The aim of this article is to highlight that the actual role of the administrative courts in tax matters is not only applying law, in the classical meaning, but also making law. In fact, those two terms: making law and applying law are difficult to distinguish. The question is, to what extent the administrative courts should participate in law making. The fact is, that in numerous cases judgements protect taxpayers from negative effects of tax regulations.
Article 38, para.1, of the Statute of the International Court of Justice (ICJ) defines customary international law as evidence of general practice accepted as law, understood as State practice and opinio juris. However, by identifying certain norms as an international custom without referring to the traditional evidence of State practice and opinio juris, international courts and tribunals are contributing to the formation of customary international law. This paper presents an analysis of how the International Court of Justice contributes to the formation of customary international law by relying on the draft articles of the International Law Commission (ILC). Th e International Court of Justice, in “deciding in accordance with international law”, also authoritatively declares what the current international law is, while the International Law Commission, although constituted of highly qualified publicists from various States, is drafting only non-binding international instruments. By relying on the ILC draft articles and declaring them to be reflecting customary international law-although the draft articles may not be necessary the expression of the States’ practice and their opinio juris, the ICJ creates and generates the creation of customary international law. Interestingly, the ICJ tends to rely mostly on ILC draft articles that refer to the jurisprudence of either the Permanent Court of International Justice (“PCIJ”) or the ICJ itself. Th e paper presents research of approximately 70 ICJ decisions and individual opinions that cite to the work of the ILC. The author notes the evolution of the relationship between the ICJ and the ILC through three different time periods, and presents the findings on how, when and why the ICJ relies on the ILC draft articles. In addition, the author gives examples in which the ICJ rejected the reliance on the ILC’s work, mainly due to the divergent interpretation on the specific area of international law. The ICJ, by relying on the ILC draft articles that in turn refer to the jurisprudence of the ICJ or PCIJ, is not only generating norms of customary international law, but is also reaffirming the importance of its (and PCIJ’s) jurisprudence for the future of international law. Although ICJ decisions are binding only between the parties to the dispute (Art.59 ICJ Statute), the clarification of whether a norm is customary or not, affects the international community of States. Noting the present reluctance of States to adopt treaties, and- hence their potentially decreasing role in international law-making, this research offers an insight into an alternative venue of international law-making. As the international community, and the ILC itself, is regaining interest in the sources of international law, this paper aims to identify the mechanisms of international law-making, the understanding of which will contribute to international law’s needed predictability and a more uniform and reliable interpretation of international law.
This article explores capacity to marry in depth, beyond the literal statements presented by legal acts in Estonia. Th e discussion will be focusing on answering the following questions: What is the nature of marriage capacity and how it has been developed in Estonia? What are the values that the Estonian Family Law Act (2010) protects when regulating marriage capacity? In addition a brief comparative analysis will seek to explain how different regulations of the EU member states on the same matter (marriage capacity) are. Th is can also help discussions on whether is it justified to talk about cultural differences of EU member states in the context of marriage capacity or not.
. Between Idealism and Realism (3 rd ed, OUP 2014).
Ulfstein G, ‘Individual Complaints’ in H Keller, G Ulfstein (eds), UN Human Rights Treaty Bodies (CUP 2012).
Walter Ch, ‘Der Internationale Menschenrechtsschutz zwischen Konstitutionalisierung und Fragmentierung’ (2015) 57 Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 753, 757.
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Wolfke K, ‘Some Reflections on Kinds of Rules and International Law-Making by Practice’ in J Makarczyk
Authoritarian governments are by their very nature unconstitutional. Such government thinks of themselves as above the law, and therefore sees no necessity for separation of powers or representative governance. Constitutional democracy on the other hand, is however based on the notion of people’s sovereignty, which is to be exercised in limited manner by a representative government. Accordingly, judicial activism in this paper is employed to establish the theory of popular participation of courts in the decision making processes through settlement of disputes, interpretation or construction of laws, determination of propriety of legislations, legislative and execution actions within the doctrine of separation of powers for the purpose of enforcement of the limitations in government on constitutional ground. This paper thus examines the concept of judicial activism, its legitimacy and as a mechanism for providing checks and balances in the Nigerian government. The paper demonstrates a game theory of judicial legislative interaction within their function and contends that the notion of judicial supremacy does not hold water because the legislature always has the second chance of invalidating the judgment of courts exercising the legitimate powers. The paper concludes that judicial activism in these countries is a veritable tool in advancing the compliance with the rule of laws on the ground of the Constitution.
