
The problem of branch autonomy in competition law should be examined from two perspectives: the first is to determine the possibility of managing subsidiaries of the same group, i.e., can the parent company distribute markets among its branches or determine the prices of services or products provided by the latter?
The second is that restrictive practices are attributable only to the company that actually performs such actions.
A prohibited practice can only exist between independent institutions, and practices between a branch and a parent company fall within the scope of competition law only in the case of branch independence.[41] In other words, when the branch does not have effective autonomy in determining its own commercial policy and forms with the parent company a common economic unit, the adaptation of the agreement or orchestrated practice is excluded in which the criminalization of the latter requires multilateralism.[42] This independence is manifested through the presence of the branch in a competitive position with the parent company due to the lack of dependency between them, such as the branch manufacturing products with new technology compared to those manufactured by the parent company, so we are in the process of competition - current or probable - between them.[43]
It should be noted that the branch does not always have the freedom to act independently, without any control from the parent company, and the branch may carry out the latter’s instructions. In this case, this dependent relationship must be proved, so how can the latter be proved?
The competition authorities refer to the presumption that the parent company owns the total or almost total capital of the branch. If this presumption is insufficient in proof, the authorities are forced to search for other evidence.
2.1. Capital Control and the Presumtion of Specific Impact[44]
The presumption of the parent company’s possession of the total capital of the branch was raised as evidence of the latter’s lack of independence by the Court of Justice of the European Community, which held in one of its cases that the branch necessarily followed the policy set by the parent company.[45] This presumption exempts the Committee from proving the existence of control on the one hand, and its exercise by the parent company on the other. Thus, the higher the percentage of capital owned by the parent company, the more difficult it is to prove the independence of the branch.[46]
Some even believe that the ownership by the parent company of a certain percentage of the branch’s capital is a presumption of the latter’s lack of independence, even if this percentage is small, as the independence of the institution assumes that it enjoys its financial disclosure.[47]
As for French law, the French Competition Council confirmed that the competition authorities could assume that the branch carried out the instructions of the parent company when it owned a large percentage of its capital without ensuring that it exercised this power.[48]
Therefore, the control exercised by the parent company and the decision unit is a key factor in excluding agreements concluded within the group from the scope of the ban, as although the branch has legal personality, it lacks independence.[49]
2.2. Additional Evidence
In the absence of a capital relationship between the parent company and the branch, the authorities must prove the existence of means through which the parent company monitors its subsidiaries and the actual existence of such control. These include the existence of the authority to decide within the branch, the identity of the managers, the instructions provided by the parent company, the commercial policy... In general, the parent company’s doing the most important things or performing all the management functions related to its branch is evidence of the absence of the latter’s independence. This is evident in one of the cases petitioned before the Court of Justice of the European Community, where it confirmed the absence of the independence of a branch of one of the institutions from the parent company even though the capital contri
Legal and Judicial Problems for Divorce According to Algerian Law
Full text linkDivorce is the dissolution of the marital bond between the parties, and it is either retroactive or irrevocable with minor or major evidence. It is one of the most frequently raised issues before the judiciary and raises many problems, the most important of which is the issue of proving divorce, especially with the ambiguity surrounding some of the articles that the legislator singled out for the issue of divorce and the difficulty of applying it judicially.
However, it is shrouded in some ambiguity, especially with the existence of Article 49 of the Family Code, which considers that divorce can only be established by a ruling. Is the judgment in this case considered revealing or decided?
Also, once a divorce from the husband occurs, its effects are achieved by dissolving the marital bond and the wife’s waiting period. This is from a legal point of view, but this contradicts what is stated in the legal texts. What are the procedures, if any?
Keywords: divorce, obstacles, dissolution of the marital bond, waiting period, family code
Introduction
Marriage is considered sacred, which is why it was called the heavy charter, as it was surrounded by a set of legal rules that guarantee its continuity and stability. Nevertheless, an exception is represented in divorce, which solves the disintegrated marital ties through which it is difficult to form a healthy family.
