The Role of the Writ of Execution Issued by a Notary in Preventive Justice and Effective Enforcement
The present article examines the legal nature of the writ of execution issued by a notary, its functional purpose, and its relation to preventive justice. The study aims to evaluate the extent to which this mechanism ensures the effective enforcement of due claims while maintaining procedural balance between the interests of creditors and debtors. The article analyses the Georgian legislation and the practice of the judiciary in comparison with the judicial experience of France and Spain. The research is based on doctrinal, normative, and comparative-legal methods. It also examines the institutional role of a notary, the principle of impartiality, and the significance of enforceable legal instruments, with a particular focus on legal consequences of the writ of execution issued by a notary, simplified enforcement mechanisms, and procedural safeguards. The study finds that a notarized agreement and the writ of execution issued on its basis contributed to reducing the workload of courts, ensuring the prompt satisfaction of the creditor’s claim and stability of legal relations. At the same time, further improvement of legal and procedural standards is necessary for ensuring the successful exercise of this mechanism. Keywords: Notary, notarial act, preventive justice, writ of execution, enforcement proceedings. Introduction The effective functioning of the administration of justice depends largely on the enforcement system, which ensures proper protection of rights and is based on the principles of transparency, efficiency, predictability, and procedural consistency. This is particularly significant where due and balanced protection of the parties’ interests is required.[1] This idea is reflected in the principle ubi jus, ibi remedium – there is no right without the mechanism of its effective enforcement.[2] Notarial registration of an agreement ensures proportionate protection of the parties’ rights,[3] as a notarial act is considered as the document having conclusive evidentiary effect.[4] The institutional neutrality of a notary creates a precondition for a notarized agreement to be regarded as a reliable and enforceable legal mechanism.[5] Accordingly, a writ of execution issued by a notary transforms the notarial act into both an evidentiary and an enforceable legal instrument.[6] Although the institutional function of the notary and the evidentiary force of notarial acts have been widely examined in Georgian and foreign legal doctrines, the legal nature of the notarial writ of execution, its connection with procedural safeguards, and preventive justice remain insufficiently explored. This study aims to evaluate the functional purpose of this institution within existing mechanisms of enforcement. Methodology The methodology of the article combines doctrinal, normative, and comparative legal analysis. For the purpose of evaluating the legal character and practical function of a notarial writ of execution, the study examines the applicable legal rules, relevant case law, and academic sources. The interpretation of the legal material is carried out through systematic and teleological approaches, while the comparative component relies on the experience of selected Continental European legal systems. 1. The Institutional Role of the Notary and the Principle of Impartiality The notarial registration of an agreement is based on the principle of impartiality, where the notary acts as a neutral party entrusted by the parties and not by any of the parties. Unlike a lawyer, who represents one of the parties by virtue of the nature of the profession,[7] the notary verifies the legal correctness of the agreement and safeguards the interests of the parties. The function of the notary is not limited to drafting and confirming a notarial act; it also contributes to dispute prevention.[8] In the doctrine, a notary is described as an actor performing the role of a „private judge”, while their work is regarded as an instrument for “regulation of obligations”.[9] In this context, the impartiality of a notary is largely related to the principle of balance, which obliges them to take fair decisions and ensure the protection of the parties’ rights. Notary’s independence and impartiality are supported by relevant guarantees, including the remuneration, which rules out dependence on any of the parties. These features make the notarial model significant in terms of reconsidering the role of the lawyer, especially in matters involving the representation of multiple clients.[10] 2. Notariat in the Continental European Legal Systems and the Latin Notariat The traditional understanding of the European notariat is based on the historic and functional meaning of the term “notaries”.[11] Despite the common foundation, the notarial systems in European states differed in terms of institutional position and powers, as well as in the context of the degree of legal reliability of the documents drafted by them.[12] German, French, and Spanish legal systems have been selected for the comparative analysis conducted in the present study, because notarial acts in these jurisdictions are regarded not only as documents possessing high evidentiary value, but also as the instrument of direct enforcement. In certain continental legal systems, notarial acts are vested with enforceable authority, allowing creditors’ claims to be enforced without prior judicial involvement. 2.1. The notariat in Germany and the power of the writ of execution According to the German Doctrine, the notary provides legal guidance with respect to their expressed intentions and demonstrations of will.[13] In Germany, the notariat represents a classic example of a legal institution authorized by the state, while remaining professionally independent. The notary acts as a public official vested with public trust, responsible for verifying the authenticity of legal documents, safeguarding the rights of the parties, and exercising a preventive legal function. In the German legal system, the notary is regarded as a holder of a public office entrusted with the performance of sovereign functions. Unlike a judge, however, the notary does not operate within a state body, but rather exercises these functions within the framework of an independent legal profession.[14] The German system is based on the principle of preventive justice (präventive Rechtspflege), under which the notary’s primary function is to prevent legal disputes before they arise. With this purpose, the notary reviews legal transactions, ensures their compliance with the law, and verifies that the parties fully understand the legal consequences of their actions. This approach is particularly important in matters related to real estate agreements,[15] company registrations, and family law. The high evidentiary value and, in certain cases, direct enforceability of the acts drafted by the notary[16] contribute to the reduction of judicial disputes by enhancing the efficiency of legal relationships. Generally, the drafting of an authentic document is subject to strict formal procedures designed to prevent insufficient awareness of the parties and hasty actions when composing the document that will be reliable evidence.[17] In German law, the notary may grant a claim established by contract or by the debtor’s unilateral declaration of intent an enforceable effect equivalent to that of a court judgment. This model is founded on the procedural safeguards inherent in the notarial certification process.[18] A writ of execution, issued based on a notarially certified agreement, enables the creditor to obtain prompt enforcement of the claim. It is noteworthy that this document is issued without any prior judicial examination of the claim.[19] In Germany, the participation of a notary effectively reduces the transaction costs as the notary’s neutral position and obligation to prevent undesirable outcomes for one of the parties actually removes the need for separate legal representation for both parties.[20] 2.2. The notariat and the enforcement proceedings in France The French notariat represents a classic model of a Latin notarial system, where the notary is a state-authorized public officer who carries out professional activities independently. Sometimes their function is described as the performer of “preventive justice”. The French system is based on the concept of the notarial act (Acte Authentique), a document possessing enhanced evidentiary force and, in many cases, direct enforceable effect.[21] As a result, this system reduces reliance on litigation and promotes stability of legal relationships. In France, notaries participate in the transactions related to the sale and purchase of real estate, ensuring both the legal validity of such transactions and the informed participation of the parties. The notary is responsible for ensuring that the parties fully understand the legal consequences of the transaction.[22] Under French law, the notary is broadly authorized to issue the writ of execution; however, the legislation provides for certain exceptions. Specifically, disputes related to the prevention of unlawful interference with residential premises are subject exclusively to judicial determination.[23] because of the social implications associated with the use and occupation of residential property. Consequently, entrusting such matters to the courts ensures a higher standard of protection of the parties’ rights, as courts are vested with broader discretionary and procedural powers in the assessment of such disputes. 2.3. The Spanish notarial system: Experience and characteristics of enforcement proceedings The Spanish notarial system represents one of the classic and most developed models of Latin Notariat, which is based on the combination of the professional independence and public authority of the notary, thereby ensuring high legal reliability of notarial acts.[24] In Spain, the notary is a public official authorized by the state who simultaneously carries out an independent professional activity. The notary’s primary function is to certify the authenticity of legal acts and ensure their compliance with the law.[25] One of the significant features of the Spanish notarial system is the enhanced legal force of notarial acts. The documents drafted by notaries are regarded as a public instrument and carry high evidentiary value in legal proceedings. Such documents often have a direct enforceable effect, which substantially simplifies the regulation of legal relations and reduces the need for judicial proceedings.[26] Spanish notaries play a central role in the real estate circulation.[27] In the transactions of sale and purchase of immovable property, notaries certify the legal validity of the transaction, examine the responsibilities of the parties, and guarantee compliance of the transaction with applicable legislation.[28] This procedure established a high level of legal certainty and ensures the effective protection of property rights. Under Spanish Law, the notarial act constitutes one of the grounds for launching enforcement proceedings. Besides, the law provides that not only the original, but the copies of the notarial acts, have enforceable value provided that they are issued with the consent of both parties or certified by the court and specify the person against whom enforcement is to be carried out.[29] The skepticism of the Spanish notary towards the Anglo-Saxon notarial model primarily is grounded on the fact that the overall judicial system is based on more flexible and less formalized legal control, whereas the Roman-Continental notariat places particular focus on the prior verification of legal acts and the safeguarding of legal certainty.[30] 3. The Simplified Enforcement Function of the Writ of Execution The notarized transactions have enhanced legal reliability compared to oral or written agreements,[31] as notarial certification confers special evidentiary value on the transaction. Furthermore, the doctrine considers prevention, protection against hasty decisions, and evidentiary assurance as the primary function of notarial certification.[32] In case the parties agree on an alternative dispute resolution mechanism within the contract, the satisfaction of due monetary claims may be effected on the basis of a writ of execution issued by a notary,[33] which constitutes the independent legal ground for initiating the enforcement proceedings. Through this regulation, the lawmaker has conferred on the notary a competence that enables creditors to satisfy their claims through a simplified procedure without judicial examination, at the same time contributing to the alleviation of the judicial system’s workload. This model does not limit the notary’s function to notarial certification of legal acts, but also makes notarial activity an instrument of preventive justice.[34] The obtaining of the writ of execution is a relatively swift and cost-effective procedure, causing no need for additional financial expenditures for the parties.[35] The distinctive feature of a notarial enforcement is that it enables the creditor to obtain satisfaction of the claim through compulsory enforcement, including by directing execution against the debtor’s assets.[36] A notarial writ of execution constitutes an enforcement document provided for under notarial legislation and is subject to compulsory enforcement.[37] Accordingly, the legal framework recognizes the enforceability of writs of execution issued by notaries. As a result of the legislative amendments of the 7th of December, 2010, Georgian law conferred on notaries the authority to issue the writ of execution, thereby granting notarial instruments binding legal force for enforcement purposes.[38] This mechanism creates no significant financial barriers for the parties,[39] which indicates a relatively balanced protection of the parties’ rights. In this context, the approach of the legislator aimed both to ensure the effective protection of the creditor’s interests and to uphold the principle of procedural equality. According to point 5, article 38 of the Law of Georgia on Notaries, a notary public shall issue a writ of execution based on a matured claim for the enforcement of the payment of monetary indebtedness, the assignment of title to property, and, based on a request, compulsory enforcement against a mortgaged/charged property.[40] This provision makes clear that the enforcement writ issued by a notary may be used both to secure the fulfillment of monetary obligations and to facilitate the exercise of rights related to the subject of the security.[41] The transfer of the rights to property, where an appropriate contract clause exists, may be interpreted as enabling the creditor to directly acquire ownership of the secured asset. Accordingly, if the parties agree on the transfer of ownership of the secured asset based on a notary’s enforcement writ, it is permissible, within the framework of the applicable legal regulation, for the property to pass directly into the creditor’s ownership in exchange for the performance of the obligation and the set-off of mutual obligations.[42] 3.1. Procedural and legal preconditions for issuing a writ of execution The Georgian legislation establishes both general and special mandatory requirements for an enforcement writ. According to the law, the enforcement writ must contain the information about the issuing authority, the case based on which it was issued, the dates of the decision and its issuance, the operative part of the decision, as well as the identification and contact details of the creditor and the debtor.[43] The law also defines the special additional requisites for the writ of execution. The document shall include the information about the notary public and relevant notary office, the basis of the obligation, the performance deadline, the content and the scope of the enforceable obligation, as well as the registration details in the notarial acts register.[44] Article 40 of the Law of Georgia on Notaries established the legal and procedural grounds for enforcement based on a notarial document. The issuance of a writ of execution is carried out upon a written application of the creditor or their legal successor, to which the relevant notarial document shall be attached.[45] In addition, the claim must not depend on the creditor’s performance of reciprocal obligations, or such obligations must have already been performed. An important feature of the provision is that a notarial document is granted special evidentiary and enforceable force, which allows the creditor to initiate compulsory enforcement without court proceedings. The European Commission for the Efficiency of Justice (hereinafter - CEPEJ) of the Council of Europe considers enforcement an inseparable part of doing justice, and notes that ineffective enforcement renders the right to legal protection merely formal.[46] The Constitutional Court of Georgia has indicated that the issuance of a notarial writ of execution does not rule out the possibility of judicial consideration and does not infringe the right to a fair trial, as the debtor retains the right to appeal both the notarial act and the writ of execution. At the same time, the court emphasized the preventive function of the notary and noted that a transaction certified by a notary is characterized by a higher degree of reliability.[47] Alongside procedural safeguards, the legislation also provides for the possibility of issuing a duplicate enforcement writ in case of loss,[48] which serves to ensure continuity of enforcement proceedings and legal stability. This norm is consistent with the position of CEPEJ,[49] according to which the timeliness and effectiveness of enforcement are important components for the effective exercise of justice. 3.2. Partial suspension of the writ of execution The partial suspension of the writ of execution is one of the important mechanisms in safeguarding the balance of the interests of the parties. The Law of Georgia on Enforcement Proceedings provides for the mechanisms of the suspension of the enforcement,[50] which in practice may also apply to only a specific part of the claim. In such circumstances, a full suspension of enforcement may be regarded as a disproportionate interference with the creditor’s rights, whereas partial suspension ensures both the protection of the creditor’s interests and the preservation of the debtor’s procedural safeguards. The mechanism of suspension of enforcement is aimed at the temporary balancing of the parties’ interests; however, it should not become a means of unjustified obstruction of the creditor’s claim. It has been noted in the case law of the Supreme Court of Georgia that multiple suspensions of the enforcement procedure, especially when the debtor fails to comply with installment payment terms, endanger effective enforcement and actual exercise of the creditor’s rights.[51] It is noteworthy that CEPEJ places a particular focus on respecting the principles of proportionality and effectiveness in enforcement proceedings.[52] This approach is especially important in cases where only part of the claims is disputed, and a full suspension of enforcement would exceed the objectives of enforcement. 3.3. The notary, registration of property rights, and enforcement The work of the notary is closely linked with the legal system of registration and enforcement of property rights. The notarized transactions and registration of property rights contribute to the stability of civil circulation and legal security. This is particularly evident in mortgage relations, where the accuracy of registration and the reliability of the notarial document constitute essential preconditions for the effective enforcement of the creditor’s rights. The civil law tradition assigns notaries a significant role in safeguarding legal certainty in property-related transactions. Through preventive legal oversight and verification of legal acts, notarial involvement enhances trust in the transfer of real estate and strengthens the predictability of legal relations. These features are commonly viewed as supporting economic stability and market efficiency. Furthermore, the institution of the notary produces wider benefits for both the economy and society by promoting legal security and reducing transactional risks.[53] The effective exercise of the principle of legality with regard to the registration of the property law requires prior legal scrutiny of the transaction, which is particularly important in real estate conveyances. The notarial form enhances the reliability of both the transaction itself and the right registered in the public registry, as the notary verifies the legality of the transaction, the authenticity of the parties’ intent, and their legal capacity to act.[54] Furthermore, notarial participation helps address imbalances in information available to the contracting parties. By ensuring that each party is properly informed about the legal implications of the transaction, the notary contributes to the protection of their respective interests, particularly those of the more vulnerable party. In this way, the notarial function promotes transparency, reduces the likelihood of misunderstandings, and strengthens legal certainty.[55] The effectiveness of these mechanisms, despite their practical significance, simultaneously raises concerns regarding the provision of procedural safeguards and the protection of the right to a fair trial. 3.4. Compliance of a notarial writ of execution with the right to a fair trial The enforcement of the matured monetary claim based on the writ of execution issued by the notary shall be initiated by the National Enforcement Bureau without prior recourse to the court, which raises the question of its compatibility with the right to a fair trial. However, this mechanism itself is not contrary to the principle of a fair trial, as it does not rule out access to the court. The debtor retains the right to appeal the enforcement measures and demand judicial review, which represents a minimum procedural safeguard. The case law of the Constitutional Court of Georgia is particularly important in this regard. The court has indicated that issuance of the writ of execution by the notary may not breach the right to a fair trial, as the debtor retains the right to appeal both the notarial act and the writ of execution. Furthermore, the court has emphasized the notary’s preventive function and noted that the transaction certified by the notary is characterized by a higher degree of legal reliability and certainty.