This article presents crucial problems of enacting and interpretation of local law. According to the Constitution acts of local law are the source of universally binding law in the territory of the organ issuing such enactments. Enacting of local law by the local self-government is the exercise of its law- making function, derived from statutory authorization. Law-making of the local self-government does not have an autonomous character in regard to legal acts. Enacting of local law by local self-government is its duty. The interpretation of the law enacted by the local self-government has its own specifics. Law which is legislated in such way is likely to be corresponding with the expectations of the local community
Constitutional politics seemingly corroborate the assumption that Germany is a Grand Coalition state. In this perspective German cooperative federalism and the supermajority required for any amendment to the constitution privilege bargaining and intertwined policy-making as modes of conflict resolution and thus support grand coalitions. In this paper I will explore whether this theory can explain constitutional politics in the German Länder. Firstly, I examine how far sub-national constitutional politics match the functioning of cooperative federalism that is a defining feature of the Grand Coalition state. Secondly, I examine sub-national constitutional politics in the five new Länder and bring the role parties played in this policy field to the fore. Overall, I conclude that cooperative federalism did not impact on constitutional politics in East Germany and that the features of consensus democracy are only partly able to explain law-making in this sector.
Vladislav Krastev, Blagovesta Koyundzhiyska-Davidkova and Nadezhda Petkova
In 2000, the global policy against the phenomenon of “corruption“ was launched by the United Nations, and in 2003 the United Nations Convention against Corruption (UNCAC) was adopted, which Bulgaria ratified three years later. Two months after the adoption of this international convention, Bulgaria became part of the European Union. The accession was accompanied by the creation of “specific accompanying measures” aimed at correcting identified deficiencies in various areas, including measures against corruption. As a result of the annual reports of the European Commission on Bulgaria’s progress on the Co-operation and Verification Mechanism, anti-corruption law-making has begun to develop and improve. Serious progress in this direction is the creation of legislation in the area of “conflict of interest”, which is not exactly corruption but creates prerequisites for its development, especially in the public sphere. The paper presents the result of the analysis of the created anti-corruption legislation after the accession of the Republic of Bulgaria to the EU. Particular attention is paid to the law adopted in 2018 regulating anti-corruption measures, as well as the terms and procedure for the seizure of illegally acquired property for the benefit of the state.
The mitigation of greenhouse gas emissions has become one of the most important topics on the agenda of EU- and national policy-makers. The importance of the climate change issue is exponentially growing from year to year, gathering specialist from the academic, economic and energy fields in the hope of finding the best solutions in fighting the negative effects of the phenomenon. This challenge has issued an intense debate around the doctrines on which policymakers ground the process of law making. Two of the most debated theories are the neoclassic economic doctrines, on which the major part of the climate change regulation is based, and the innovation economic doctrines, which gained a lot of popularity and supporters in the academic field for the last couple of years. The paper presents the advantages and opportunities of current climate change legislation, as well as their disadvantages and limits. Furthermore it focuses on emphasizing common issues that lead to the failure of climate change legislation and implicitly cause economic loss, lowering the attractiveness of future investments. Based on our research we have developed a decision making model for legislation and regulations of the environmental and energy sectors. The developed model offers guidelines to policy-makers of the energy field and aims both environmental and economic sustainability.
Roberts A, ‘Traditional and Modern Approaches to Customary International Law: A Reconciliation’ (2001) 95 American Journal of International Law 757.
Talmon S, ‘Determining Customary International Law: The ICJ’s Methodology between Induction, Deduction and Assertion’ (2015) 26(2) European Journal of International Law 417.
Tams Ch, ‘Meta-Custom and the Court: A Study in Judicial Law-Making’ (2015) 14 The Law and Practice of International Courts and Tribunals 51.
Wolfke K ‘Some Persistent Controversies Regarding Customary International Law’ (1993) XXIV