However, divorce is the most hated halal to Allah Almighty. Yet, it has been legislated and regulated by provisions that the husband must observe for the divorce to take place in a valid manner that is positive for its legal and legal effects.
Divorce is the dissolution and dissolution of the marriage bond, as it is defined legally as “lifting the restriction of marriage immediately or in the future with a term derived from the article of divorce or its meaning”.
Article 48 of the Family Code[2] defines divorce according to the cases taken by the latter, stating: “[...] A marriage contract shall be dissolved by divorce concluded by the will of the husband or by the consent of the spouses or at the request of the wife within the limits of Articles 53 and 54 of this Law”.[3]
It is evident from the legal concept that divorce is a dissolution of the marital bond using one of the words that indicate it, and it can take place by the will of the husband, at the wife\u27s request or by mutual consent.
But what interests us in this study is the divorce that takes place by the will of the husband, in which the judge has a negative role that is sufficient to verify the husband’s will and its validity to rule to prove this will and does not intervene except if it comes to reconciliation.
However, if we look at the text of Article 49 of the Family Code[4] which states: “Divorce shall not be established except by a judgment after several attempts at reconciliation conducted by the judge, but its period does not exceed three months from the date of filing the lawsuit [...]”.
However, it is shrouded in some ambiguity, especially with the existence of Article 49 of the Family Code, which considers that divorce can only be established by a ruling. Is the judgment in this case considered revealing or decided?
Also, once a divorce from the husband occurs, its effects are achieved by dissolving the marital bond and the wife’s waiting period. This is from a legal point of view, but this contradicts what is stated in the legal texts. What are the procedures, if any?
To answer these questions, we will divide this study into two sections, the first of which deals with how to prove divorce, and the second section the procedures for proving divorce in accordance with the provisions of the Algerian Family Code.
1. How to Prove a Divorce
Divorce is the dissolution of the marital bond by the will of the husband or the lifting of the marriage restriction at the husband’s rhythm, and divorce does not take place except in the form prescribed by Sharia.[5]
However, looking at the aforementioned Article 49 of the Criminal Code, we find that the legislator has submitted the issue of proof of divorce to the judiciary, but what is problematic is that divorce takes place outside the court and must be proved by a court ruling.
In this regard, the legislator began the article with the phrase, “It does not prove, and divorce is not held, so we wonder whether the judicial ruling, in this case, is a means of proving divorce, or is it a formal condition in which divorce occurs?”
In view of article 48 of the Penal Code, it is explicitly stated that the dissolution of the marital union may occur as a first case by the husband’s sole will and as soon as he utters the word divorce or what benefits him. However, article 49 of the Code deprives the husband of the freedom granted to him by Article 48 of the Code by restricting filing a lawsuit demanding the dissolution of the marital bond by the judiciary and subjecting him to attempts at reconciliation established by a record. Consequently, this legal article affirms that customary divorce outside the courts’ walls is not recognized.
Unlike the Egyptian legislation, which recognizes the occurrence of divorce outside the walls of the judiciary, where it can be proven by all means of proof such as evidence, oath and acknowledgement.[6]
Article 50 A[7] adds and makes the matter ambiguous when the legislator did not differentiate between retroactive divorce and definitive divorce, as the article stated that whoever visits his wife during the reconciliation does not need a new contract, while the one who reviews it after the issuance of the divorce judgment is the one who needs a new contract. In this case, does the legislator not recognize retroactive divorce, and what is the fate of the shot that occurred and led in the end and after filing the lawsuit to reconciliation?
According to Dr. Zoda Omar, divorce can only be done by a ruling, and revocation that takes place before the judge issues a divorce ruling does not fall within the concept of revocation related to retroactive divorce.[8] Article 49 restricts Article 50 of the Code of Criminal Justice to the need for a judgment to prove the occurrence of divorce.
This article also raises another issue related to the waiting period, which, if we look closer, we find has become double so that the wife is considered when the divorce from the husband occurs twice, once when the divorce occurs, which is the legal waiting period, and again when the judgment is issued, which is the legal waiting period.