[56] The current regulatory framework, nevertheless, does not ensure sufficient clarity or a uniform practice with respect to mechanisms of judicial control. In the case of Tchitchinadze v. Georgia, the European Court of Human Rights observed that the quashing of final and enforceable judgements amounts to an interference with the principle of legal certainty as well as the right to a fair trial and the peaceful enjoyment of possessions. According to the Court, the review of a final act is permissible only where substantial and compelling grounds exist, since otherwise, the principles of legal stability and the effectiveness of enforcement are placed at risk.[57] As a result, there arises a risk that the enforcement may take place in parallel with the debtor’s defense rights being actually exercised, thus reducing the degree of effectiveness. In the case № BS-377(K-23), the Supreme Court of Georgia reviewed the suspension of enforcement proceedings initiated based on a writ of execution by a notary, as well as the scope of the applicable procedural safeguards. The court emphasized that the repeated suspension of enforcement proceedings should not become a means of unjustifiable delay of the creditor’s claim, particularly where the debtor could fulfil their duties and protect their rights several times. The court also indicated to the fact that the writ of execution issued by the notary is not a document beyond the judicial control. This was further demonstrated by the fact that the court itself amended the writ of execution by reducing both the principal amount of the claim and the amount of the contractual penalty.[58] It is the constitutional obligation of the state to ensure adequate procedural safeguards for each component of the right to a fair trial, both in its formal and substantive dimensions.[59] Accordingly, the existence of a notarial enforcement mechanism is not problematic in itself; rather, the concern lies in the insufficiently defined procedural guarantees governing its application. This is a challenge calling for better normative clarity and the development of a more consistent judicial and enforcement practice. 4. The Enforcement in Georgia of the Notarial Writ of Execution issued Abroad Pursuant to Article 51(a) of the Minsk Convention, the recognition and enforcement in Georgia of enforceable instruments issued by foreign notaries is permissible.[60] Nevertheless, the fact that a consistent judicial practice on this issue has not yet been developed causes the problem of legal predictability.[61] Presumably, the recognition and enforcement of such acts will be carried out by analogy with the rules established for the recognition and enforcement of court judgments, based on the analogy of law. Under Article 58 of the Brussels Ia Regulation, an authentic instrument, including a notarial act, that is enforceable in one EU Member State may be enforced in other Member States without obtaining a separate declaration of enforceability. This facilitates the cross-border enforcement of notarial acts within the European Union.[62] The issue is particularly significant in the context of increasingly transnational private law relations, where the economic interests of the parties are often connected to more than one jurisdiction. In such circumstances, the effective recognition and enforcement of a writ of execution by a foreign notary is directly linked both to the stability of civil commerce and to the effective protection of the creditor’s rights.[63] The absence of proper legislative regulation gives rise to the problem of legal certainty, as the current legislation does not provide a clear definition of procedural standards and the framework of judicial control. This enhances the risk of establishing divergent approaches and may affect the enforcement efficiency and degree of legal trust in the notarial institution.[64] Conclusion The writ of execution issued by the notary public represents an effective instrument for simplified enforcement of the claim in modern private law. The high evidentiary and enforcement force of the notarial act relies on the notary’s institutional neutrality, the function of legislative control, and the obligation of balance of the parties’ interests, which ensures stability of civil relations and security of civil commerce. The Georgian and foreign legal practices examined in the present study have demonstrated that the notarized agreement and the writ of execution issued on its basis facilitate prompt and effective satisfaction of the creditor’s claim, simplification of enforcement proceedings, and reduction of the court’s workload. Furthermore, the legal models of Germany, France, and Spain prove that the institution of the notary performs a significant preventive and enforcement function. The study has also revealed that a writ of execution issued by a notary, in itself, does not contravene the right to a fair trial, as the parties retain the possibility of judicial review and the right to appeal enforcement measures. It is precisely the availability of judicial oversight that constituted the key procedural safeguard ensuring a balance between the simplified enforcement mechanism and the protection of the debtor’s interests. Accordingly, a writ of execution issued by a notary should be regarded not only as a simplified instrument for the enforcement of claims but also as a mechanism that promotes the effective protection of creditors’ interests, the stability of legal relations, and the implementation of preventive justice. Its effective functioning, however, depends significantly on clear and consistent legal regulation. References Scientific literature: Akhalkatsi, E. (2025). The Problem of Enforcement of Notarial Acts (comparative analysis). Journal of Law, 1. <https://doi.org/10.60131/jlaw.1.2025.9276>; Böck, R. (2020). The System of the German Notariat. The Magazine of Comparative Law, 8. [In Georgian]; Bormann, J. (2022). The German Enforceable Notarial Act in Cross-Border Cases, LeXonomica, Vol. 14, No. 1. <https://doi.org/10.18690/lexonomica.14.1.49-72.2022>; Calvo Caravaca, A.-L., Carrascosa González, J. (2020). Power of Attorney Authorised by Foreign Notaries and Purchase of Property located in Spain. Revista de Derecho Internacional Privado, 5179; Dekers, E. (2001). Notarial Practice, Deontology, and Institutional Structures, The Georgian Notariat Magazine, №3-4, September-December, Kuparava, R. (Transl.), Zoidze, O. (Ed.), Tbilisi. [In Georgian]; Dharmawan, N. K. S., Salain, M. S. P. D., Prianatha, I. G. N. B. P. (2025). Harmonization of Notary Honorarium Arrangement Related to the Notarial Deed Authority: Toward Legal Certainty. Law and World, 11(1). <https://doi.org/10.36475/11.1.2>; Faba, J. M. (2017). Sobre la fuerza ejecutiva de la escritura pública y el nuevo sistema de expedición de copias: cuestiones surgidas en la jurisprudencia actual. Revista CESCO de Derecho de Consumo, 20. [In Spanish]; Gogoladze, M., Shamatava, I. (2026). The Evolution of the Georgian Notariat: From the State-controlled Soviet System to Professional Independence and Digital Modernization. European Scientific Journal, 52; Gotua, L. (2009). Enforcement of Foreign Court Judgments and Foreign Arbitral Awards, thesis, Tbilisi. [In Georgian]; Kereselidze, D. (2009). The Most General Systemic Concepts of Private Law, Tbilisi. [In Georgian]; Kharitonashvili, N. (2021). The Notary Law, Tbilisi. [In Georgian]; Knieper, R. (2017). The Economic Relevance of Notarial Authentic Instruments. International Union of Notaries; Kurdadze, S., Kurdadze, G., Khunashvili, N., Chkonia, Z. (2018). Commentary on the Law of Georgia on Enforcement Proceedings, Part I (Articles 1–48). Tbilisi. [In Georgian]; Lapachi, E. (2016). The Impact of the Registration of Rights in Rem over Immovable Property on the Exercise and Protection of Such Rights (Thesis), Tbilisi. [In Georgian]; Makhatadze, N. (2021). Procedural Issues Related to the Issuance of a Notarial Writ of Execution. Journal Justice and Law, 3(71), Tbilisi. [In Georgian]; Malavet, P. A. (1996). Counsel for the Situation: The Latin Notary, a Historical and Comparative Model. Hastings International and Comparative Law Review, 19(3); Mantovani, M. (2019). Notaries and their Debt-collection Writs under the Brussels Ia Regulation: A Difficult Characterisation. Journal of Private International Law, 15(2). <https://doi.org/10.1080/17441048.2019.1645973>; Martínez-Velencoso, L. M. (2017). The Role of the Notary in the Spanish Legal System. European Review of Private Law, 25(4). <https://opo.iisj.net/index.php/sortuz/article/view/2497>; Morandi, E. (2007). The Role of the Notary in Real Estate Conveyancing. Digital Evidence and Electronic Signature Law Review, 4. <https://doi.org/10.14296/DEESLR.V4I0.1795>; Plamesti, M. R., Abustan, A., Miskiah, S. (2025). Strength of Proof of Notarial Deeds in an Agreement. In Proceedings of the 2nd International Conference Changing of Business Law (ICOCLB 2024), Atlantis Press. <https://doi.org/10.2991/978-2-38476-356-6_30>; Rivero Silva, S. (2026). The good (civil law?) notary. Sortuz: Oñati Journal of Emergent Socio-Legal Studies. <https://doi.org/10.35295/sz.iisl.2497>; Rouchaud, A. M. (1998). Conclusions – Workshop No. 2: Writs of execution in the Execution of Court Decisions in Civil Cases. Council of Europe Publishing; Shamatava, I. (2024). 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Max Planck Encyclopedia of European Private Law. <https://max-eup2012.mpipriv.de/index.php/Notary_Public>. Legal acts: CEPEJ. (2009). Guidelines for a Better Implementation of the Existing Council of Europe’s Recommendation on Enforcement, 11Rev2. <https://rm.coe.int/16807473cd>; Civil Code of Georgia, Parliamentary Gazette, No. 31, July 24, 1997. [In Georgian]; Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk Convention), 22 January 1993; Council of Europe. (2010). Consultative Council of European Judges (CCJE). Opinion No. 13 on the Role of Judges in the Enforcement of Judicial Decisions. <https://rm.coe.int/-ccje-13-2010-/168074824c>; Law of Georgia on Enforcement Proceedings, Legislative Herald of Georgia, 13(20), 01.05.1999. [In Georgian]; Law of Georgia on Notariat. Legislative Herald of Georgia, No. 46, 22.12.2009. [In Georgian]; Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels Ia Regulation); Resolution No. 507 of the Government of Georgia of 29 December 2011 on Approving the Amounts of Fees for Notarial Acts and Fees Established for the Chamber of Notaries of Georgia, as well as the Rules for Their Payment and the Timeframes for Service Provision, Legislative Herald of Georgia, 30.12.2011. [In Georgian]. Court decisions: Decision No. 2/22/930 of 28 December 2017 of the Constitutional Court of Georgia in the case Citizen of Georgia Ana Jalaghonia v. Parliament of Georgia, II-12. [In Georgian]; Decision of the Administrative Chamber of the Supreme Court of Georgia in case No. BS-377(K-23), 11 October 2023. [In Georgian]; Decision of the Civil Cases Chamber of the Tbilisi City Court of 31 May 2018 in case No. 2/17482-17. [In Georgian]; ECHR. Judgment (Merits) of the European Court of Human Rights in the case of Tchitchinadze v. Georgia, Application No. 18156/05, 27 May 2010; Judgment No. 3/2/574 of 23 May 2014 of the Constitutional Court of Georgia in the case Citizen of Georgia Giorgi Ugulava v. Parliament of Georgia, II-59. [In Georgian]. Footnotes [1] Kurdadze, S., Kurdadze, G., Khunashvili, N., Chkonia, Z. (2018). Commentary on the Law of Georgia on Enforcement Proceedings, Part I (Articles 1–48). Tbilisi, 7; See: Council of Europe. (2010). Consultative Council of European Judges (CCJE). Opinion No. 13 on the Role of Judges in the Enforcement of Judicial Decisions, para. 16. <https://rm.coe.int/-ccje-13-2010-/168074824c>. [2] Cited in: Taliashvili, T., Shamatava, I. (2020). Recent Evolution of Intellectual Property Enforcement in Georgia. TalTech Journal of European Studies, 10(2), 43. <https://doi.org/10.1515/bjes-2020-0014>. [3] Shamatava, I. (2024). Notarial Registration of a Loan Agreement as an Effective Mechanism for Debt Recovery and the Simplified Enforcement of Matured Claims. Contemporary Law Journal, 1, 14–28. See: Dharmawan, N. K. S., Salain, M. S. P. D., Prianatha, I. G. N. B. P. (2025). Harmonization of Notary Honorarium Arrangement Related to the Notarial Deed Authority: Toward Legal Certainty. Law and World, 11(1), 22–34. <https://doi.org/10.36475/11.1.2>. [4] The existence of a notarial act is intended to ensure legal clarity and guarantees for the parties, as well as to create the best and most reliable evidence in compliance with the applicable legal standards. See: Plamesti, M. R., Abustan, A., Miskiah, S. (2025). Strength of Proof of Notarial Deeds in an Agreement. In Proceedings of the 2nd International Conference Changing of Business Law (ICOCLB 2024), Atlantis Press, 256. <https://doi.org/10.2991/978-2-38476-356-6_30>. [5] Compare: Knieper, R. (2017). The Economic Relevance of Notarial Authentic Instruments. International Union of Notaries, 11: The notarial system is often the subject of criticism by scholars and policymakers in the United Kingdom, as what appears most unusual to the English is the notion that a single notary acts in the interests of both parties. Instead of properly appreciating the specific functions of the notary and his or her public-law status – within the framework of which the notary ensures the protection of both parties’ interests in a cost-effective manner – opinions are expressed in favor of limiting the role of the notariat. [6] Gogoladze, M., Shamatava, I. (2026). The Evolution of the Georgian Notariat: From the State-controlled Soviet System to Professional Independence and Digital Modernization. European Scientific Journal, 52, 495–514. [7] Malavet, P. A. (1996). Counsel for the Situation: The Latin Notary, a Historical and Comparative Model. Hastings International and Comparative Law Review, 19(3), 391. [8] Morandi, E. (2007). The Role of the Notary in Real Estate Conveyancing. Digital Evidence and Electronic Signature Law Review, 4, 28–33. <https://doi.org/10.14296/DEESLR.V4I0.1795>. [9] Dekers, E. (2001). Notarial Practice, Deontology, and Institutional Structures, The Georgian Notariat Magazine, №3-4, September-December, Kuparava, R. (Transl.), Zoidze, O. (Ed.), Tbilisi, 10. [10] Malavet, P. A. (1996). Counsel for the Situation: The Latin Notary, a Historical and Comparative Model. Hastings International and Comparative Law Review, 19(3), 401. [11] Regarding the historic formation of the notary, see Wenckstern, M. (2012). Notary Public. Max Planck Encyclopedia of European Private Law. <https://max-eup2012.mpipriv.de/index.php/Notary_Public> [Accessed: 28.05.2026]. [12] Malavet, P. A. (1996). Counsel for the Situation: The Latin notary, a Historical and Comparative Model. Hastings International and Comparative Law Review, 19(3), 401. [13] Kereselidze, D. (2009). The Most General Systemic Concepts of Private Law, Tbilisi, 300. [14] Böck, R. (2020). The System of the German Notariat. The Magazine of Comparative Law, 8, 1. [15] Morandi, E. (2007). The Role of the Notary in Real Estate Conveyancing. Digital Evidence and Electronic Signature Law Review, 4, 28–33. <https://doi.org/10.14296/DEESLR.V4I0.1795>. [16] Böck, R. (2020). The System of the German Notariat. The Magazine of Comparative Law, 8, 10. [17] Mantovani, M. (2019). Notaries and their Debt-collection Writs under the Brussels Ia Regulation: A Difficult Characterisation. Journal of Private International Law, 15(2), 393–417. <https://doi.org/10.1080/17441048.2019.1645973>. [18] Bormann, J. (2022). The German Enforceable Notarial Act in Cross-Border Cases, LeXonomica, Vol. 14, No. 1, 69. <https://doi.org/10.18690/lexonomica.14.1.49-72.2022> [Accessed: 28.05.2026]. [19] Akhalkatsi, E. (2025). The Problem of Enforcement of Notarial Acts (comparative analysis). Journal of Law, 1, 70. <https://doi.org/10.60131/jlaw.1.2025.9276> [Accessed: 28.05.2026]. [20] Knieper, R. (2017). The Economic Relevance of Notarial Authentic Instruments. International Union of Notaries, 11. [21] Smits, J. M. (2020). Advanced Introduction to Comparative Law. Edward Elgar Publishing. [22] Martínez-Velencoso, L. M. (2017). The Role of the Notary in the Spanish Legal System. European Review of Private Law, 25(4), 679–698. <https://opo.iisj.net/index.php/sortuz/article/view/2497>. [23] Rouchaud, A. M. (1998). Conclusions – Workshop No. 2: Writs of execution in the Execution of Court Decisions in Civil Cases. Council of Europe Publishing, 117. [24] Rivero Silva, S. (2026). The good (civil law?) notary. Sortuz: Oñati Journal of Emergent Socio-Legal Studies, 245–264. <https://doi.org/10.35295/sz.iisl.2497>. [25] Calvo Caravaca, A.-L., Carrascosa González, J. (2020). Power of Attorney Authorised by Foreign Notaries and Purchase of Property located in Spain. Revista de Derecho Internacional Privado, 5179, 11. [26] Gogoladze, M., Shamatava, I. (2026). The Evolution of the Georgian Notariat: From the State-controlled Soviet System to Professional Independence and Digital Modernization. European Scientific Journal, 52, 503. [27] Calvo Caravaca, A.-L., Carrascosa González, J. (2020). Power of Attorney Authorised by Foreign Notaries and Purchase of Property Located in Spain. Revista de Derecho Internacional Privado, 5179, 54–56. [28] Rivero Silva, S., The Good (Civil Law?) Notary, Sortuz: Oñati Journal of Emergent Socio-Legal Studies, Vol. 16, No. 1, 2026, 248–249. <https://doi.org/10.35295/sz.iisl.2497>. [29] Faba, J. M. (2017). Sobre la fuerza ejecutiva de la escritura pública y el nuevo sistema de expedición de copias: cuestiones surgidas en la jurisprudencia actual. Revista CESCO de Derecho de Consumo, 20, 74–81. [30] Rivero Silva, S. (2026). The Good (Civil Law?) Notary, Sortuz: Oñati Journal of Emergent Socio-Legal Studies, 16(1), 248–249. <https://doi.org/10.35295/sz.iisl.2497>. [31] Dharmawan, N. K. S., Salain, M. S. P. D., Prianatha, I. G. N. B. P. (2025). Harmonization of Notary Honorarium Arrangement Related to the Notarial Deed Authority: Toward Legal Certainty. Law and World, 11(1), 22–34. <https://doi.org/10.36475/11.1.2>. [32] Lapachi, E. (2016). The Impact of the Registration of Rights in Rem over Immovable Property on the Exercise and Protection of Such Rights (Thesis), Tbilisi, 160. [33] Sukhitashvili, D. (2012). The Notary Law, Tbilisi, 308. [34] Compare: Kharitonashvili, N. (2021). The Notary Law, Tbilisi, 31. [35] With regards to the cost-effectiveness of the enforcement proceedings, See: Uitdehaag, I., Kurtauli, S. (2013). An Overview of the Enforcement System of Georgia. The Georgian Enforcement System in National and International Contexts, Tbilisi, 130. [36] Gotua, L. (2009). Enforcement of Foreign Court Judgments and Foreign Arbitral Awards, thesis, Tbilisi, 14. [37] Makhatadze, N. (2021). Procedural Issues Related to the Issuance of a Notarial Writ of Execution. Journal Justice and Law, 3(71), Tbilisi, 58–72. [38] Shamatava, I. (2024). The Standard of Proportionate Protection of the Parties’ Rights and Obligations in a Loan Agreement (Monograph). Bona Causa Publishing House and Caucasus University, 128. [39] Resolution No. 507 of the Government of Georgia of 29 December 2011 on Approving the Amounts of Fees for Notarial Acts and Fees Established for the Chamber of Notaries of Georgia, as well as the Rules for Their Payment and the Timeframes for Service Provision, Legislative Herald of Georgia, 30.12.2011. [40] Law of Georgia on Notariat. Legislative Herald of Georgia, No. 46, 22.12.2009, Article 38(5). [41] For a detailed discussion on monetary loan obligations, see: Shamathava, I. (2024). The Standard of Proportionate Protection of the Parties’ Rights and Obligations in a Loan Agreement (Monograph), Bona Causa Publishing House and Caucasus University, 121–143. [42] Civil Code of Georgia, Article 300, Point 3. [43] Law of Georgia on Enforcement Proceedings, Legislative Herald of Georgia, 13(20), 01.05.1999, Article 21. [44] Ibid., point 3¹. [45] Law of Georgia on Notary. Legislative Herald of Georgia, 46, 22.12.2009, Article. 42, 04.12.2009, Article 40. [46] CEPEJ. (2009). Guidelines for a Better Implementation of the Existing Council of Europe’s Recommendation on Enforcement, 11Rev2, para. 1. <https://rm.coe.int/16807473cd>. [47] Decision No. 2/22/930 of 28 December 2017 of the Constitutional Court of Georgia in the case Citizen of Georgia Ana Jalaghonia v. Parliament of Georgia, II-12. [48] The Law of Georgia on Notary. Legislative Herald of Georgia, 46, 22.12.2009, Article 42, 04.12.2009, Article 40, point 4. [49] CEPEJ. (2009). Guidelines for a Better Implementation of the Existing Council of Europe’s Recommendation on Enforcement, 11Rev2, para. 1. <https://rm.coe.int/16807473cd>. [50] The Law of Georgia on Enforcement Proceedings. Legislative Herald of Georgia, 13(20), 01.05.1999, Article 36. [51] Decision of the Administrative Chamber of the Supreme Court of Georgia in case No. BS-377(K-23), 11 October 2023. [52] CEPEJ. (2009). Guidelines for a Better Implementation of the Existing Council of Europe’s Recommendation on Enforcement, 11Rev2, paras. 33-35. <https://rm.coe.int/16807473cd>. [53] Morandi, E. (2007). The Role of the Notary in Real Estate Conveyancing. Digital Evidence and Electronic Signature Law Review, 4, 33. <https://doi.org/10.14296/DEESLR.V4I0.1795>. [54] See additionally: Lapachi, E. (2016). The Impact of the Registration of Rights in Rem over Immovable Property on the Exercise and Protection of Such Rights (Doctoral dissertation), Tbilisi, 158–159. [55] Morandi, E. (2007). The Role of the Notary in Real Estate Conveyancing. Digital Evidence and Electronic Signature Law Review, 4, 33. <https://doi.org/10.14296/DEESLR.V4I0.1795>. [56] Decision No. 2/22/930 of 28 December 2017 of the Constitutional Court of Georgia in the case Citizen of Georgia Ana Jalaghonia v. Parliament of Georgia, II-12. [57] ECHR. Judgment (Merits) of the European Court of Human Rights in the case of Tchitchinadze v. Georgia, Application No. 18156/05, 27 May 2010. [58] Decision of the Administrative Chamber of the Supreme Court of Georgia in case No. BS-377(K-23), 11 October 2023. See also the Decision of the Civil Cases Chamber of the Tbilisi City Court of 31 May 2018 in case No. 2/17482-17. [59] Judgment No. 3/2/574 of 23 May 2014 of the Constitutional Court of Georgia in the case Citizen of Georgia Giorgi Ugulava v. Parliament of Georgia, II-59. [60] Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Matters (Minsk Convention), 22 January 1993, Article 51(a). [61] Akhalkatsi, E. (2025). The Problem of Enforcement of Notarial Acts: Comparative Analysis. Journal of Law, №1. <https://doi.org/10.60131/jlaw.1.2025.9276>. [62] Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (Brussels Ia Regulation), Art. 58. Cited., Mantovani, M. (2019). Notaries and their Debt-collection Writs Under the Brussels Ia Regulation: A Difficult Characterisation. Journal of Private International Law, 15(2), 393–417. <https://doi.org/10.1080/17441048.2019.1645973>. [63] CEPEJ. (2009). Guidelines for a Better Implementation of the Existing Council of Europe’s Recommendation on Enforcement, 11REV2, paras. 6–7. <https://rm.coe.int/16807473cd>. [64] Ibid., 201–203.