In this regard, the judiciary affirms that: “Divorce is only a statement of the unilateral will of the husband to put an end to marital life, and the trial judges, when it is proven, can only testify and declare it [...]”.
Also: “It is prescribed by Sharia and according to what has been done by the Supreme Council that the husband’s utterance of divorce obliges him [...]”.[10]
This means that divorce becomes binding as soon as the husband utters it, while a judicial ruling only proves it because of its implications.
The legislator has restricted the husband’s right to divorce even though it is a voluntary right and subjected him to the need to obtain a judicial ruling, and therefore, the will of the husband stands unable to arrange its legal effects unless it meets the conditions required by law, which is the existence of the form required by the legislator by issuing a judicial ruling proving this will.[11]
However, Dr. Omar Zoda considers that the affirmation of a divorce judgment is a condition for convening and not for proof since the legislator when stipulating the need to have a judgment to prove divorce, meant that there is no divorce unless attempts at reconciliation precede it. Consequently, the husband must declare his will to divorce before the judge after the reconciliation proceedings have been completed, and therefore, the judge is considered a witness to this. On this basis, the judicial judgment is considered a condition for the validity of the divorce and not a condition of proof.[12]
Accordingly, according to this view, the legislator has been in line with the jurisprudence of Islamic law regarding the need to witness divorce with two witnesses.
2. Procedures for Proving a Divorce
Under Article 48 of the Family Code, a judicial ruling is considered a means or condition for divorce, without which the law does not recognize the existence of divorce.
The judicial ruling for divorce is characterized as a prescribed ruling, according to which the judge reveals the divorce that occurred at the will of the husband before resorting to the judiciary. The establishment of new legal centres represented the divorced and divorced after they were married, and therefore, the divorce judgment is a prescribed and established ruling. In this case, it is characterized by the following:
Its content includes the obligation to respect what has been decreed and the need to implement what it says.
As an official paper, it must be in writing.
It is issued by a judicial body whose rulings are characterized by legitimacy.[13]
Therefore, a divorce lawsuit is filed by an interested person by resorting to the competent court[14] accompanied by a petition stating all the necessary information, facts and reasons for the divorce, with the husband’s signature at the end.
However, problems can occur if there are symptoms that prevent the plaintiff from completing the judicial litigation, such as the court cancelling the lawsuit due to the plaintiff’s absence from the hearing despite the correct notification, the plaintiff leaving the litigation, or the lawsuit dropping. In reality, all these cases are divorced, but it is impossible to prove it under a judicial ruling. Therefore, a solution must be found to these problems that lead to the loss of the rights of the defendant party from a legal and legal point of view.
Therefore, we believe the divorce should be documented immediately after its occurrence by each interested party and by those who claim to prove the opposite.
Article 49 of the Family Law also shows that there must be reconciliation procedures after applying to the judiciary to prove divorce. Are they considered and mentioned within the ruling of reconciliation? Or it is ignored. If it is ignored, what is the fate of that relationship from a legal point of view?
Reconciliation is considered an essential and compulsory procedure before the divorce is issued. Still, it is useless if the divorce takes place outside the court framework, and the parties contact the court only to prove the fact of divorce in an official capacity. Especially if it happens, for example, if a man divorces his wife outside the court and resorts to the latter to prove the divorce and the reconciliation was made, and he divorced her again, and the reconciliation was made, and he divorced her again, and the reconciliation was made, does the judge, in this case, solve it forbidden by reconciling them or does he calculate the previous three shots and sign the divorce and the wife shows him a major statement and is not permissible for him after that except by marrying another and divorcing her or dying for her.[15]
However, if the judge reconciles several times and this is not done, he must prove this using a record signed by the parties, the registrar and the judge, with a parallel public hearing to pronounce the divorce ruling.[16]
The role of the Public Prosecution was also activated after the amendment of Article 49 of the Family Law, so it seeks to register the divorce judgment in the civil status records obligatorily, without a request from one of the parties, as a legitimate representative of society.[17]
Conclusion
Finally, we conclude that the legislator did not recognize extrajudicial divorce, although the articles suggest otherwise. The legislator did not explicitly distinguish between retroactive divorce and irrevocable divorce. Although he did so in Article 51 of the Law when he distinguished between divorce with a minor intention and a divorce with minor evidence, this is when he stated that a husband cannot return to his divorced wife three times in a row until she marries another person and divorces him or dies from her after construction.