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The Algerian Legal Framework for the Economic Exploitation of Children: International Standards and Prospects for Reform
The phenomenon of child economic exploitation is an alarming global reality, often exacerbated by economic precariousness that forces many families to sacrifice their children’s education for the sake of an additional income. However, this practice exposes a particularly vulnerable population to serious risks, affecting their physical, mental, and social development. To address this challenge, the international community has developed a legal framework aimed at guaranteeing the protection of children. Major instruments such as the United Nations Convention on the Rights of the Child (UNCRC) and the conventions of the International Labour Organization (ILO), particularly Convention No. 182 on the Worst Forms of Child Labour, have established universal standards. These texts serve as the foundation for national legislation, obliging states to implement concrete measures to prohibit dangerous child labor, set a minimum age for employment, and sanction offenders. Thus, this study aims to explore in depth the legal protection framework for children against economic exploitation. It will not be limited to cataloging international and national instruments but will also analyze how these laws are applied, the challenges encountered in their implementation, and the persistent gaps. The objective is to highlight the complexity of the phenomenon and to emphasize the need for constant vigilance to ensure the dignity and fundamental rights of every child. Keywords: Child, child rights, child labour, legal protection, economic exploitation. Introduction The protection of the child is a fundamental component of legal systems, critical for ensuring both individual development and societal stability.[1] In legal terms, childhood is a specific developmental phase requiring a distinct status to ensure physical integrity and social integration. Despite extensive international and national legal frameworks, economic exploitation remains a persistent challenge, particularly child labour at an early age.[2] In response, international bodies, notably the International Labour Organization (ILO), have established standards to legislate against these practices.[3] Algeria, as a signatory to major international conventions, has transposed these norms into its domestic law, primarily through Law No. 90-11 on labour relations and Law No. 15-12 on child protection. These instruments establish a framework aimed at regulating the minimum age for employment and prohibiting hazardous work. The relevance of this issue in Algeria is underscored by the ongoing monitoring of labour standards. Official data from the General Labor Inspectorate indicates that between the beginning of 2024 and May 31, 2024, inspections of 28,952 employers (covering 372,327 workers) identified child labour in only 0.001% of cases involving children under 16.[4] While these cases were referred to judicial authorities and no “worst forms” of child labor were recorded in this period,[5] the severity of the issue lies in the potential for undeclared exploitation in the informal sector, which often escapes official statistics. Despite this legislative framework, significant challenges persist regarding the practical implementation of Laws 90-11 and 15-12. A critical research gap exists, as few recent studies analyze the specific procedural shortcomings and institutional constraints that hinder full enforcement in the current socio-economic context. Consequently, this study addresses the following unanswered questions: What are the specific forms of legal protection granted to children against economic exploitation in Algeria, and what systemic challenges prevent these laws from reaching total effectiveness? This research aims to fill this gap by identifying the disjunction between statutory goals and the reality of enforcement. Methodology This research employs a qualitative and doctrinal legal analysis. It examines the Algerian legislative framework, specifically Law No. 90-11 and Law No. 15-12, in comparative perspective with international conventions, such as the ILO Conventions No. 138 and 182. The study relies on a systematic review of legal texts, official reports (notably the 2024 Labor Inspectorate data), and available institutional data to assess the gap between statutory provisions and their practical enforcement. This methodology allows for a critical evaluation of the effectiveness of the current legal protections and identifies the necessary legislative reforms. Findings and Discussion 1. International Protection of the Child from Economic Exploitation In this section, we address the role of the United Nations in protecting the child from economic exploitation (First Requirement), in addition to the protection provided by the International Labour Organization (Second Requirement). 1.1. The role of the United Nations in protecting the child from economic exploitation It is worth noting in this regard that the League of Nations was the first to adopt the Geneva Declaration of the Rights of the Child in 1924,[6] in which it called for the necessity of protecting the rights of the child, including protection from exploitation, particularly economic exploitation.[7] After the League of Nations became the United Nations, the latter sought to protect children’s rights through numerous efforts, including the Declaration of the Rights of the Child of 1959 (First Branch) and the Convention on the Rights of the Child of 1989 (Second Branch). 1.1.1. The 1959 Declaration of the Rights of the Child[8] This declaration contained ten principles affirming that the child enjoys a set of rights in various fields, and it called upon all countries to recognize them.[9] Perhaps the most notable of these rights is stated in Principle Nine, which reads as follows: “The child shall enjoy protection from all forms of neglect, cruelty, and exploitation. Trafficking in children in any form shall be prohibited. A child shall not be employed before reaching the appropriate minimum age, and in all cases, he shall not be made or allowed to work in any occupation or trade that may harm his health, education, or hinder his physical, mental, or moral development”. By examining this principle, we can see that the declaration provides the child with essential protection, particularly safeguarding them from all forms of exploitation, in addition to prohibiting their employment or coercion into work before reaching the appropriate minimum age.[10] 1.1.2. The 1989 Convention on the Rights of the Child[11] This convention is considered a major achievement in the field of human rights, as it recognized the role of children as active participants in social, economic, political, civil, and cultural spheres. A total of 196 states ratified the convention,[12] including Algeria.[13] It defined a child as every human being below the age of eighteen, unless, under the applicable law, they attain the age of majority earlier.[14] The convention urged the state parties to protect the child from all forms of violence, injury, or physical and mental abuse, as well as neglect, negligent treatment, maltreatment, or exploitation…[15] It also emphasized the necessity for state parties to recognize the child’s right to protection from economic exploitation and from performing any work likely to be hazardous,[16] interfere with the child’s education, or be harmful to their health or physical, mental, spiritual, moral, or social development. The same convention required state parties, in particular, to: Set a minimum age or minimum ages for admission to employment. Establish an appropriate system for regulating working hours and conditions. Impose suitable penalties or other sanctions to ensure the effective enforcement of this article.[17] From examining these two articles, it is clear that the 1989 Convention on the Rights of the Child paid great attention to the child, protecting them not only from economic exploitation but also from engaging in dangerous work that could hinder their education or harm their health.[18] This is because, at a young age, a child needs education and mental development, and only after reaching a certain age can they enter the world of work. 1.2. The International Labour Organization and its role in protecting the child from economic exploitation Since its establishment in 1919, the International Labour Organization has made significant efforts to eliminate the economic exploitation of children. Among the measures it has adopted to achieve its objectives is setting a minimum age for child employment (First Subsection) in addition to prohibiting the employment of children in hazardous work (Second Subsection). 1.2.1. Minimum Age Convention No. 138[19] This convention set the minimum age for employment at 18 years for admission to all types of work that may endanger the health, safety, or morals of young persons as a general rule.[20] As an exception, national laws may allow work starting from the age of 16, provided that the health, safety, and morals of young persons are fully protected, and they receive appropriate training for the intended field of activity. The convention also established 15 years as the minimum age for employment, on the condition that this age is not lower than the age of completion of compulsory (primary) education.[21] The aim behind this is to ensure that the child fully benefits from their childhood and is not pushed into the world of work at an early age due to their young age and vulnerability. However, poor families often rely on their children’s work to meet their needs. In addition, the migration of the workforce abroad often leads to child labour as a means of replacement. The difficulty of schooling in remote rural areas, along with poor quality education and its high cost, are other factors that encourage the employment of children.[22] 1.2.2. Convention No. 182 on the Prohibition of the Worst Forms of Child Labour[23] Child labour has been a familiar phenomenon since ancient times and is part of traditional culture, especially in Arab families. However, a child helping their family with household tasks, farm work, or herding is entirely different from the present-day practice of employing children in agriculture, factories, and workshops. When a child works under the supervision of their parents, they are not overburdened, they have the freedom to stop whenever they wish, and they receive full care and protection from their parents, who remain attentive and concerned for their well-being while they assist in such tasks. However, new forms of child labour have emerged, such as exploitation in factories, agricultural work, and other activities that pose a danger to a child’s health and morals. They are employed in tasks that are unsuitable for their age and incompatible with their physical and mental abilities, violating their most basic rights to education, development, and rest. To combat this phenomenon, and after setting the minimum age for employment through Convention No. 138, the International Labour Organization saw an urgent need to adopt new instruments aimed at prohibiting and eliminating the worst forms of child labour. This led to the adoption of Convention No. 182.[24] This convention called on the member states that ratified it to take immediate and effective measures without delay to prohibit and eliminate the worst forms of child labour.[25] Given the severity of these types of work on the child’s health, the convention defined the forms of such labour through four points: Slavery or practices similar to slavery, such as the sale and trafficking of children. Using, employing, or exposing the child to prostitution, the production of pornographic materials, or performing pornographic shows. Using, employing, or exposing the child to engage in illegal activities, especially drug production, as defined in relevant international treaties and trafficking. Work that, by its nature or the circumstances in which it is performed, is likely to harm the health, safety, or moral behaviour of children.[26] In addition to the aforementioned conventions, the International Labour Organization has adopted several programs to eliminate child labour, the most important of which are: 1.2.2.1. The International Program on the Elimination of Child Labour Research, launched in 1979 It helped provide a clear picture of this phenomenon by counting, describing, and analysing child labour across various economic activities. 1.2.2.2. The International Program to Eliminate Child Labor (IPEC) In 1990, the German government made a significant contribution to establishing an unprecedented technical program within the International Labour Organization concerning child labour. This step helped lay the foundation for launching a new and effective long-term campaign against child labour by the International Labour Organization. Since then, the program has worked to develop its experience into an effective global operation spanning five continents and nearly 90 countries. The program’s strategy is based on the core International Labour Organization conventions, with a focus on eliminating the worst forms of child labour.[27] In addition, the organization has issued numerous reports and protocols aimed at limiting exploitation in the workplace and ensuring workers’ rights. One such report, published in 2013 under the title “Progress Towards the Elimination of Child Labour”, noted that the number of working children worldwide had decreased by one third since 2000, dropping from about 246 million to 168 million by the time of the report.[28] At that time, the organization’s goal was to eliminate the worst forms of child labour by 2016. The organization also adopted a new protocol in 2014 to address modern forms of forced labour, recognizing it as a violation of human rights and dignity. Millions of men, women, and children fall under this type of labour. This protocol was adopted with the support of government representatives, employers, and workers at the International Labour Conference, with 437 votes in favour, 8 against, and 27 abstentions. The goal of the protocol was to update the International Labour Organization’s Convention No. 29 of 1930 concerning forced labour.[29] 2. Legal protection of children from economic exploitation under Algerian legislation Given Algeria’s ratification of the aforementioned international treaties on the protection of children from economic exploitation, the Algerian legislator needed to incorporate the provisions of these agreements into a dedicated legal framework. This was achieved through the promulgation of the Algerian Labour Relations Law,[30] which established a legal framework governing the employment of children, prohibiting their employment due to their young age and the immaturity of their physical and mental capacities, to safeguard their health (Requirement One). In addition, a specific Child Protection Law[31] was issued to provide them with comprehensive protection (Requirement Two). 2.1. The role of the labor relations law in protecting the child from economic exploitation The Labor Relations Law has established a set of provisions to protect children from economic exploitation. These include setting a minimum age for employment (First Subsection), requiring a work permit for employing a child (Second Subsection), prohibiting the child’s employment in hazardous work (Third Subsection), and banning nighttime employment of children (Fourth Subsection). 2.1.1. The minimum employment age in Algerian legislation Humanitarian considerations require prohibiting the employment of children who have not yet reached the stage where they are capable of working, to protect their youth and preserve their health. Therefore, determining a legal minimum age for child labour was one of the main reasons that prompted the legislator to intervene in labour matters.[32] Article 15 of the Labor Relations Law provides: “In no case may the minimum age for employment be less than sixteen (16) years, except in situations that fall within the framework of apprenticeship contracts, which are established in accordance with the applicable legislation and regulations...”.[33] It is clear from this article that the Algerian legislator was explicit on this matter and prohibited the employment of persons under the age of 16. This is nothing but a reflection of the provisions of the Minimum Age Convention No. 138 mentioned earlier. The same approach was adopted by the French legislator.[34] Some comparative legislations, however, differ in determining the minimum working age. The Egyptian legislator set it at 15 years,[35] and this age is the same for both males and females. The Saudi legislator also set the minimum age at 15 years[36] for acceptance into any type of work. The Algerian legislator has also established criminal protection for the child against employment before the legal age. Any employer in violation is subject to a fine ranging from 1,000 to 2,000 Algerian dinars,[37] and in the case of a repeat offense, a prison sentence ranging from 15 days to two months may be imposed, without prejudice to the fine, which is doubled. It is worth noting that these penalties are very minimal and cannot achieve the desired deterrent effect. It should be noted that Article 15, mentioned earlier, allows the reduction of the minimum age of 16 in cases that fall within the framework of apprenticeship contracts. An apprenticeship contract is one in which the employing institution undertakes to provide the apprentice with systematic and complete professional training, in return for which the apprentice commits to working for the institution throughout the duration of the contract and receives a pre-agreed wage. The legal age for apprenticeship is 15, meaning that the minimum age for entering work is reduced from 16 to 15 in the case of apprenticeship.[38] 2.1.2. The requirement to obtain a permit for employing a child Obtaining a permit is one of the safeguards established by the Algerian legislator in the Labor Relations Law to protect children from economic exploitation. Article 15 of the Labor Relations Law explicitly states that a minor may not be employed except based on a permit from their legal guardian.[39] It would have been preferable if the legislator had used the term “the child’s legal representative”, which encompasses a wider range of meanings, such as a parent, guardian, custodian, court-appointed administrator, or caregiver, as is the case in Law No. 15-12 on Child Protection.[40] Although a person who has reached the age of 16 is allowed to enter into employment contracts, the Algerian legislator still considers them legally incapacitated, and their consent is not deemed fully valid unless accompanied by the approval of their legal guardian, as they have not yet reached the age of majority, which is set at 19. For this reason, they are referred to as minors.[41] As for the permit, it serves as a means to protect the child, and without it, the contract is considered absolutely null and void. The legislator did not specify the form of the permit, but in light of the spirit of the legal texts, it cannot be oral; it must be in writing. Since the legislator did not stipulate a writing requirement or specify the information the permit must contain, the permit should be attached to the apprenticeship contract, as the legislator requires that such contracts be in written form. Therefore, the contract may include a clause or a dedicated section indicating the existence of a prior permit from the child’s parent or legal representative. Once the contract is signed, this signature serves as acknowledgment of the permit by all three parties: the parent, the child, and the employer.[42] 2.1.3. Prohibition of employing a minor in hazardous work From an examination of Article 15 of the Labor Relations Law, it is clear that the Algerian legislator prohibits employing minors in hazardous work or in activities lacking proper hygiene, as well as those that could harm their health or undermine their morals. This includes dangerous occupations such as working on high-rise buildings, in mines, in the manufacturing of weapons or explosives, or in chemical plants. It also includes activities that are unhygienic, such as garbage removal, handling solid, liquid, or chemical waste, and other similar tasks. Additionally, physically exhausting or harmful labour, such as excavation or prolonged work hours, is prohibited, as is work that infringes on morals, such as employment in bars or casinos.[43] In the event of a violation, the employer is subject to criminal liability in the form of a monetary fine ranging from 2,000 to 4,000 DZD, applied each time the offense is recorded. It is also worth noting that these penalties are very minimal compared to the type of violation. 2.1.4. Prohibition of night work for children The Labor Relations Law does not limit the protection of a child’s health to setting a minimum age for employment and prohibiting work in hazardous occupations only. Some of its provisions also require raising this minimum age beyond 16 years in certain circumstances under which a minor may work. Therefore, the Labor Relations Law prohibits employing workers of either gender who are under the full age of 19 years in any form of night work. Night work is defined as any work carried out between 9:00 p.m. and 5:00 a.m.[44] The legislature considered this a matter of public order, which means no agreement may be made in violation of it. Anyone who breaches this provision is subject to criminal penalties.[45] It is noteworthy that this article offers children stronger protection than that provided under international standards, as it raises the age limit for the prohibition to 19 years instead of 18. This prohibition applies equally to both genders without distinction or exception. In addition to prohibiting the employment of minors at night if they are under 19 years of age, there are other legislations, such as those of Egypt, Kuwait, and France, which set a maximum working time for minors that must not exceed 6 hours per day. This period must include one or more breaks totalling no less than one hour per day, and no work period may exceed 4 consecutive hours.[46] 2.2. Law No. 15-12 and its role in protecting children from economic exploitation Law No. 15-12 introduced new concepts, defining a child as any person who has not reached the full age of 18. It also defined a “child in danger” as one whose health, morals, education, or security are in danger or at risk, whose living conditions or behaviour could potentially endanger his future, or who is in an environment that poses a threat to his physical, psychological, or educational well-being. In addition, the law provided, by way of example but not limitation, several situations that place a child in danger, among them economic exploitation, particularly by employing the child or assigning work that deprives them of continuing their education or that could harm their physical health, safety, and/or moral integrity.[47] Law No. 15-12 sought to protect children in danger, including those who are economically exploited, by establishing new rules and mechanisms such as social protection (First Subsection) and judicial protection (Second Subsection). 2.2.1. Social protection of the child from economic exploitation Social protection of the child from economic exploitation is manifested in the National Body for the Protection and Promotion of Childhood (First) and social protection at the local level (Second). 2.2.1.1. The National Body for the Protection and Promotion of Childhood The National Body for the Protection and Promotion of Childhood is headed by the National Commissioner for Child Protection and is tasked with ensuring the safeguarding and advancement of children’s rights[48]. It enjoys legal personality and financial independence, with the state providing all necessary material and human resources for the body to carry out its duties. The National Commissioner for Child Protection is responsible for promoting children’s rights, particularly through: Developing national and local programs for the protection and promotion of children’s rights, in coordination with various administrations, institutions, public bodies, and individuals responsible for child care, along with their periodic evaluation. Monitoring field activities directly related to child protection and coordinating among the various stakeholders. Carrying out awareness, information, and communication initiatives. Encouraging research and education in the field of children’s rights, to understand the economic, social, and/or cultural causes of child neglect, abuse, and exploitation, and developing appropriate policies for their protection. Providing opinions on existing national legislation related to children’s rights with a view to its improvement. Promoting the participation of civil society organizations in the monitoring and advancement of children’s rights. Establishing an information system on the situation of children in Algeria, in coordination with the relevant administrations and bodies.[49] It is clear that the legislator has granted the Commissioner significant powers in the field of protecting children’s rights in general, and in safeguarding them from economic exploitation in particular. The legislator has also endowed the Commissioner with another important function, namely the ability to receive reports concerning violations of children’s rights from any child, their legal representative, or any natural or legal person. The Commissioner may also intervene on their own initiative to assist children in danger or in cases where the best interests of the child are at risk. Such reports are forwarded to the territorially competent Open Environment Service for investigation and the taking of appropriate measures. Reports that may involve criminal offenses are referred to the Minister of Justice, who in turn informs the competent Public Prosecutor with a view to initiating public proceedings when necessary.[50] The Commission may directly notify the juvenile judge in only 1 specific situation: when there is an imminent danger threatening the child that requires removing them from their family[51], as is the case with economic exploitation. However, it would have been preferable to grant the Commissioner and the Commission as a whole more independence in their relationship with the judiciary, as they are not authorized to forward reports directly to the Public Prosecutor but are instead required to notify the Minister of Justice. 2.2.1.2.Social protection at the local level Social protection for children at the local level is carried out by open-environment services in coordination with various public bodies, institutions, and individuals responsible for childcare. One such service is established in each wilaya; however, in wilayas with large population density, multiple services may be created. Open-environment services monitor the situation of children at risk and assist their families. They may be notified by the child and/or the child’s legal representative, the judiciary, the wali, the president of the communal popular council, any public or private association or body active in the field of child protection, social workers, educators, teachers, doctors, or any other natural or legal person about anything that may pose a danger to the child. They may also intervene on their own initiative. These services verify the actual existence of the risk by conducting social inquiries, visiting the child’s location, and listening to both the child and their legal representative. In such cases, they take the following measures: If there is no danger, the child and their legal representative are informed of this. If the presence of danger is confirmed, the child’s legal representative is contacted to reach an agreement on the most appropriate measure to remove the danger from the child. Such measures may include: Requiring the family to take the necessary steps to remove the danger from the child within deadlines set by the open-environment services. Providing the necessary assistance to the family in coordination with the bodies responsible for social protection. Notifying the wali or the president of the competent communal popular council, or any social body, to ensure the child’s social care. Taking the necessary precautions to prevent the child from coming into contact with anyone who might threaten their physical or moral health. Referring the matter to the competent juvenile judge in cases of imminent danger or in situations where it is impossible to keep the child in their family, particularly if the child has been the victim of a crime committed by their legal representative. The legislator has established criminal penalties consisting of a fine ranging from 30,000 to 60,000 Algerian dinars for anyone who prevents the National Commissioner or the open-environment services from carrying out their duties or hinders the proper conduct of the investigations and inquiries they perform. In case of a repeat offense, the penalty is imprisonment from two to six (6) months and a fine ranging from 60,000 to 120,000 Algerian dinars.[52] 2.2.2. Judicial protection of the child from economic exploitation The juvenile judge is competent to examine petitions submitted by the child, their legal representative, the public prosecutor, the wali (governor), the president of the People’s Communal Assembly in the child’s place of residence, the open-environment services, or associations and public bodies concerned with childhood matters.[53] The juvenile judge may also intervene on his or her own initiative. The juvenile judge may take final judicial measures regarding the child, either during the investigation or after it. These measures can be divided into protection measures (first) and placement measures (second). 2.2.2.1. Protection measures These measures consist of the following: Keeping the child within their family: This is the most suitable measure as it keeps the minor in their family environment, provided that this environment does not pose a danger to them. Handing the child over to their father or mother who does not exercise custody over them, unless a court ruling has revoked custody. In this case, the juvenile judge verifies whether custody has been revoked or not. Handing the child over to one of their relatives: This applies if the minor’s parents are absent or if their presence poses a danger to them. Handing the child over to a trustworthy person or family: Here, the judge has discretionary power to determine whether the person or family is trustworthy or not.[54] The judge may also assign the open environment services to monitor the child in their family, and/or school, and/or professional environment. It should be noted that these measures might be temporary, in which case they must not exceed six (6) months, or non-temporary, determined for a period of two (2) years, renewable. In all cases, they must not exceed the date on which the child reaches the age of criminal majority; however, the juvenile judge may, when necessary, extend this protection until the age of twenty-one (21) years.[55] 2.2.2.2. Placement measures The juvenile judge may order the temporary placement of the child in: A specialized centre for the protection of children in danger. A service in charge of assisting children. A health or psychiatric institution, if the child requires medical or psychological care. The duration of these measures may not exceed six (6) months. The juvenile judge may also order the placement of the child for a period of two (2) years, renewable, in: A specialized centre for the protection of children in danger. A service in charge of assisting children. In this case, the same rule previously mentioned regarding non-temporary measures applies. It should be noted that the orders issued by the juvenile judge concerning protection measures and non-temporary placement measures are not subject to any means of appeal. However, the legislator has left the door open by allowing the juvenile judge to modify or revoke the measure ordered, based on a request from the child, their legal representative, the public prosecutor, or on the judge’s own initiative.[56] Conclusion This study analyzed the effectiveness of the Algerian legal framework in protecting children from economic exploitation, contrasting national provisions with international standards. We conclude that despite Algeria’s formal integration of its obligations through Laws No. 90-11 and No. 15-12, the protection remains largely insufficient in practice. The novelty of this research lies in the identification of specific, systemic weaknesses within the Algerian enforcement mechanism, often overlooked by previous literature. It highlights a critical disjunction between legislative goals and practical reality. Key findings and practical implications Our analysis reveals several critical shortcomings that hinder the full effectiveness of child protection laws: Insufficient Penalties: The current sanctions are minimal, failing to provide the necessary deterrence against perpetrators. Procedural Ambiguity: A lack of clear regulatory guidelines regarding employment permits for minors creates legal loopholes. Institutional Constraints: Bureaucratic hurdles limit the autonomy of the National Body for the Protection and Promotion of Childhood and the National Commissioner, as they cannot directly notify the Public Prosecutor. Based on these findings, this study proposes actionable policy recommendations. The Algerian legislator should significantly increase penalties for child labour offenses and clarify procedural guidelines. Furthermore, amending Law No. 15-12 to empower national protection bodies with direct access to the judiciary is essential to ensure swift and effective child protection, thereby achieving real, actionable changes in the fight against economic exploitation. References Scholarly literature: Adams, C., Pente, P., Lemermeyer, G., Rockwell, G. (2023). Ethical principles for artificial intelligence in K-12 education. Comput. Educ. Artif. Intell., 4. https://doi.org/10.1016/j.caeai.2023.100131 Al-Mulla, M. S., Barafi, J. (2024). The legality of vaccination in accordance with international and national standards. International Journal of Public Law and Policy, 10(4); Ali, B. (2023). Access to Justice for Children: Challenges and the Way Forward. In Human Rights and Legal Services for Children and Youth: Global Perspectives (pp. 13-40). Singapore: Springer Nature Singapore. https://doi.org/10.1007/978-981-99-5551-0_2 Apakhayev, N., Adilova, K., Bugybay, D., Toktybaev, A., Kopbayev, D. (2024). The problem of protecting the rights and legitimate interests of the child in the family and outside it. Danube, 15(3). https://doi.org/10.2478/danb-2024-0013 Bakhda, M. (2014). Legal Protection of Minor Workers in Algerian Legislation. Law Journal, Institute of Legal and Administrative Sciences, University Center – Relizane, (4); Bakhda, M. (2021). Legislative Gaps in Regulating Minor Labour in Algeria. Journal of Labour and Employment Law, Faculty of Law and Political Science, Abdelhamid Ben Badis University – Mostaganem, (3); Barkat, A. (2024). Child Labor in Algerian society - according to a realistic approach. The Comprehensive Journal of Psychological Studies and Educational Sciences, 9(2); Canosa, A., Graham, A., Simmons, C. (2022). Progressing children’s rights and participation: Utilising rights‐informed resources to guide policy and practice. Australian Journal of Social Issues, 57(3). https://doi.org/10.1002/ajs4.202 Carrillo, D. T. K. (2023). The International Labour Organisation and Freedom of Religious Belief. In: Paladini, L., Iglesias Vázquez, M.d.Á. (eds). Protection and Promotion of Freedom of Religions and Beliefs in the European Context. Springer, Cham. DOI: https://doi.org/10.1007/978-3-031-34503-6_15 Daly, A., Stern, R. T., Leviner, P. (2022). UN Convention on the Rights of the Child, Article 2 and Discrimination on the basis of Childhood: The crc Paradox?. Nordic Journal of International Law, 91(3). https://doi.org/10.1163/15718107-91030007 Donnelly, P. (2024). Child labour in high performance and professional sport: The struggle for children’s rights. Annals of Leisure Research, 27(3). https://doi.org/10.1080/11745398.2023.2232056 Effah, K. O. (2025). Deconstructing the Factors Engendering Child Labour in Ghana: A Legal Approach. The International Journal of Children’s Rights, 33(2). https://doi.org/10.1163/15718182-33020005 Food and Agriculture Organization of the United Nations, (2020). Manual for monitoring and evaluating child labour in agriculture. Measuring the impacts of agricultural and food security programmes on child labour in family farming, Rome; Gangwar, S. (2022). Minors’ contracts in the digital age. Liverpool Law Review, 43(2), 237-261. https://doi.org/10.1007/s10991-022-09298-3 Gerdts-Andresen, T., Andersen, M. V. S., Hansen, H. A. (2024). The child’s right to family life when living in public care: How to facilitate contact that preserves, strengthens, and develops family ties. Children and Youth Services Review, 159. https://doi.org/10.1016/j.childyouth.2024.107495 Haitham, H, A-M., (2008). Al-Muntaqa fi SharhQanun Al-Amal: Comparative Study with Civil Law. 1st ed., Dar Al-Hamed Publishing and Distribution, Amman, Jordan; Hammas, H. (2014-2015). Criminal protection of the child victim: comparative study. PhD thesis in Public Law, Faculty of Law and Political Science, University Abou Bekr Belkaid – Tlemcen; Harmon, R. (2023). Law and Orders. Columbia Law Review, 123(4). <https://www.jstor.org/stable/27218396>; Hassan, O., Abd E. S. A. H. (2018). International Administrative Justice in the International Labour Organization: A Comparative Study. Arab Center for Scientific Studies and Research for Publishing and Distribution, Cairo, Egypt; Khogali, H. O., Mekid, S. (2023). The blended future of automation and AI: Examining some long-term societal and ethical impact features. Technology in Society, 73, 102232; Koliev, F., Lebovic, J. H. (2022). Shaming into compliance? Country reporting of convention adherence to the International Labour Organization. International Interactions, 48(2). https://doi.org/10.1080/03050629.2021.1983567 Koski, A., Mangat, S., Wright, D. (2023). The evolution of child marriage as a human rights concern. Human Rights Review, 24(4). https://doi.org/10.1007/s12142-023-00707-2 Kurniasi, N. F., Sumardi, J., Sakharina, I. K. (2022). Elimination of Violence Against Children During the Covid-19 Pandemic based on the United Nations Convention on the Rights of the Child (UNCRC 1989). Khazanah Hukum, 4(2); Lafarre, A. (2023). The proposed Corporate Sustainability Due Diligence Directive: corporate liability design for social harms. European Business Law Review, 34(2). https://doi.org/10.54648/eulr2023017 Lerouge, L., Trujillo Pons, F. (2022). Contribution to the study on the ‘right to disconnect’from work. Are France and Spain examples for other countries and EU law?. European labour law journal, 13(3). https://doi.org/10.1177/20319525221105102 Mačernytė Panomariovienė, I., Wrocławska, T. (2025). Employment of Adolescents and Children: Minimum Working Age in Lithuanian and Polish Law. In: Limantė, A., Vaičiūnienė, R. (eds.). Children’s Rights in Central and Eastern Europe. European Union and its Neighbours in a Globalized World, Vol. 29. Springer, Cham. https://doi.org/10.1007/978-3-032-07092-0_6 McCann, D., Stewart, A. (2024). Quality, formality and the evolution of international labour law: the new ILO quality apprenticeships standard. Industrial Law Journal, 53(4). https://doi.org/10.1093/indlaw/dwae012 Meinck, F., Franchino-Olsen, H., Hafstad, G. S., Jud, A., Liel, C., Nikolaidis, G., Græsholt-Knudsen, T. (2025). Who gets to decide when children participate? Considering the complexities of consent and gatekeeping in violence research. Child Abuse & Neglect, 169. https://doi.org/10.1016/j.chia-bu.2025.107679 Montà, C. C., Bianchi, D., Edling, S., Biffi, E. (2025). Motivations for paying regard to children’s right in relation to democracy and education: An analysis of Swedish and Italian policy investigations. European Educational Research Journal, 24(4). https://doi.org/10.1177/14749041251314098 Politakis, G. (2023). The recognition of occupational safety and health as a fundamental principle and right at work. International & Comparative Law Quarterly, 72(1). https://doi.org/10.1017/S0020589322000446 Sarkar, G., Shukla, S. K. (2024). Bi-directional exploitation of human trafficking victims: Both targets and perpetrators in cybercrime. Journal of Human Trafficking. https://doi.org/10.1080/23322705.2024.2353015 Shpytalenko, G., Havrik, R., Vatras, V., Sabluk, S., Andrukhiv, O. (2024). Safeguarding children’s rights through international legal frameworks. Multidisciplinary Science Journal. https://10.31893/multiscience.2024ss0735 Skinner, G. C., Bywaters, P. W., Kennedy, E. (2023). A review of the relationship between poverty and child abuse and neglect: Insights from scoping reviews, systematic reviews and meta‐analyses. Child Abuse Review, 32(2). https://doi.org/10.1002/car.2795 Normative acts: Convention on the Rights of the Child. 20 November 1989. Adopted under UN General Assembly Resolution 44/25. Entered into force 2 September 1990 pursuant to Article 49; Decree No. 16-334, dated December 19, 2016, establishes the conditions and procedures for the organization and operation of the National Authority for the Protection and Promotion of Childhood in Algeria, Official Gazette, No.75, 21 December 2016; Decree No. 2000-387 dated 28 November 2000, Official Gazette, No. 73, issued 3 December 2000; Decree No. 83-518 dated 3 September 1983, Official Gazette, No. 37, issued 6 September 1983; Egyptian Child Law No. 12 of 1996, issued 25 March 1996, Official Gazette No. 13, amended by Law No. 126 of 2008, issued 15 June 2008, Official Gazette No. 24 (Republished), issued 15 June 2008; Law No. 15-12 dated 15 July 2015 relating to Child Protection, Official Gazette, No. 39, issued 19 July 2015; Law No. 90-11 dated 21 April 1990 relating to Labour Relations, Official Gazette, No. 17, issued 25 April 1990; Ordonnance n° 2001-174 of 22 February 2001 regarding the transposition of Directive 94/33/CE of the Council of 22 June 1994 on the Protection of Young People at Work, Official Gazette, No. 47, 24 February 2001; Presidential Decree No. 92-461 dated 19 December 1992, including interpretative declarations, Official Gazette, No. 91, issued 23 December 1992; Royal Decree No. M/51 dated 27 September 2005, including the Labour System, Umm Al-Qura, No. 4068, issued 28 October 2005; The Declaration of the Rights of the Child. 20 November 1959. Adopted under UN General Assembly Resolution No. 1386; The General Conference of the ILO adopted Convention No. 182 on 17 June 1999. Supplementary material: International Programme on the Elimination of Child Labour (IPEC). Programme definition and operation. <https://www.ilo.org/wcmsp5/groups/public/---arabstates/---ro-beirut/documents/genericdocument/wcms_210595.pdf>. Footnotes [1] Apakhayev, N., Adilova, K., Bugybay, D., Toktybaev, A., Kopbayev, D. (2024). The problem of protecting the rights and legitimate interests of the child in the family and outside it. Danube, 15(3), 221-236. DOI: <10.2478/danb-2024-0013>. [2] Sarkar, G., Shukla, S. K. (2024). Bi-directional exploitation of human trafficking victims: Both targets and perpetrators in cybercrime. Journal of Human Trafficking, 1-22. DOI: <10.1080/23322705.2024.2353015>. [3] Carrillo, D. T. K. (2023). The International Labour Organisation and Freedom of Religious Belief. In: Paladini, L., Iglesias Vázquez, M.d.Á. (eds). Protection and Promotion of Freedom of Religions and Beliefs in the European Context. Springer, Cham. DOI: <10.1007/978-3-031-34503-6_15>. [4] Barkat, A. (2024). Child Labor in Algerian society - according to a realistic approach. The Comprehensive Journal of Psychological Studies and Educational Sciences, 9(2), 368-387. [5] Effah, K. O. (2025). Deconstructing the Factors Engendering Child Labour in Ghana: A Legal Approach. The International Journal of Children’s Rights, 33(2), 349-368. DOI: <10.1163/15718182-33020005>. [6] Shpytalenko, G., Havrik, R., Vatras, V., Sabluk, S., Andrukhiv, O. (2024). Safeguarding children’s rights through international legal frameworks. Multidisciplinary Science Journal, 6. <https://10.31893/multiscience.2024ss0735>. [7] Skinner, G. C., Bywaters, P. W., Kennedy, E. (2023). A review of the relationship between poverty and child abuse and neglect: Insights from scoping reviews, systematic reviews and meta‐analyses. Child Abuse Review, 32(2). DOI: <10.1002/car.2795>. [8] The Declaration of the Rights of the Child. 20 November 1959. Adopted under UN General Assembly Resolution No. 1386. [9] Politakis, G. (2023). The recognition of occupational safety and health as a fundamental principle and right at work. International & Comparative Law Quarterly, 72(1), 213-232. DOI: <10.1017/S0020589322000446>. [10] Meinck, F., Franchino-Olsen, H., Hafstad, G. S., Jud, A., Liel, C., Nikolaidis, G., Græsholt-Knudsen, T. (2025). Who gets to decide when children participate? Considering the complexities of consent and gatekeeping in violence research. Child Abuse & Neglect, 169. DOI: <10.1016/j.chiabu.2025.107679>. [11] Convention on the Rights of the Child. 20 November 1989. Adopted under UN General Assembly Resolution 44/25. Entered into force 2 September 1990 pursuant to Article 49. [12] Montà, C. C., Bianchi, D., Edling, S., Biffi, E. (2025). Motivations for paying regard to children’s right in relation to democracy and education: An analysis of Swedish and Italian policy investigations. European Educational Research Journal, 24(4), 530-556. DOI: <10.1177/14749041251314098>. [13] Presidential Decree No. 92-461 dated 19 December 1992, including interpretative declarations, Official Gazette, No. 91, issued 23 December 1992. [14] Adams, C., Pente, P., Lemermeyer, G., Rockwell, G. (2023). Ethical principles for artificial intelligence in K-12 education. Comput. Educ. Artif. Intell., 4. DOI: <10.1016/j.caeai.2023.100131>. [15] Kurniasi, N. F., Sumardi, J., Sakharina, I. K. (2022). Elimination of Violence Against Children During the Covid-19 Pandemic based on the United Nations Convention on the Rights of the Child (UNCRC 1989). Khazanah Hukum, 4(2), 154-169. [16] Donnelly, P. (2024). Child labour in high performance and professional sport: The struggle for children’s rights. Annals of Leisure Research, 27(3), 361-380. DOI: <10.1080/11745398.2023.2232056>. [17] Convention on the Rights of the Child. 