Articles 48, 49 and 50 of the Family Code have sought to give the divorce ruling an official form even though these articles affect the provisions of Islamic law in several respects:
Divorce is a major effect of the marital bond;
The issue of divorce is one of the most serious issues affecting society, and that affects it negatively, as it leads to the dispersion of the family and its collapse and the beginning of the loss of children who will grow up in an inappropriate environment that affects their psychology, which leads them to deviation in the future;
Divorce is a man’s exclusive right to Algeria, as marital infallibility is in his hands, so the husband must make good use of this right for extreme necessity and seek to follow the procedures stipulated in the law to guarantee the rights and the legal effects of divorce;
The legislator’s goal through Article 49 is to narrow the cases of divorce and to preserve the cohesion of the family and the children;
The legislator obliges the judge to attempt reconciliation between the spouses, as it is an essential procedure in divorce before deciding on the case;
The Algerian legislator omits divorce outside the judiciary despite its recognition by jurisprudence;
The absence of a procedural law on personal status has led to many problems in the field of application;
The Code of Civil and Administrative Procedure is the procedural reference for divorce cases;
Referral from the legislator to the provisions and principles of Islamic jurisprudence and the opinions of jurists in complex divorce matters, in accordance with Article 222 of Law 11/84 as amended and supplemented;
Incompatibility of the family law with the requirements of Islamic law;
The Algerian legislator does not recognize divorce outside the judiciary through its stipulation in Article 49 of the Algerian Family Code that divorce can only be proven by a ruling. Therefore, the husband must declare the divorce before the judge. The legislator’s silence on customary divorce created serious problems, especially if the waiting period expires, and thus, the divorce becomes a major manifestation and its consequences;
Despite the legislator’s silence on customary divorce, judicial applications work by proving it retroactively from the day it was uttered by the husband after confirming the validity of the divorce by the testimony of witnesses;
The irrational formulation of the legal texts that regulate divorce, especially Articles 49, 50, and 51, compared to the provisions of Islamic Sharia;
The legislator omits and does not refer to the issue of witnessing divorce because witnessing has many benefits that limit the use of the right to divorce, especially the fanatic husband who is hasty in divorcing his wife;
The terrible increase in divorce rates is due to the absence of religious scruples of people and their ignorance of the seriousness of this procedure, so the Algerian family has become fragile and rapidly collapsing, which will necessarily lead to a lack of cohesion in society;
The judge makes an effort to apply the law and the provisions of Islamic law in the matter of proving divorce. Still, his conviction remains relative, especially in the case of denial by the husband of the occurrence of a divorce. Therefore, the spouses must be more careful than the judge when applying their religion and what Islamic law stipulates.
Therefore, we call on the legislator to change the method of proving the divorce ruling, which has become a violation of the provisions of Islamic law, and this is a Muslim country. For this, we propose the following:
Witnessing the divorce for those who want to divorce, and this is so that the shots that occurred without applying to the court are counted. Therefore, the court is resorted to in this case only for the sake of proof, and in this way maintaining the provisions of Islamic law;
Delete the article related to proof because it violates the provisions of Islamic law and limits the proof of divorce to documenting it, with penalties if the divorcee does not do so. Adding articles within the family law protects the injured party in the event of failure to document the divorce, especially since manipulation in such matters seriously affects the family and society alike and falls into haram;
Determining the duration of the beginning of the waiting period accurately, and this is because there is a difference between divorce located outside the walls of the judiciary and divorce before the court, and this is not to create legal problems.