20 November 1989. Adopted under UN General Assembly Resolution 44/25, ibid. [18] Daly, A., Stern, R. T., Leviner, P. (2022). UN Convention on the Rights of the Child, Article 2 and Discrimination on the basis of Childhood: The crc Paradox?. Nordic Journal of International Law, 91(3), 419-452. DOI: <10.1163/15718107-91030007>. [19] Haitham, H, A-M., (2008). Al-Muntaqa fi SharhQanun Al-Amal: Comparative Study with Civil Law. 1st ed., Dar Al-Hamed Publishing and Distribution, Amman, Jordan, 50. [20] Koski, A., Mangat, S., Wright, D. (2023). The evolution of child marriage as a human rights concern. Human Rights Review, 24(4), 585-604. DOI: <10.1007/s12142-023-00707-2>. [21] Mačernytė Panomariovienė, I., Wrocławska, T. (2025). Employment of Adolescents and Children: Minimum Working Age in Lithuanian and Polish Law. In: Limantė, A., Vaičiūnienė, R. (eds.). Children’s Rights in Central and Eastern Europe. European Union and its Neighbours in a Globalized World, Vol. 29. Springer, Cham. DOI: <10.1007/978-3-032-07092-0_6>. [22] Food and Agriculture Organization of the United Nations, (2020). Manual for monitoring and evaluating child labour in agriculture. Measuring the impacts of agricultural and food security programmes on child labour in family farming, Rome, 15. [23] Decree No. 2000-387 dated 28 November 2000, Official Gazette, No. 73, issued 3 December 2000. [24] Hammas, H. (2014-2015). Criminal protection of the child victim: comparative study. PhD thesis in Public Law, Faculty of Law and Political Science, University Abou Bekr Belkaid – Tlemcen, 123. [25] Koliev, F., Lebovic, J. H. (2022). Shaming into compliance? Country reporting of convention adherence to the International Labour Organization. International Interactions, 48(2), 258-291. DOI: <10.1080/03050629.2021.1983567>. [26] Khogali, H. O., Mekid, S. (2023). The blended future of automation and AI: Examining some long-term societal and ethical impact features. Technology in Society, 73, 102232. [27] International Programme on the Elimination of Child Labour (IPEC). Programme definition and operation. <https://www.ilo.org/wcmsp5/groups/public/---arabstates/---ro-beirut/documents/genericdocument/wcms_210595.pdf>. [28] Lerouge, L., Trujillo Pons, F. (2022). Contribution to the study on the ‘right to disconnect’from work. Are France and Spain examples for other countries and EU law?. European labour law journal, 13(3), 450-465. DOI: <10.1177/20319525221105102>. [29] Hassan, O., Abd E. S. A. H. (2018). International Administrative Justice in the International Labour Organization: A Comparative Study. Arab Center for Scientific Studies and Research for Publishing and Distribution, Cairo, Egypt, 62. [30] Law No. 90-11 dated 21 April 1990 relating to Labour Relations, Official Gazette, No. 17, issued 25 April 1990. [31] Law No. 15-12 dated 15 July 2015 relating to Child Protection, Official Gazette, No. 39, issued 19 July 2015. [32] Lafarre, A. (2023). The proposed Corporate Sustainability Due Diligence Directive: corporate liability design for social harms. European Business Law Review, 34(2). 213-240. DOI: <10.54648/eulr2023017>. [33] Law No. 90-11, ibid. [34] Ordonnance n° 2001-174 of 22 February 2001 regarding the transposition of Directive 94/33/CE of the Council of 22 June 1994 on the Protection of Young People at Work, Official Gazette, No. 47, 24 February 2001. [35] Egyptian Child Law No. 12 of 1996, issued 25 March 1996, Official Gazette No. 13, amended by Law No. 126 of 2008, issued 15 June 2008, Official Gazette No. 24 (Republished), issued 15 June 2008. [36] Royal Decree No. M/51 dated 27 September 2005, including the Labour System, Umm Al-Qura, No. 4068, issued 28 October 2005. [37] Al-Mulla, M. S., Barafi, J. (2024). The legality of vaccination in accordance with international and national standards. International Journal of Public Law and Policy, 10(4), 430-448. [38] McCann, D., Stewart, A. (2024). Quality, formality and the evolution of international labour law: the new ILO quality apprenticeships standard. Industrial Law Journal, 53(4), 638-678. DOI: <10.1093/indlaw/dwae012>. [39] Law 90-11, ibid. [40] Law No. 15-12 relating to Child Protection, ibid. [41] Bakhda, M. (2021). Legislative Gaps in Regulating Minor Labour in Algeria. Journal of Labour and Employment Law, Faculty of Law and Political Science, Abdelhamid Ben Badis University – Mostaganem, (3), 99. [42] Gangwar, S. (2022). Minors’ contracts in the digital age. Liverpool Law Review, 43(2), 237-261. DOI: <10.1007/s10991-022-09298-3>. [43] Bakhda, M. (2014). Legal Protection of Minor Workers in Algerian Legislation. Law Journal, Institute of Legal and Administrative Sciences, University Center – Relizane, (4), 55. [44] Law No. 90-11, ibid. [45] Harmon, R. (2023). Law and Orders. Columbia Law Review, 123(4), 943-1016. <https://www.jstor.org/stable/27218396>. [46] Hammas, H., Op. cit. [47] Law No. 15-12 relating to Child Protection, ibid. [48] Canosa, A., Graham, A., Simmons, C. (2022). Progressing children’s rights and participation: Utilising rights‐informed resources to guide policy and practice. Australian Journal of Social Issues, 57(3), 600-626. DOI: <10.1002/ajs4.202>. [49] Law No. 15-12 relating to Child Protection, ibid. [50] Ibid. [51] Decree No. 16-334, dated December 19, 2016, establishes the conditions and procedures for the organization and operation of the National Authority for the Protection and Promotion of Childhood in Algeria, Official Gazette, No.75, 21 December 2016. [52] Law 15-12 relating to Child Protection, ibid. [53] Ali, B. (2023). Access to Justice for Children: Challenges and the Way Forward. In Human Rights and Legal Services for Children and Youth: Global Perspectives (pp. 13-40). Singapore: Springer Nature Singapore. DOI: <10.1007/978-981-99-5551-0_2>. [54] Gerdts-Andresen, T., Andersen, M. V. S., Hansen, H. A. (2024). The child’s right to family life when living in public care: How to facilitate contact that preserves, strengthens, and develops family ties. Children and Youth Services Review, 159. DOI: <10.1016/j.childyouth.2024.107495>. [55] Law 15-12 relating to Child Protection, ibid. [56] Ibid.
Where Regimes Meet: Human Rights and International Investment Law at the Point of Expropriation
Contemporary international law increasingly rejects the notion of autonomous legal regimes, favoring a pluralist order grounded in normative interaction. Within this framework, international investment law (IIL) emerges, not as an autonomous, but as a specialized regime embedded in public international law and operating in normative interaction with other regimes, particularly international human rights law (IHRL). The doctrine of expropriation constitutes the central interface between these regimes, where the protection of foreign investors’ property intersects with states’ sovereign regulatory authority in pursuit of public welfare and human rights obligations. This article examines expropriation through the distinction between a priori rights, grounded in human dignity and justice, and posteriori treaty-based protection emanating from state consent. It argues that prevailing arbitral jurisprudence has predominantly privileged proprietary interests through compensation-centered reasoning, often marginalizing broader public-law values embedded in IHRL. The result is a legitimacy deficit, especially in expropriation cases involving states’ regulatory measures. This article contends that existing analyses remain incomplete because they focus predominantly on legality rather than legitimacy. In response, it advances a legitimacy-oriented framework grounded in proportionality and systemic integration. This methodology seeks to balance investors’ economic interests with states’ regulatory powers in furtherance of development and public welfare objectives. Recognizing a priori normative status of human rights does not undermine investor protection; rather, it requires recalibrating such protection within a coherent public international law framework. Ultimately, the legitimacy of expropriation adjudication lies not in hierarchical regime prioritization, but in public law methodology capable of reconciling property protection with human-rights-based state regulation. Keywords: Expropriation, human rights, legitimacy, property rights, proportionality. Introduction In contemporary international legal discourse, globalization is no longer conceived as antithetical to plurality, but rather as the arena of its coexistence. The international legal order is shaped by diverse states, cultures, regulatory priorities, and institutional actors, resulting in the proliferation of norms and legal instruments, which has led to the emergence of multiple specialized or subordinated legal regimes within the overarching architecture of public international law.[1] This development has displaced the once-hegemonic conception of international law as constituted of autonomous and self-contained regimes, and has paved the way for understanding the international legal order as a functionally interdependent, structurally interconnected, and normatively overlapping order. In this context, individual legal regimes resemble a neighborhood within a shared legal city of international law; with relative borders, distinct identity, and different functional purposes, yet inevitably neighboring, dialoguing with, and being influenced by other neighborhoods, in such a way that none of them operate in isolation or in a normative vacuum. This evolution gives rise to a foundational question: If international legal regimes are not per se independent, how should their interaction and normative coordination be conceptualized? International investment law exemplifies this structural shift. While it functions as an autonomous specialized regime, it operates as a subsystem within the overarching framework of public international law, and increasingly interacts with other normative systems, most notably international human rights law. This interaction becomes particularly consequential where state interference with property is assessed, and nowhere is it more visible than in the doctrine of expropriation. Expropriation occupies a central position in IIL, simultaneously protecting investors and serving as the principal arena in which private economic interests confront sovereign regulatory authority. Over time, arbitral jurisprudence has developed an elaborate legality framework distinguishing lawful from unlawful takings, relying on criteria such as public purpose, non-discrimination, due process, indirect expropriation, legitimate expectations, and compensation in accordance with the Hull formula. While this legality-based structure is among the most settled areas of IIL, it risks obscuring a deeper normative question of whether satisfaction of formal criteria alone suffices to render state interference with property legitimate. In practice, compensation has become the principal corrective mechanism for resolving regulatory conflicts, leading tribunals to prioritize legality and economic valuation over justification and legitimacy. This approach exacerbates a persistent legal and conceptual gap between international investment law and international human rights law, contributing significantly to the system’s legitimacy deficit.[2] Furthermore, as the boundaries of international economic law expand, the necessity of integrating human rights considerations is becoming an unavoidable legal imperative even within the sphere of international commercial arbitration.[3] Investor-state disputes are largely framed in economic terms, with tribunals demonstrating considerable sophistication in calculating market value while devoting comparatively limited attention to the normative foundations that should constrain state interference or meaningfully integrate human rights considerations. Although human rights concepts such as due process, proportionality, and the right to property are increasingly appearing in arbitral reasoning, they are often invoked without methodological coherence. Balancing explains how interests are weighed, but not why particular interests should prevail or on what normative basis limits ought to be imposed, thereby blurring the boundary between legality and legitimacy. Building upon prior scholarship addressing balancing and expropriation,[4] this article argues that the persistent incoherence of expropriation jurisprudence stems not merely from doctrinal indeterminacy, but from an unexamined assumption of equivalence between investor property under IIL and property protected as a human right under IHRL. This presumed equivalence masks profound conceptual differences. In IIL, property is a treaty-based economic entitlement aimed at promoting capital mobility and investment security. In IHRL, property is a qualified right embedded within a broader normative structure grounded in human dignity and social justice, and collective interests. By treating these conceptions as normatively interchangeable, tribunals render adjudication technically precise yet normatively shallow, assessing regulatory measures, such as those protecting public interest, environment, health, and social welfare, primarily through their economic impact, rather than through structured justification. This article, therefore, reconceptualizes expropriation less as a question of legality and more as a matter of legitimacy within an interdependent international legal order. It advances a legitimacy-oriented framework grounded in proportionality, systemic integration, and context-sensitive compensation, contributing to debates on ISDS reform and the philosophical foundations of property rights. Methodology Employing a descriptive, analytic, and comparative methodology, this article examines investment treaty provisions and investment arbitration jurisprudence to elucidate how tribunals currently balance investor property rights against public‑interest regulation and how they conceptually frame legality and legitimacy. By juxtaposing the economic asset model of property in international investment law with the social function model developed in human rights jurisprudence, the study develops a legitimacy‑oriented analytical framework grounded in proportionality and systemic integration under international law. Ultimately, this framework is applied to reassess prevailing expropriation case law and to evaluate whether investment adjudication can reconcile a priori human‑rights norms with a posteriori, treaty‑based property protection in a coherent public‑law structure. Findings and discussion 1. Conceptualizing Property Across Legal Regimes There exists a central yet insufficiently examined premise underlying expropriation jurisprudence: that “property” holds the same meaning and legal status across IIL and IHRL. This premise is rarely articulated in arbitral decisions, yet it casts a shadow over arbitral reasoning, obscuring the fact that property serves fundamentally different normative functions in each regime, creating persistent insatiability in the background of arbitral reasoning. Failure to acknowledge this divergence has significant consequences for the interpretation, adjudication, and justification of expropriation, ultimately affecting its legitimacy. When tribunals treat these distinct concepts of property as if they were normatively equivalent, they obscure their true foundations and make coherent balancing practically impossible. A. Property in International Investment Law: Economic Asset and Treaty Construct In international investment law, property is primarily conceived as an economic asset whose protection promotes foreign investment by facilitating capital flows and investors’ security. The concept of “investment” is broadly defined in bilateral investment treaties and free trade agreements, encompassing shares, contractual rights, concessions, intellectual property, and legitimate expectations associated with regulatory stability.[5] This breadth reflects the regime’s functional objectives: to maximize the protection of capital-based interests and enhance predictability for investors. Property rights in this context are consent-based and treaty-derived, grounded not in human dignity or societal involvement, but in the host state’s international obligations. Their scope is determined by treaty text, arbitral interpretation, and applicable domestic law, rendering investor entitlements contingent upon both the existence of treaty protection and its adjudicative construction. However, balancing this asymmetry requires looking beyond state obligations alone; there is a growing necessity to “redesign corporate social responsibility clauses” to reflect binding investor human rights and environmental obligations.[6] This structural shift is essential to navigate the “tightrope of ethics, power, and responsibility” that increasingly characterizes modern investment arbitration.[7] This instrumental conception of property is closely tied to the structure of investor-state dispute settlement. ISDS allows investors to bypass domestic legal systems, turning regulatory disputes into claims of an economic nature assessed through valuation methods like fair market value or discounted cash flow.[8] The emphasis on valuation reflects a deeper normative orientation in which interference with property rights is primarily treated as an economic harm warranting financial compensation, rather than as a normative question about the legitimacy of state interference with those rights. Once compensation is deemed adequate, the legitimacy of the interference is often treated as resolved. This orientation helps explain why investment tribunals allocate significant effort to quantification of damages, while devoting comparatively little attention to the moral or social justification of state regulatory measures. B. Property in International Human Rights Law: Qualified Right and Social Function International human rights law approaches property from an entirely different normative starting point. Under IHRL, property is viewed as one of several rights necessary for individual autonomy, human dignity, security, and social participation. It is not treated as an absolute right; instead, its protection is conditioned by the requirements of public interest, proportionality, and respect for the rights of others.[9] This understanding is particularly evident in the jurisprudence of regional human rights courts, notably the European Court of Human Rights, which has consistently highlighted the social function of property and grants states a wide margin of appreciation in regulating it to achieve legitimate public objectives.[10] Property interference is assessed not merely in terms of compensation, but through a proportionality test that examines the relationship between the measures taken and their objectives, the availability of less restrictive alternatives, and the overall fairness of the burden placed on the individual.[11] Importantly, in human rights law, compensation is neither automatic nor always equal to full market value. While it is an important consideration in assessing proportionality, its absence does not automatically make an interference unlawful, nor does its presence legitimize state action.[12] The central concern is whether a “fair balance” has been struck between the demands of the public interest and the protection of individual rights.[13] Property is protected to the extent that it supports individual autonomy and social participation, yet it remains secondary to broader societal objectives such as public health, environmental protection, and social justice.[14] In this sense, property is situated within a normative order that prioritizes people over assets. C. The False Assumption of Normative Equivalence Despite these profound differences, there exists a false assumption in investment tribunals’ jurisprudence that on the functional and normative equivalence between investor property protected under IIL and property protected as a human right under IHRL. This assumption manifests in uncritical invocation of the right to property as a shared foundation across regimes; the use of proportionality language without proper human-rights methodology, and the tendency to resolve conflicts through compensation rather than justification.[15] Tribunals find the assumption of equivalence appealing as it offers an illusion of coherence across fragmented legal regimes such as IIL and IHRL in the context of expropriation. Balancing of interests and rights appears straightforward, and conflicts seem manageable, if the notion of property is considered as the same right in both contexts. This apparent coherence, however, is misleading. Investor property is protected to promote economic activity and maintain investment confidence, whereas property protected under IHRL serves to safeguard individual dignity and social participation. These distinctions reflect not simply different priorities, but rather different normative logics. By collapsing these distinct normative logics, tribunals sidestep the question of why investor property should enjoy the same level of protection as property held by individuals in their capacity as human beings. The result is a jurisprudence that implicitly elevates economic interests to quasi-fundamental status without articulating the normative justification.[16] This prioritization becomes problematic in disputes involving public interest regulation, where the social costs of investment protection fall not on the investor but on the affected communities. While expropriation disputes require balancing competing interests, such balancing presumes their normative commensurability. Absent a clear account of their foundations, adjudication risks degenerating into intuitive trade-offs rather than principled reasoning, producing a structural legitimacy deficit that doctrinal refinement alone cannot cure. D. Implications for Expropriation Analysis Recognizing the divergence between property conception across legal regimes requires abandoning the assumption of equivalence rather than subordinating investment protection to human rights. While investor property merits protection against arbitrary or discriminatory measures, it carries a different normative weight than human-rights-based property, which in turn demands distinct justificatory standards. This insight carries direct consequences for expropriation analysis. It indicates that compensation cannot function as a universal solvent for legitimacy concerns, and that proportionality must be treated as a substantive standard rather than a merely rhetorical device. Above all, it underscores the necessity of an analytical framework that assesses not only the economic impact of state measures, but also their normative justification in relation to competing social interests. 2. Human Rights as Priori Rights and Property Rights as Posteriori Rights The instability of expropriation jurisprudence cannot be fully understood without addressing a deeper normative distinction that often remains implicit in international adjudication: the difference between human rights as a priori, pre-positive rights grounded independently of positive law and property rights as posteriori entitlements created through legal instruments. This distinction is not simply philosophical; it structures the way rights are generated, justified, and limited across legal regimes. Its absence within investment jurisprudence directly contributes to the legitimacy deficit previously identified. A. Human Rights as Priori Rights: Dignity, Universality, and Pre-Positivity In contemporary international law, human rights are commonly described as universal, inalienable, and inherent. Although codified in treaties such as the International Covenant on Civil and Political Rights and the European Convention on Human Rights, their normative justification is not reducible to state consent.[17] Rather, human rights instruments explicitly invoke the “inherent dignity” of the human person as the source of rights, indicating that legal recognition declares pre-existing rights rather than creates them.[18] This pre-positive character of human rights is deeply rooted in natural law traditions, from Hugo Grotius’ account of rights that would endure even “if God did not exist”, [19] to modern human rights law, which no longer requires adherence to classical natural law metaphysics yet retains the view that certain interests such as life, dignity, physical integrity, and basic autonomy, are normatively prior to political authority.[20] Within this framework, the right to property is not conceived as an absolute entitlement to exclusion or economic exploitation, but as a qualified right that serves human flourishing and social participation. Human rights jurisprudence consistently subjects property to limitations justified by public interest, the rights of others, and broader social needs, assessing state interference through proportionality rather than automatic compensation.[21] Human rights thus operate independently of reciprocal consent and require public justification for their limitation, an approach that contrasts sharply with the logic underpinning investor property protection. B. Property Rights as Posteriori Rights: Consent, Constructed Expectations, and Economic Function Investor property rights under IIL are paradigmatically a posteriori. They come into existence only through positive legal acts, including the conclusion of an investment treaty, the making of a qualifying investment, and the host state’s consent to arbitral jurisdiction. Unlike human rights, they are not attributed to investors by virtue of their humanity, but by virtue of their economic activity within treaty-based legal frameworks. This constructed character of investor property is reflected in the expansive asset-based definitions of “investment” found in bilateral investment treaties. Such definitions deliberately detach property from traditional notions of ownership and instead ground it in economic value and exposure to risk.[22] As a result, legitimate expectations, contractual rights, and even regulatory stability are treated as protected property interests, despite lacking recognition within domestic constitutional property regimes.[23] The protection of investor property is primarily aimed at promoting foreign direct investment by reducing political risk and ensuring predictability. Property rights function as incentives, rather than expressions of inherent dignity.[24] These rights are contingent, and context-dependent, subject to state regulatory powers unless explicitly waived. Nevertheless, arbitral tribunals often treat such rights as quasi-absolute, evaluating regulatory measures primarily through the lens of economic impact rather than normative justification. The a posteriori and retrospective nature of these rights is thereby concealed, and their contingent, derivative status flattened into an assumed equivalence with fundamental rights. C. The Normative Asymmetry and Its Implications on Expropriation A central challenge in expropriation adjudication arises from the failure to distinguish between a priori rights protected under IHRL and the a posteriori character of investor property protection under IIL. When tribunals balance investor interests against public-interest regulation without first clarifying the normative status of the interests being balanced, they implicitly tend to assume equivalence between conceptually dissimilar forms of property. Yet balancing presupposes a shared metric of value and justification. Where that metric is not articulated, adjudication risks becoming intuitive: the tribunal may appear to weigh competing interests while, in reality, defaulting to valuation, expectations, and loss allocation as proxies for legitimacy. This normative asymmetry becomes most evident in compensation practice. In IIL, compensation often functions as the decisive legitimizing mechanism for state interference. Once payment is ordered (or deemed payable), the underlying justification for regulation is treated as largely resolved. In IHRL reasoning, by contrast, it is merely one element within a broader proportionality analysis, and it cannot alone justify measures that impose excessive, discriminatory, or unjustifiable burdens. Recognizing the a priori/posteriori distinction does not require subordinating investment protection to human rights. Rather, it clarifies why investor property cannot automatically claim the same normative weight as rights grounded in human dignity and collective welfare. It also explains why a legality-and-compensation-centered approach may satisfy formal treaty logic while remaining vulnerable to a legitimacy deficit when regulatory measures implement public-health, environmental, or social-justice commitments. This legitimacy deficit underscores the broader necessity of robust public interest justifications in regulatory actions. As modern administrative and economic frameworks demand clearer articulation of the public interest to legitimize state interventions, whether in privatization contexts or general administrative law, investment arbitration must also increasingly accommodate the intrinsic value of these public interest justifications without reflexively triggering compensation mechanisms.[25] D. Jurisprudential Trajectories: From Expansive Regulatory Takings to Police Powers and Proportionality The case law illustrates these dynamics. Early NAFTA-era awards fueled the concern that regulatory measures, especially environmental ones, could be reframed as compensable takings.[26] In contemporary treaty evolution, such concerns have driven efforts to explicitly carve out and protect the state’s right to regulate, ensuring that urgent public policy goals, most notably climate change mitigation and environmental actions, are shielded from being interpreted as indirect expropriations.[27] In Metalclad v. Mexico,[28] Mexico’s refusal of permits and the establishment of an ecological zone were treated as treaty breaches, with expropriation defined broadly to include “covert or incidental interference” that deprives an investor of significant expected economic benefit. The subsequent set-aside proceedings in the arbitral seat partially constrained the award on fair and equitable treatment while leaving intact key aspects of the expropriation outcome.[29] In SD Myers v. Canada,[30] an export ban adopted under asserted environmental rationales produced liability amid evidence suggestive of protectionist intent, and the tribunal’s posture was read as demanding justification from the state. These early awards became focal points in the critique that indirect expropriation and expectations-based reasoning might generate regulatory chill, especially for developing states that cannot easily absorb compensation liabilities.[31] Empirical and doctrinal analyses increasingly substantiate this “regulatory chill” hypothesis, particularly demonstrating how the threat of arbitration deters urgent environmental protection measures.[32] Consequently, developing nations are increasingly forced to explore preventative legal strategies and policy mechanisms to mitigate these chilling effects on their sovereign right to govern in the public interest.[33] However, even within NAFTA practice, subsequent awards reflected doctrinal retrenchment and a concern to preserve regulatory space. This conceptual shift resonates with the broader crystallization of the “right to regulate” paradigm, which posits those public authorities, spanning both national and provincial levels, must retain foundational autonomy to enact financial, administrative, and protective measures. Accordingly, modern international investment agreements increasingly institutionalize this right to prevent the undue restriction of sovereign governance.[34] In Azinian v. Mexico,[35] the tribunal rejected an attempt to internationalize contractual disappointment already adjudicated domestically, emphasizing that NAFTA was not designed to provide blanket insurance against adverse administrative and judicial outcomes and cautioning against converting ordinary governance into compensable international wrongs. Similarly, Pope & Talbot v. Canada[36] rejected the expropriation claim on the facts while refusing a categorical “police powers” exclusion, warning that blanket exemptions would create a loophole for creeping expropriation and instead anchoring the inquiry in the degree of interference, effective control, and operational profitability. These cases reflect an emerging judicial awareness that the credibility of expropriation doctrine depends on maintaining a principled boundary between regulation and taking, without immunizing the state, but also without treating every regulatory harm as a compensable deprivation. At its core, this jurisprudential balancing act reflects the systemic tension surrounding the host state’s “right to regulate”.[37] Despite emerging judicial awareness, a profound structural imbalance often persists between robust investment protection and necessary sovereign regulatory space, revealing the limits of current piecemeal reform efforts in international investment law.[38] The decisive consolidation of a police-powers-oriented approach in the provided text is attributed to Methanex v. US,[39] which treated non-discriminatory regulation for a public purpose, adopted with due process, as non-compensable in principle unless the state had given specific commitments to refrain from regulation. Scholarly efforts have increasingly focused on drawing precise boundaries for this police powers doctrine, conceptualizing it as a vital sovereign defense against claims of indirect expropriation and advocating for a more balanced framework between investor protections and state regulatory authority.[40] In legitimacy terms, Methanex can be read as an implicit correction to the over-extension of indirect takings doctrine: it seeks to prevent the conversion of general welfare regulation into compensable expropriation absent a clear undertaking that stabilizes expectations. This line of authority is complemented by broader public-law reasoning found in other fora. The Iran–US Claims Tribunal in Sedco v. Iran[41] recognized a police powers exception, stating that no liability arises for economic injury resulting from bona fide regulation within accepted police powers. Parallel language appears in Tecmed v. Mexico,[42] which described as “undisputable” the principle that states may cause economic harm through police powers without compensation. Critically for the present article’s legitimacy thesis, Tecmed also gestures toward proportionality by requiring tribunals to evaluate whether regulatory measures are proportional to the public interest pursued and the investment protection granted, and it frames legitimacy as dependent on factors including expectations, the importance of the protected interest, and distributive impact.[43] Yet Tecmed simultaneously illustrates the normative asymmetry problem: although it invites proportionality language, it does not clearly specify why investor expectations, derivative and treaty-mediated, should carry decisive normative weight against public health or environmental objectives grounded in collective welfare. This structural asymmetry exposes deeper systemic tensions within the liberal international order, where the interplay between domestic investment laws and international economic frameworks often sidelines urgent global imperatives, such as equitable resource governance and the pursuit of supply chain justice.[44] Post-Methanex jurisprudence in the text shows both consolidation and continuing divergence. Vivendi v. Argentina[45] emphasized effect over intent in assessing regulatory interference, while Parkerings v. Lithuania[46] offered a definition of indirect expropriation as deprivation of enjoyment without formal transfer, and it endorsed the broad Metalclad formulation even though the dispute was contract-centered. At the same time, annulment reasoning in MTD v Chile[47] criticized Tecmed’s apparent reliance on investor expectations as a source of state obligations, reasserting that obligations derive from treaty terms rather than expectations alone—though the text notes that expectations can still matter insofar as the treaty system itself makes them relevant to defining the limits of indirect expropriation. Siemens v. Argentina[48] further illustrates doctrinal consolidation around the irrelevance of governmental intent and the possibility of “creeping” expropriation through aggregated measures. Saluka v. Czech Republic[49] then restated a general deference principle: states do not expropriate when adopting general regulations commonly accepted within policy powers, reinforcing the Sedco v. Iran[50] police-powers logic. Finally, fiscal-regulation disputes underscore the evidentiary instability of expectations: Feldman v. Mexico[51] treated tax laws as generally changeable, while Goetz found in favor of the investor where specific confirmations were sought, illustrating how “expectations” can drift toward an unstable and over-inclusive constraint on governance. These lines of authority map directly onto the normative asymmetry thesis. Where tribunals treat investor property as functionally equivalent to human-rights property and accept compensation as the primary legitimizing device, public-interest regulation risks being framed as a compensable deviation from investor expectations rather than as a presumptively legitimate exercise of democratic governance. Where tribunals adopt police powers and proportionality reasoning, they move closer to legitimacy-sensitive adjudication, but the jurisprudence remains vulnerable when it fails to articulate the normative hierarchy and justificatory framework that distinguishes treaty-based economic entitlements from dignity-based rights and collective interests. This is precisely why later disputes, often outside the excerpted NAFTA cluster, are analytically instructive for your article’s framework. For example, Azurix v. Argentina[52] is frequently discussed as recognizing a regulatory space in water/public utilities while still centering investor loss and compensation logic; Philip Morris v. Uruguay[53] is often read as unusually deferential to public-health regulation despite economic impact, yet without a fully theorized normative hierarchy. These decisions (along with the Iran–US Claims Tribunal’s contextual approach in cases like Sedco) collectively support the proposition that legitimacy in expropriation disputes cannot be reduced to compensability, and that doctrinal stability requires explicit engagement with proportionality, systemic integration, and the a priori/a posteriori distinction. E. Toward a Legitimacy-Sensitive Framework The distinction between a priori and a posteriori rights established a conceptual foundation for reconceptualizing expropriation analysis. It elucidates why compensation, as a remedial mechanism, is insufficient to resolve legitimacy concerns and why proportionality review must be anchored in human-rights-based reasoning rather than confined to economic balancing. By acknowledging the derivative and consent-based nature of investor property, adjudicatory bodies are better positioned to articulate the limits of protection in a manner that preserves systemic coherence, foreseeability, and legal stability. 3. A Legitimacy-Oriented Framework: Proportionality and Systemic Integration To move expropriation jurisprudence beyond the narrow focus on legality and compensation, a framework is needed that engages directly with questions of legitimacy. This approach rests on two mutually reinforcing principles of general international law: proportionality and systemic integration. Together, they offer a structured methodology for reconciling investment protection with human rights obligations, ensuring that one regime does not override the other. A. Proportionality as a Legitimacy Test Proportionality provides a structured and principled alternative to ad hoc or intuitive balancing in expropriation analysis. Unlike approaches that rely on discretionary weighing of interests, it follows a clear sequence: suitability, necessity, and proportionality, which requires tribunals to articulate reasons for limiting rights. In practice, this legitimacy-oriented expropriation analysis ensures that states justify their measures by demonstrating a legitimate public objective and a rational connection between the measures taken and that objective, while also constraining excessive interference through consideration of less restrictive alternatives. Proportionality goes beyond simply keeping state power in check; it helps ensure a fair allocation of burdens is struck by assessing whether the impact on affected individuals is excessively relative to the public interest achieved. Unlike compensation-centered approaches, which treat compensation as a shortcut to legitimacy, proportionality focuses first on whether the state measure itself is substantially justified, with compensation considered only after legitimacy has been established. By prioritizing reasoned justification rather than solely economic assessment, proportionality provides a strong framework for reconciling investment protection with wider public interests and human rights obligations. B. Systemic Integration and Compensation in a Legitimacy-Oriented Framework Proportionality alone is insufficient without a mechanism for integrating human rights norms into investment adjudication. Systemic integration, as articulated in Article 31(3)(c) VCLT, ensures that investment treaties are interpreted in light of all relevant rules of international law applicable between the parties.[54] Systemic integration does not expand tribunal jurisdiction or impose external obligations, but it informs interpretation by embedding investment obligations within a wider normative context, giving human rights, environmental, and constitutional norms interpretive relevance where they intersect with the investment standard. Importantly, systemic integration does not assume the automatic hierarchy of human rights over investment protection. Instead, it facilitates coherence by recognizing that states operate within an interconnected normative legal framework. Within this legitimacy-oriented model, compensation is repositioned as a remedial measure contingent on the outcome of the proportionality analysis, rather than a primary source of legitimacy. When a state measure in expropriation is disproportionate or unjustified, compensation cannot cure the underlying illegitimacy, whereas proportionate and legitimate measures may involve context-sensitive adjustments to compensation instead of rigid adherence to market value. Institutionally and doctrinally, adopting a legitimacy-oriented framework would not require radical institutional reform of investor-state arbitration, but it would require a recalibration of reasoning. Tribunals would be expected to articulate the public interest pursued, apply structured proportionality analysis, interpret obligations through systemic integration, and treat compensation as derivative rather than determinative. By combining proportionality with systemic integration and a principled approach to compensation, this framework enhances transparency, predictability, and normative credibility, aligning investment law more closely with constitutional and human rights jurisprudence. 4. Implications for Investment Arbitration and Reform A legitimacy-oriented framework grounded in proportionality and systemic integration has implications that extend beyond doctrinal refinement to the broader reform debates surrounding investor-state dispute settlement (ISDS). Contemporary reform discussions, particularly within UNCITRAL Working Group III, tend to focus on procedural and institutional adjustments, such as appellate mechanisms or standing courts.[55] However, to be truly effective, these reform efforts should be conceptualized through the lens of comparative and international public law. Reconceptualizing ISDS within a public law or constitutional framework is vital to address the democratic deficit and the imbalance between private rights and public interests that plague the current system.[56] These institutional shifts are part of a broader evolution in investor-state dispute settlement, where the focus is increasingly on balancing efficiency with legitimacy.[57] Moreover, the interaction between foreign direct investment and human rights remains one of the most contentious issues within these evolving dispute settlement frameworks.[58] However, many of the regime’s most persistent criticisms are fundamentally normative, namely concerns about the perceived imbalance between investor protection and public interest regulation, marginalization of human rights considerations, and the democratic deficit associated with arbitral decision-making. Procedural reform alone cannot address these critiques if adjudicative reasoning continues to prioritize valuation over justification. Within the broader landscape of international dispute settlement, it is evident that substantive human rights arguments raised by the parties carry profound procedural implications that cannot be resolved by institutional redesign alone.[59] A legitimacy-oriented approach grounded in proportionality and systemic integration offers a way to recalibrate investment arbitration from within, enhancing normative coherence without dismantling the regime. One immediate implication of the proposed framework is a shift from compensation-centered analysis toward structured justification-centered adjudication. It would require investment tribunals to explicitly articulate the public purposes pursued by contested measures, to assess their necessity and proportionality as well as legitimacy before addressing compensation. Contemporary awards often acknowledge public interest objectives but devote disproportionate analytical attention to economic loss and compensation. Such an approach would enhance transparency and normative clarity without diminishing legal certainty. Tribunals would be compelled to explain not only how much compensation is due, but why interference is or is not justified in light of competing interests. The framework also has implications for treaty interpretation and future treaty drafting. Systemic integration under Article 31(3)(c) VCLT offers an orthodox interpretative method for aligning investment obligations with states’ human rights and broader international commitments, reinforcing coherence across regimes and mitigates fragmentation. Indeed, this fragmentation of international law has led to a critical intersection where international investment law and international human rights law often collide. Recent scholarship emphasizes that navigating this is not merely about resolving a conflict of rules, but requires a “mapping of human rights obligations” within the investment treaty framework to decouple traditional approaches by tribunals.[60] This includes the strategic application of regional human rights instruments, such as the European Convention on Human Rights, within the context of international investment disputes to ensure normative harmony.[61] This perspective also aligns with emerging views from the Global South; for instance, the African experience provides a unique “regional paradigm” for promoting human rights through the specificity of international investment law.[62] Achieving this international legal coherence requires a deep understanding of state human rights obligations as they intersect with international investment law.[63] Ultimately, moving towards a closer integration of human rights considerations into investment arbitrations is not merely a theoretical ideal, but a practical necessity for resolving normative conflicts.