In the end, we say that although divorce is the right of the husband to sign, the legislator must regulate it with tight legal rules that prevent manipulation of it, as it is the most hated halal to Allah Almighty. Its occurrence leads to dismantling of family ties, considered the basis of society. Insufficient regulation and lack of clarity of legal texts lead to the loss of rights, especially the rights of the child who is considered a victim of divorce.
Bibliography
Books
Ahmed, I. A. H., Al-N. (1996). Women’s Rights in Islamic Law. Dar Al-Thaqafa Library for Publishing and Distribution.
Abu Zahra, M. (2016). Personal Status. Dar Al-Fikr Al-Arabi, Cairo.
Al-Arabi, (1994). Family Law. Principles of Jurisprudence According to the Decisions of the Supreme Court. University Publications Office Algeria.
Zoda, O. (2003). The Nature of the Judgments Terminating the Marital Bond and the Effect of Appealing it. Exclidea Publications Algeria.
Al-Bakri, M. A. (1996). Encyclopedia of Jurisprudence and the Judiciary in Personal Status. Dar Mahmoud for Publishing and Distribution.
Journal Article
1. Ma’amir, H. (2013). Proof of divorce between law and the judiciary. Al-Haqiqa Magazine (27).
Legal Acts
1. The Family Code. (June 9, 1984). G.R. No. 24 of June 12, 1984, amending and supplementing <http://jafbase.fr/docMaghreb/Algeriecode_famille.pdf> [30- 07-2023].
Footnotes
[1] Abu Zahra, M., (2016). Personal Status. Dar Al-Fikr Al-Arabi, Cairo, p. 279.
[2] The Family Code. (June 9, 1984). G.R. No. 24 of June 12, 1984, amending and supplementing. <http://jafbase.fr/docMaghreb/Algeriecode_famille.pdf> [30- 07-2023].
[3] This Article was amended by Ordinance 05-02 of February 27, 2005, G.R. No. 15 of February 27, 2005.
[4] This Article was amended by Ordinance 05-02 of February 27, 2005, G.R. No. 15 of February 27, 2005.
[5] Ahmed, I. A. H., Al-N. (1996). Women’s Rights in Islamic Law. Dar Al-Thaqafa Library for Publishing and Distribution, p. 143.
[6] Al-Bakri, M. A. (1996). Encyclopedia of Jurisprudence and the Judiciary in Personal Status. Dar Mahmoud for Publishing and Distribution, p. 183.
[7] Article 50 of the Code states: “Whoever visits his wife during the reconciliation attempt does not need a new contract, and whoever returns to her after the divorce judgment is issued needs a new contract”.
[8] Zoda, O. (2003). The Nature of the Judgments Terminating the Marital Bond and the Effect of Appealing It. Exclidea Publications Algeria, p. 32.
[9] Supreme Court, Civil Chamber, 27/03/1968. Annual Bulletin 1968, p. 106, quoted in: Al-Arabi, B. (1994). Family Law, Principles of Jurisprudence According to the Decisions of the Supreme Court. University Publications Office Algeria, p. 58.
[10] Supreme Court, Personal Status Chamber, 17/12/1984, file No. 35322, Judicial Journal 1984, No. 4, p. 91, quoted by: Al-Arabi, B. Previous reference, p. 73.
[11] Zoda, O. Previous reference, p. 107.
[12] Ibid, p. 31.
[13] Ma’amir, H. (2013). Proof of divorce between law and the judiciary. Al-Haqiqa Magazine (27), pp.134-166.
[14] Article 8 of the C.E.M.E.D. stipulates: “Applications relating to claims for divorce or return to the marital home shall be filed before the court within whose jurisdiction the marital home is located”.
[15] Ma’amir, H. Previous reference, p. 159, Article 51 of the Penal Code stipulates: “A man cannot return to a person who divorces her three times in a row until she marries another person and divorces him or dies from her after construction”.
[16] See Articles 37 and 144 of the Code of Civil and Administrative Procedure.
[17] Previously, the parties were in charge of the process of registering the judgment after possessing the authority of the res judicata in the civil status records, but now the matter is entrusted to the Public Prosecution, see: Ma’amir, H. Previous reference, p. 161.