[64] As modern investment treaties increasingly include preambular references to sustainable development, public health, and human rights, as well as regulatory space,[65] proportionality-based reasoning can give substantive effect to these clauses without rewriting treaty text. From a drafting perspective, the framework supports trends toward clearer articulation of regulatory objectives, proportionality clauses, and context-sensitive compensation standards. Such provisions do not weaken investment protection; they clarify its limits and thereby reduce uncertainty and conflict. The legitimacy deficit of investment arbitration is most acutely felt by host States in the Global South, where investment disputes often intersect with issues of development, redistribution, and post-colonial sovereignty. It is worthy to note that this approach responds to Global South critiques that investment law privileges foreign capital over domestic social priorities, by situating investor protection within a broader normative context attentive to development and social justice. Drawing on jurisprudence such as that of the Iran–United States Claims Tribunal and constitutional traditions emphasizing the social function of property over absolute ownership, this approach offers a pathway toward reconciling investment protection with host states’ normative commitments without dismantling international adjudication. Ultimately, institutional reforms may improve consistency, but legitimacy depends not only on procedural design but on how decisions are reasoned and justified. A system that foregrounds justification through proportionality and systemic integration is therefore better positioned to restore credibility while preserving the core protective function of investment arbitration than a reformed institution that continues to prioritize valuation over justification. Conclusion Expropriation lies at the heart of the normative tension between international investment law and international human rights law. While investment jurisprudence has developed an elaborate doctrinal framework distinguishing lawful from unlawful expropriations, this article has argued that such analyses remain incomplete insofar as it privileges formal legality over substantive legitimacy. The resulting jurisprudence is technically sophisticated yet normatively fragile, capable of quantifying economic loss with precision while remaining largely silent on the justification and normative limits of state interference with property. This study has demonstrated that investment tribunals routinely engage in implicit balancing of competing rights without a coherent normative methodology. This practice is underpinned by an unexamined presumption that investor property and human-rights-protected property claims are normatively equivalent, thereby obscuring the fundamentally different conceptual foundations of these rights. By distinguishing between human rights as a priori, dignity-based rights and investor property rights as posteriori, consent-based constructs, the article has exposed a structural legitimacy deficit in expropriation jurisprudence, one reinforced by a positivist orientation that privileges compensation over justification and treats valuation as a surrogate for moral reasoning. To address this deficit, this article has proposed a legitimacy-oriented framework grounded in proportionality and systemic integration. This framework does not seek to subordinate investment law to human rights law, nor does it establish a rigid normative hierarchy. Instead, it offers a principled method for reconciling investment protection with states’ human rights obligations and constitutional commitments, repositioning compensation as a remedial outcome rather than a source of legitimacy. The implications of this approach extend beyond doctrinal coherence. By recalibrating arbitral reasoning toward structured justification, the framework addresses critiques of ISDS legitimacy and offers a path toward more credible, transparent, and context-sensitive adjudication. Ultimately, it suggests that the future of expropriation analysis, and of investment arbitration more broadly, depends not merely on procedural reform, but on a renewed commitment to principled normative reasoning grounded in public justification. References Scholarly literature: Al Mulla, J. (2022). The role of human rights in investment arbitrations: Towards a closer integration. Int’l Rev. L.; Angin, B. (2025). The right to regulate vs investment protection: Unveiling the causes of imbalance and the limits of current reform efforts in international investment law. ICSID Review - Foreign Investment Law Journal, 40(1); Bartels, L., Morgandi, T. (2024). International investment law and state human rights obligations. University of Cambridge Faculty of Law Research Paper, (37); Bouyayachen, S. (2024). The African specificity of international investment law: Allegory of a regional paradigm for the promotion of human rights? African Human Rights Yearbook, 8; Bueno, N., Vastardis, A. Y., Djeuga, I. N. (2023). Investor human rights and environmental obligations: The need to redesign corporate social responsibility clauses. The Journal of World Investment & Trade, 24(2); Bulut, O. E. (2022). Drawing boundaries of police powers doctrine: A balanced framework for investors and states. Journal of International Dispute Settlement, 13(4); Chaisse, J., Dimitropoulos, G. (2023). Domestic investment laws and international economic law in the liberal international order. World Trade Review, 22(1); Das, A. (2024). Mapping human rights obligations in investment treaty arbitration: Decoupling by tribunals. Indian Journal of International Economic Law, 15(2); De Brabandere, E. (2013). Human rights considerations in international investment arbitration. In The Interpretation and Application of the European Convention on Human Rights, Brill Nijhoff; De Brabandere, E. (2018). Human rights and international investment law. (Unedited Version, Research Handbook on Foreign Direct Investment). Edward Elgar; De Brabandere, E. (2025). Investor-state dispute settlement. In Routledge Handbook on International Economic Law, Routledge, 311-330; De Schutter, O. (2019). International human rights law. Cambridge University Press; Donnelly, J. (2013). Universal human rights in theory and practice (3rd ed.). Cornell University Press; Dougherty, K. (2007). Methanex v. United States: The realignment of NAFTA Chapter 11 with environmental regulation. Northwestern Journal of International Law and Business, 27; Dolzer, R., Schreuer, C. (2012). Principles of International Investment Law, 2nd ed, Oxford University Press; Gleason, T., Titi, C. (2022). The right to regulate. In Academic Forum on ISDS Concept Paper (Vol. 2); Grotius, H. (2005). The Rights of War and Peace (Tuck, R. (Ed.). Morrice, J. (Trans). Liberty Fund, Vol. I, Prolegomena §11. (Original work published 1625); Hailes, O. (2022). Lithium in international law: Trade, investment, and the pursuit of supply chain justice. Journal of International Economic Law, 25(1); Hirsch, A. (2009). Investment tribunals and human rights. American Journal of International Law; Jones, E. (2007). Signing away the future: How trade and investment agreements between rich and poor countries undermine development. Oxfam Briefing Paper; Kriebaum, U. (2009). Expropriation. In P.-M. Dupuy, F. Francioni, & E.-U. Petersmann (Eds.), Human rights in international investment law and arbitration, Oxford University Press; Lawrence, J. (2006). Chicken Little revisited: NAFTA regulatory expropriations after Methanex. Georgia Law Review, 41; McInerney-Lankford, S., Vasquez, M. C. (2022). International human rights law and international investment law: Perspective on international legal coherence. Disp. Resol. Int’l, 16; Menghini, F. (2023). An analysis of the regulatory chill hypothesis: Environmental protection in international investment law; Merrills, J., De Brabandere, E. (2022). Merrills’ international dispute settlement. Cambridge University Press; Mouyal, L. W. (2016). International investment law and the right to regulate: A human rights perspective. Routledge; Papadopoulos, T. (2022). Privatizations of state-owned companies and justifications for restrictions on EU fundamental freedoms: past, present and future perspectives. Regulation of state-controlled enterprises: an interdisciplinary and comparative examination; Papanastasiou, T. N. (2022). The role of human rights in international investment arbitration: Arguments raised by the parties and procedural implications. The Law & Practice of International Courts and Tribunals, 21(1); Peterson, L. E., Gray, K. (2003). International human rights in bilateral investment treaties and in investment treaty arbitration. International Institute for Sustainable Development; Racine, J. B. (2023). Human rights and international commercial arbitration. Int’l Bus. L. J.; Schill, S. (2007). Do investment treaties chill unilateral state regulation to mitigate climate change? Journal of International Arbitration, 24(5); Schill, S. W. (2017). Reforming investor-state dispute settlement: A (comparative and international) constitutional law framework. Journal of International Economic Law, 20(3). <https://doi.org/10.1093/jiel/jgx023>; Schreuer, C. (2009). The ICSID Convention: A Commentary (2nd ed.). Cambridge University Press; Simbolon, P. G. M., Yenny, O. (2025). The chilling effect of international investment law and Indonesia’s preventative steps to overcome it. Jurnal Kajian Pembaruan Hukum, 5; Sornarajah, M. (2021). The international law on foreign investment. 5th ed., Cambridge University Press; Szostak, A. (2025). Towards right to regulate for climate actions: A closer look at the modernized Energy Charter Treaty. The Journal of World Investment & Trade, 26(5); Titi, C. (2022). The right to regulate in international investment law (revisited). International and Comparative Law Research Center; Van Harten, G., Loughlin, M. (2006). Investment treaty arbitration as a species of global administrative law. European Journal of International Law, 17(1); Vargiu, P. (2025). Investment arbitration’s tightrope: Ethics, Power and Responsibility. Anthem Press; Waincymer, J. (2009). Balancing property rights and human rights in expropriation. In Dupuy, P.-M., Francioni, F., Petersmann, E.-U. (eds.). Human rights in international investment law and arbitration (pp. 275–308). Oxford University Press; Wigati, A., Amalia, P. (2022). The police powers doctrine as a state’s protection against the claim of indirect expropriation under the international investment arbitration. South East Asia Journal of Contemporary Business, Economics and Law, 28(1); Yacoub, A. R. (2023). Bridging the gap between international investment law and human rights. Hofstra L. Rev., 52. Normative acts: Council of Europe. (1952). Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms. <https://www.echr.coe.int/documents/convention_eng.pdf>; United Nations Commission on International Trade Law, UNCITRAL Working Group III: Investor-State Dispute Settlement Reform (2019); UNCTAD. (2003). Dispute settlement: Investor–State (UNCTAD/ITE/IIT/30); United Nations Conference on Trade and Development. (2011). Scope and definition. <https://unctad.org/webflyer/scope-and-definition>; UNCTAD. (2015). Investment Policy Framework for Sustainable Development. United Nations; United Nations Conference on Trade and Development, World Investment Report 2015: Reforming International Investment Governance (2015). Court decisions: Azurix Corp. v. Argentine Republic. (2006). ICSID Case No. ARB/01/12, Award (14 July 2006); Compania de Aguas de Aconquija SA and Vivendi Universal v Argentina. (2007). ICSID Case No ARB/97/3-20, Award (20 August 2007); ECtHR. (1982). Sporrong and Lönnroth v. Sweden, App. Nos. 7151/75 & 7152/75; ECtHR. (1986). James v. United Kingdom, App. No. 8793/79; ECtHR. (1994). Holy Monasteries v. Greece, App. Nos. 13092/87 & 13984/88; Feldman v Mexico. (2002). ICSID Case No ARB(AF)/99/1, Award (16 December 2002); United Nations. (1966). International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171. Metalclad Corp v Mexico. (2000). ICSID Case No ARB (AF)/97/1, Final Award (30 August 2000); Methanex Corp. v. United States, UNCITRAL, Final Award (Aug. 3, 2005). Mexico v Metalclad Corp. (2001). 2001 BCSC 664 (Supreme Court of British Columbia); MTD Equity Sdn Bhd & MTD Chile SA v Chile. (2007). ICSID Case No ARB/01/7, Decision on Annulment of the ad hoc committee (21 March 2007); Parkerings-Compagniet AS v Lithuania. (2007). ICSID Case No ARB/05/8, Award (11 September 2007); Philip Morris Brands Sàrl, Philip Morris Products S.A., & Abal Hermanos S.A. v. Oriental Republic of Uruguay. (2016). ICSID Case No. ARB/10/7, Award (8 July 2016); Pope & Talbot, Inc v Canada. (2000). Interim Award (26 June 2000), (2002) 122 ILR 316; Robert Azinian and Ors (DESONA de CV) v Mexico, Award, 1 November 1999, (2000) 39 ILM 537; Saluka Investments BV v Czech Republic (Saluka case). (2006). PCA, UNCITRAL, Partial Award (17 March 2006); SD Myers, Inc. v. Canada, UNCITRAL, Partial Award (Nov. 13, 2000). Sedco, Inc. v. National Iranian Oil Co., 9 Iran–U.S. Cl. Trib. Rep. 248 (1985). Siemens AG v Argentina. (2007). ICSID Case No ARB/02/08, Award (6 February 2007); Técnicas Medioambientales Tecmed SA v Mexico. (2003). ICSID Case No ARB(AF)/00/2, Award (29 May 2003), (2004) 43 ILM 133; United Nations. (1948). Universal Declaration of Human Rights, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217(III). Footnotes [1] Mouyal, L. W. (2016). International investment law and the right to regulate: A human rights perspective. Routledge, 96. [2] Yacoub, A. R. (2023). Bridging the gap between international investment law and human rights. Hofstra L. Rev., 52, 65. [3] Racine, J. B. (2023). Human rights and international commercial arbitration. Int’l Bus. L. J., 407. [4] Waincymer, J. (2009). Balancing property rights and human rights in expropriation. In Dupuy, P.-M., Francioni, F., Petersmann, E.-U. (eds.). Human rights in international investment law and arbitration (pp. 275–308). Oxford University Press; Mouyal, L. W. (2016). International investment law and the right to regulate: A human rights perspective. Routledge. [5] UNCTAD. (2015). Investment Policy Framework for Sustainable Development (ch. II). United Nations. [6] Bueno, N., Vastardis, A. Y., Djeuga, I. N. (2023). Investor human rights and environmental obligations: The need to redesign corporate social responsibility clauses. The Journal of World Investment & Trade, 24(2), 179-216. [7] Vargiu, P. (2025). Investment arbitration’s tightrope: Ethics, Power and Responsibility. Anthem Press. [8] Van Harten, G., Loughlin, M. (2006). Investment treaty arbitration as a species of global administrative law. European Journal of International Law, 17(1), 121-150, 122-123; UNCTAD. (2003). Dispute settlement: Investor–State (UNCTAD/ITE/IIT/30), 33. [9] Mouyal. (2016). 42. [10] ECtHR. (1986). James v. United Kingdom, para. 46; ECtHR. (1982). Sporrong and Lönnroth v. Sweden, paras. 69-74; Mouyal. (2016). 106-114. [11] ECtHR. (1994). Holy Monasteries v. Greece, para. 71; Council of Europe. (1952). Protocol No. 1 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 1. <https://www.echr.coe.int/documents/convention_eng.pdf>; Kriebaum, U. Expropriation. (2009). In Dupuy et al. (eds.). Human Rights in International Investment Law and Arbitration, Oxford University Press, 219-244. [12] ECtHR. (1994). Holy Monasteries v. Greece, para. 71. [13] ECHR. Protocol No. 1, Article 1. [14] De Schutter, O. (2019). International human rights law. Cambridge University Press, 323-330. [15] Hirsch, A. (2009). Investment tribunals and human rights. American Journal of International Law, 97, 99-123. [16] Ibid., 97-99. [17] Mouyal. (2016). 114-116. [18] United Nations. (1948). Universal Declaration of Human Rights; United Nations. (1966). International Covenant on Civil and Political Rights. [19] Grotius, H. (2005). The Rights of War and Peace (Tuck, R. (Ed.). Morrice, J. (Trans). Liberty Fund, Vol. I, Prolegomena §11, 89-90. [20] Donnelly, J. (2013). Universal human rights in theory and practice (3rd ed.). Cornell University Press, ch. 1. [21] ECtHR. (1986). James v. United Kingdom, 8793/79, para. 46. [22] United Nations Conference on Trade and Development. (2011). Scope and definition. <https://unctad.org/webflyer/scope-and-definition>. [23] Schreuer, C. (2009). The ICSID Convention: A Commentary (2nd ed.). Cambridge University Press, 653-661, 128-132. [24] Sornarajah, M. (2021). The international law on foreign investment. 5th ed., Cambridge University Press, ch.2, 69-75, 77-80; Dolzer, R., Schreuer, C. (2012). Principles of International Investment Law, 2nd ed, Oxford University Press, 20-25, 145-150. [25] Papadopoulos, T. (2022). Privatizations of state-owned companies and justifications for restrictions on EU fundamental freedoms: past, present and future perspectives. Regulation of state-controlled enterprises: an interdisciplinary and comparative examination, 223-270. [26] Waincymer, 294-305. [27] Szostak, A. (2025). Towards right to regulate for climate actions: A closer look at the modernized Energy Charter Treaty. The Journal of World Investment & Trade, 26(5), 896-924. [28] Metalclad Corp v Mexico. (2000). ICSID Case No ARB (AF)/97/1, Final Award (30 August 2000), 40 ILM 36. [29] Mexico v Metalclad Corp. (2001). 2001 BCSC 664. [30] SD Myers v Canada. (n.d.). Final Award on the Merits, 40 ILM 1408, para 266. [31] Jones, E. (2007). Signing away the future: How trade and investment agreements between rich and poor countries undermine development. Oxfam Briefing Paper; Peterson, L. E., Gray, K. (2003). International human rights in bilateral investment treaties and in investment treaty arbitration. International Institute for Sustainable Development; Lawrence, J. (2006). Chicken Little revisited: NAFTA regulatory expropriations after Methanex. Georgia Law Review, 41, 261, 280. [32] Menghini, F. (2023). An analysis of the regulatory chill hypothesis: Environmental protection in international investment law. [33] Simbolon, P. G. M., Yenny, O. (2025). The chilling effect of international investment law and Indonesia’s preventative steps to overcome it. Jurnal Kajian Pembaruan Hukum, 5, 91. [34] Gleason, T., Titi, C. (2022). The right to regulate. In Academic Forum on ISDS Concept Paper (Vol. 2). [35] Robert Azinian and Ors (DESONA de CV) v Mexico, Award, 1 November 1999, (2000) 39 ILM 537, at para 83; and SD Myers, n 63 above, at para 266. [36] Pope & Talbot, Inc v Canada. (2000). Interim Award (26 June 2000), (2002) 122 ILR 316, paras. 99, 102. [37] Titi, C. (2022). The right to regulate in international investment law (revisited). International and Comparative Law Research Center. [38] Angin, B. (2025). The right to regulate vs investment protection: Unveiling the causes of imbalance and the limits of current reform efforts in international investment law. ICSID Review - Foreign Investment Law Journal, 40(1), 11-41. [39] Methanex v US. (n.d.). ICSID Case No ARB/98/3, Pt IV, ch. D, 7; Dougherty, K. (2007). Methanex v. United States: The realignment of NAFTA Chapter 11 with environmental regulation. Northwestern Journal of International Law and Business, 27, 735, 746. [40] Bulut, O. E. (2022). Drawing boundaries of police powers doctrine: A balanced framework for investors and states. Journal of International Dispute Settlement, 13(4), 583-607; Wigati, A., Amalia, P. (2022). The police powers doctrine as a state’s protection against the claim of indirect expropriation under the international investment arbitration. South East Asia Journal of Contemporary Business, Economics and Law, 28(1). [41] Sedco, Inc v Iran. (n.d.). 9 Iran–US Claims Tribunal Reports 248, para 275. [42] Técnicas Medioambientales Tecmed SA v Mexico. (2003). ICSID Case No ARB(AF)/00/2, Award (29 May 2003), (2004) 43 ILM 133, para. 119. [43] Schill, S. (2007). Do investment treaties chill unilateral state regulation to mitigate climate change? Journal of International Arbitration, 24(5), 469, 473. [44] Chaisse, J., Dimitropoulos, G. (2023). Domestic investment laws and international economic law in the liberal international order. World Trade Review, 22(1), 1-17; Hailes, O. (2022). Lithium in international law: Trade, investment, and the pursuit of supply chain justice. Journal of International Economic Law, 25(1), 148-170. [45] Compania de Aguas de Aconquija SA and Vivendi Universal v Argentina. (2007). ICSID Case No ARB/97/3-20, Award (20 August 2007). [46] Parkerings-Compagniet AS v Lithuania. (2007). ICSID Case No ARB/05/8, Award (11 September 2007), para. 437. [47] MTD Equity Sdn Bhd & MTD Chile SA v Chile. (2007). ICSID Case No ARB/01/7, Decision on Annulment of the ad hoc committee (21 March 2007), para. 67. [48] Siemens AG v Argentina. (2007). ICSID Case No ARB/02/08, Award (6 February 2007), para. 270. [49] Saluka Investments BV v Czech Republic (Saluka case). (2006). PCA, UNCITRAL, Partial Award (17 March 2006), paras. 284, 302. [50] Sedco, Inc v Iran. (n.d.). 9 Iran–US Claims Tribunal Reports 248, para. 275. [51] Feldman v Mexico. (2002). ICSID Case No ARB(AF)/99/1, Award (16 December 2002), 7 ICSID Reports 341. [52] Azurix Corp. v. Argentine Republic. (2006). ICSID Case No. ARB/01/12, Award (14 July 2006). [53] Philip Morris Brands Sàrl, Philip Morris Products S.A., & Abal Hermanos S.A. v. Oriental Republic of Uruguay. (2016). ICSID Case No. ARB/10/7, Award (8 July 2016). [54] VCLT, 1969, Art 31(3)(c) [55] United Nations Commission on International Trade Law, UNCITRAL Working Group III: Investor-State Dispute Settlement Reform (2019). [56] Schill, S. W. (2017). Reforming investor-state dispute settlement: A (comparative and international) constitutional law framework. Journal of International Economic Law, 20(3), 649-672. <https://doi.org/10.1093/jiel/jgx023>. [57] De Brabandere, E. (2025). Investor-state dispute settlement. In Routledge Handbook on International Economic Law, Routledge, 311-330). [58] De Brabandere, E. (2018). Human rights and international investment law. (Unedited Version, Research Handbook on Foreign Direct Investment). Edward Elgar. [59] Merrills, J., De Brabandere, E. (2022). Merrills’ international dispute settlement. Cambridge University Press; Papanastasiou, T. N. (2022). The role of human rights in international investment arbitration: Arguments raised by the parties and procedural implications. The Law & Practice of International Courts and Tribunals, 21(1), 149-177. [60] Das, A. (2024). Mapping human rights obligations in investment treaty arbitration: Decoupling by tribunals. Indian Journal of International Economic Law, 15(2), 2. [61] De Brabandere, E. (2013). Human rights considerations in international investment arbitration. In The Interpretation and Application of the European Convention on Human Rights, Brill Nijhoff, 183-215. [62] Bouyayachen, S. (2024). The African specificity of international investment law: Allegory of a regional paradigm for the promotion of human rights? African Human Rights Yearbook, 8, 123. [63] Bartels, L., Morgandi, T. (2024). International investment law and state human rights obligations. University of Cambridge Faculty of Law Research Paper, (37); McInerney-Lankford, S., Vasquez, M. C. (2022). International human rights law and international investment law: Perspective on international legal coherence. Disp. Resol. Int’l, 16, 45. [64] Al Mulla, J. (2022). The role of human rights in investment arbitrations: Towards a closer integration. Int’l Rev. L., 190. [65] United Nations Conference on Trade and Development, World Investment Report 2015: Reforming International Investment Governance (2015), ch. IV.
Features of the Implementation of the American “Fruit of the Poisonous Tree” Doctrine in Georgian Criminal Procedural Legislation, Comparative Analysis, and Assessment of International Relevance
Article 72 of the Criminal Procedure Code of Georgia, in comparison with the previous Criminal Procedure Code, provides a limited list of items that may be considered inadmissible evidence. First of all, it should be noted that the current Georgian procedural legislation incorporates the long-established judicial doctrine in the American system of criminal procedure known as the “fruit of the poisonous tree”, which is a legal theory and serves as a basis for the exclusion of evidence in criminal cases. According to this doctrine, evidence obtained through a substantial violation, as well as other evidence lawfully obtained based on such evidence, is inadmissible and has no legal force if it worsens the legal position of the accused. The paper demonstrates the features of the implementation of the so-called “fruit of the poisonous tree” judicial doctrine in Georgian criminal procedural legislation and judicial practice. The lawful implementation of this doctrine is of crucial importance in the process of administering justice with regard to the protection of human rights guaranteed by the Constitution. Based on investigative and judicial practice, the paper also presents the type of inadmissible evidence provided for in Article 72, Part 2 of the Criminal Procedure Code of Georgia, which is obtained legally, but where there is no reasonable doubt regarding its possible replacement, substantial alteration of its characteristics, or the substantial disappearance of traces left on it. Keywords: Inadmissible evidence, exclusion of evidence, judicial doctrine, authenticity of evidence, exclusionary rule of evidence. Introduction In Georgian criminal procedure, the admissibility of evidence is one of the key elements in ensuring a fair trial, since it is through evidence alone that the factual circumstances of a case are established and a final procedural decision is made. In this context, the provision of Article 31(10) of the Constitution of Georgia acquires fundamental importance, according to which evidence obtained in violation of the law has no legal force. The issue of inadmissible evidence was regulated in more detail by the previous Criminal Procedure Code of Georgia, which under Article 111 defined a list of circumstances under which evidence lost its legal force (for example, evidence obtained by an unauthorized person; from a source not provided for by law; in violation of the established legal procedure; as well as through the use of violence, threat, deception, blackmail, humiliation of a person, or other unlawful acts; or obtained from a person who violated the law or who is unable to indicate from which source, where, when, and how the information he/she presents was obtained). The current Criminal Procedure Code of Georgia, under Article 72, compared to the previous regulation, has given the institution of inadmissible evidence a more functional content and has introduced into the legal system an approach characteristic of American criminal procedure law—namely, the judicial doctrine known as the “fruit of the poisonous tree”, which serves as a basis for the exclusion of evidence from criminal proceedings. According to this doctrine, evidence obtained through a substantial violation, as well as other evidence lawfully obtained based on such evidence, is inadmissible and has no legal force if it worsens the legal position of the accused. Although Article 72 formally reflects the basic logic of this doctrine, a number of problematic issues still exist in Georgian legal doctrine and judicial practice, which determine the relevance of this research. In particular, it has not been sufficiently studied how consistently derivative (derivative) evidence is excluded in judicial practice, by what criteria a “substantial violation” is determined, and how this institution is applied in cases where evidence is formally obtained lawfully, yet there is reasonable doubt regarding its authenticity (Article 72(2) of the Criminal Procedure Code). At the same time, the assessment of how this institution is applied in practice in relation to international standards of fair trial—particularly Article 6 of the ECHR and Article 14 of the ICCPR—remains a separate research necessity. It is possible to identify a distinction between the formal transplantation of the doctrine and its effective functional operation in Georgian criminal proceedings. Accordingly, the main research question of the paper is formulated as follows: how effectively and consistently is the “fruit of the poisonous tree” judicial doctrine implemented in Georgian criminal procedural law (within the framework of Article 72 of the Criminal Procedure Code), and to what extent does it ensure the protection of fundamental human rights in judicial practice? The aim of the research is, on the one hand, to determine the practical features of the application of Article 72 of the Criminal Procedure Code of Georgia, and on the other hand, to assess the effectiveness of this norm in relation to the constitutional and international framework of human rights protection. To achieve this aim, the paper sets the following objectives: (1) to analyze the normative content of Article 72; (2) to compare the Georgian model with the U.S. exclusionary rule and the “fruit of the poisonous tree” doctrine; (3) to evaluate judicial practice in terms of how uniformly and predictably inadmissible evidence is excluded. The novelty of the paper lies in the fact that it examines the “fruit of the poisonous tree” doctrine in the Georgian legal context, not merely as a normative transplantation (legal transplant), but as a functional procedural mechanism whose real effectiveness is assessed based on judicial practice. The research particularly focuses on issues that have been relatively under-analyzed in Georgian legal scholarship, including the practical criteria for excluding derivative evidence, the standard defining a “substantial violation”, and the practical significance of reasonable doubt regarding the authenticity of evidence (Article 72(2) of the Criminal Procedure Code). In addition, the paper proposes an evaluative framework that considers the Georgian approach in relation to international human rights standards (ECHR, ICCPR), which gives the research findings broader comparative and international applicability. The practical and theoretical significance of the paper is expressed in the fact that its results represent an assessment of the legal transplantation of exclusionary doctrines in the Georgian context, which creates the possibility that the conclusions drawn may also be applied in other common law systems (e.g., England and Wales), where it is the judge who decides whether a given piece of evidence should be deemed inadmissible. Methodology The paper employs doctrinal and comparative-legal research methods aimed at identifying and assessing the features of the implementation of the “fruit of the poisonous tree” doctrine in Georgian criminal procedural law. The research is based on a normative analysis of Article 31 of the Constitution of Georgia and Article 72 of the Criminal Procedure Code, including an examination of issues such as the inadmissibility of evidence, the exclusion of derivative evidence, and the criteria of evidentiary authenticity. Within the framework of comparative legal analysis, the Georgian regulation is assessed in relation to the exclusionary rule developed in the United States legal system and the “fruit of the poisonous tree” doctrine, with reference to relevant judicial precedents. The paper also relies on the study of Georgian judicial practice, in particular the analysis of the positions of the Supreme Court of Georgia, in order to identify trends in the practical application of Article 72 and the consistency of its use. The international dimension is considered through the integration of human rights protection standards, specifically in the context of Article 6 of the ECHR and Article 14 of the ICCPR, on the basis of which the compliance of Georgian practice is assessed. In forming conclusions, systematic and teleological interpretation methods are applied to evaluate the institution of inadmissible evidence as a mechanism for protecting rights, controlling law enforcement authorities, and ensuring fair criminal proceedings. The research is based on the analytical framework of legal transplants and assesses the effectiveness of the transplantation of exclusionary doctrines in the Georgian context, which makes it possible for the findings to be applied in other common law systems (e.g., England and Wales), where it is solely the judge who decides whether a given piece of evidence is admissible. FINDINGS AND DISCUSSION 1. Comparative-legal aspects of doctrines in the administration of justice 1.1. General Characteristics of the Judicial Doctrine of the “Fruit of the Poisonous Tree” For comparative analysis, it is necessary to conduct a parallel examination of Georgian law with the corresponding doctrine and case law of the United States, specifically by analyzing the model established under Article 72 of the Criminal Procedure Code of Georgia in parallel with the U.S. “fruit of the poisonous tree” doctrine, to identify their similarities, differences, and features of implementation. The judicial doctrine of the “fruit of the poisonous tree” forms part of the exclusionary rule in current U.S. criminal procedural law. The exclusionary rule was first applied by the U.S. Supreme Court in 1914 in Weeks v. United States. The case concerned a violation of the Fourth Amendment by a federal agent, where evidence was obtained through the unlawful seizure of private correspondence. The Supreme Court held that the prosecution must not be based on letters and correspondence unlawfully seized from a person’s home. Subsequently, the scope of the exclusionary rule was expanded, and it was also applied to evidence obtained based on unlawfully acquired information. According to the exclusionary rule, information obtained through an unlawful search, arrest, or coercive interrogation must not be admitted in a criminal case. The “fruit of the poisonous tree” doctrine goes further, establishing that evidence subsequently obtained based on information derived[1] from an unlawful source must also be excluded from criminal case materials. Like the exclusionary rule, the purpose of the “fruit of the poisonous tree” doctrine is to prevent unauthorized searches and other unconstitutional actions. Naturally, unlawful searches conducted by law enforcement agencies result in violations of constitutional rights, such as the right to personal inviolability, property rights, and others. In the United States, human rights are strictly protected by the Constitution, and violations of these rights entail serious consequences.[2] Any violation of the Bill of Rights in criminal proceedings leads to the exclusion of evidence from the criminal case. On this basis, the scope of the exclusionary rule was expanded, and from 1920 the “fruit of the poisonous tree” doctrine became established following the U.S. Supreme Court’s decision in Silverthorne Lumber Co. v. United States. The facts of the case were as follows: Frederick Silverthorne was suspected of violating federal laws in the timber business, and federal agents conducted a search of his office without a valid warrant. Based on the information obtained during this unlawful search, the prosecutor also requested authorization to obtain additional documents, which the court granted. Silverthorne, who did not plead guilty, refused to submit the documents and was subsequently arrested for contempt of court. The case was later brought before the U.S. Supreme Court. The Court held that the search of Silverthorne’s office had been conducted unlawfully; therefore, the prosecution should not have been based on information obtained through that search. The U.S. government argued that it was entitled to make copies of the documents and use the information derived from them for prosecution. The Court rejected this argument and held that, under the exclusionary rule, information obtained unlawfully must not be used at all in criminal proceedings. Silverthorne had sought only the exclusion of the information obtained through the initial unlawful search, but it was precisely this initial act that opened the way for the exclusion of subsequently obtained evidence. Thus, this is a case where an initial investigative action was conducted unlawfully, which led to the invalidation of later legal actions.[3] The purpose of the “fruit of the poisonous tree” doctrine is precisely to ensure that legal consequences do not arise either from the initial unlawful act or from subsequent acts based on it. The term “fruit of the poisonous tree” was first used by U.S. Supreme Court Justice Felix Frankfurter in 1939 to justify the Court’s decision in Nardone v. United States. The essence of the case was as follows: the first-instance court of the United States rendered a guilty verdict against Frank Nardone, finding him guilty of smuggling and concealing alcoholic substances. The primary evidence in the case consisted of information obtained through the interception of telephone conversations. Frank Nardone appealed the verdict to the appellate court on the grounds that the evidence against him had been obtained in violation of the Fourth Amendment of the U.S. Constitution. The appellate court established that, during the interception of Nardone’s telephone conversations, the 1934 Communications Act had been violated. The appellate court overturned the first-instance court’s guilty verdict and emphasized that the defendant had no opportunity to prove that the data used against him constituted the “fruit of the poisonous tree”.[4] This decision subsequently acquired guiding significance for other courts, meaning that if law enforcement agencies obtain evidence through a gross violation of law (i.e., “poisoning the tree”), then evidence obtained based on such material (“the fruit poisoned by the tree”)[5] cannot be used as evidence. It should be noted that under U.S. procedural law, to protect the rights of each citizen, evidence obtained in violation of procedural law is not considered admissible. The necessity of classifying the grounds for admissibility of evidence in the U.S. administration of justice is divided, according to the method of their determination, into two groups: general and special.[6] This division is caused by the influence of the “fruit of the poisonous tree” doctrine, which provides both a basis for the inadmissibility of evidence and a mechanism for restoring the legal force of inadmissible evidence. As noted above, this doctrine originated in the body of U.S. Supreme Court precedent in the 1920s. As stated in a decision of the U.S. Supreme Court: “The essence of the rule prohibiting the obtaining of evidence by certain means is that not only evidence obtained unlawfully may not be used in our courts, but such evidence may not be used at all”.[7] In other words, the “poisonous tree” produces “poisonous fruit”; the acquisition of evidence based on information obtained from inadmissible evidence renders it inadmissible. It should be noted that some American scholars effectively allow the use of the “fruit of the poisonous tree”. As D. Fauver notes, information that was obtained from an improper source (for example, from a person who cannot testify as a witness, or from an expert subject to recusal) and has therefore been deemed inadmissible may, in certain cases, be used in a manner similar to operational intelligence.[8] L. Hurley refers to this doctrine as a postulate of evidentiary law. According to him, the poisoned tree produces poisonous fruit. This postulate, in his view, means that if evidence is obtained unlawfully and its reliability is thereby called into question, then other evidence derived from the examination of the first becomes doubtful and therefore inadmissible. As we can see, he applies this doctrine only when a violation of admissibility conditions calls the reliability of the evidence into question.[9] Accordingly, it is necessary to determine whether there should be a relationship between admissibility and evidentiary reliability here, or whether the “fruit of the poisonous tree” arises in other circumstances, where evidence is deemed inadmissible but affects reliability. Finally, the author’s reference to the “fruit” arising from the examination of the “first” piece of evidence remains unclear. S. McCracken notes that if investigative actions are excluded from the category of admissible procedures, during which physical evidence was seized, then factual data obtained as a result of their examination (for example, in an expert report) must also be declared inadmissible. The exclusionary rule of evidence in the United States became a subject of intense debate starting in the 1980s. It is undisputed that the evidentiary process must be conducted within a strict legal framework; however, its absolute formalization is also unjustified. Due to the emergence of certain problems, exceptions to the “fruit of the poisonous tree” doctrine were established through judicial precedent. Three doctrines limit the legal scope of the “fruit of the poisonous tree” theory: 1. the independent source doctrine; 2. the inevitable discovery doctrine; 3. the attenuation (or purification/mitigation of illegality) doctrine. According to the independent source doctrine, evidence is admissible if it originates from two sources, only one of which is tainted. The independent source doctrine allows the preservation of information in criminal proceedings if the reliability of the information is confirmed. This rule, on the one hand, ensures the legality of evidence, and on the other hand, does not endanger the sufficiency of evidence. There are various legal methods for preserving the legal force of evidence, such as obtaining additional new factual data confirming the circumstances contained in questionable evidence; identifying another source of information containing similar data, etc. In this regard, the case United States v. Akridge is noteworthy, where the independent source doctrine is identified as one of the exceptions, and the following example is given: if the police had an “independent source” for discovering the evidence, such evidence should not be excluded.[10] 1.2 The Inevitable Discovery Doctrine This doctrine establishes the following exception to the exclusionary rule: unlawfully obtained information is admissible if it is established with a high degree of probability that, under normal investigative conditions, the evidence would inevitably have been discovered. However, in such cases, the reliability of the evidence is not actually confirmed. When assessing the admissibility of evidence, a mere assumption of the existence or non-existence of a fact cannot be sufficient, even if such an assumption is highly probable. Any doubt must be resolved in favor of the accused, which is the main legal guarantee of the presumption of innocence.[11] 1.3 The Attenuation (Mitigation of Illegality) Doctrine As for this doctrine, it provides that if the causal connection between the “initial error and the final piece of evidence is weak, the judge may conclude that the error has been forgotten, attenuated, or purged”.[12] 2. Procedural Issues in Judicial Practice According to the judicial doctrine of the “fruit of the poisonous tree”, if a court declares the execution of a search of a person’s residential premises inadmissible, then the firearm seized as a result of that search is also considered inadmissible evidence. Furthermore, if other types of evidence are lawfully obtained based on such inadmissible evidence (for example, witness testimony, etc.), and this worsens the legal position of the accused, all collected evidence in the case is deemed inadmissible and has no legal force. In the practice of Georgian courts, there are examples of the actual application of the discussed doctrine. In particular, in a cassation protest, the prosecutor requested the annulment of an acquittal judgment delivered by a city court in the case of K., on the grounds of substantial violations of the requirements of the Criminal Procedure Code of Georgia. One of these alleged violations, in the prosecutor’s view, was the following: the judge unjustifiably excluded from the case file the search protocol conducted in K.’s office, physical evidence—namely a grenade and two launching devices—and the conclusions of ballistic and explosive expert examinations.[13] The Supreme Court of Georgia upheld the acquittal judgment and stated the following: the arguments presented in the cassation protest by the prosecutor, according to which the judge unjustifiably excluded part of the evidence from the case file, are contrary to the applicable legislation. The judge correctly excluded from the case file such evidence as the search protocol conducted in K.’s office, a hand grenade, two metal objects in the form of pens, which were recognized as firearms, as well as the conclusions of ballistic and explosive-technical expert examinations, since these pieces of evidence had been obtained in violation of the law. The Supreme Court, referring to the violations of the Criminal Procedure Code of Georgia committed during the search in K.’s office, further noted that, given that in the present case the seizure of items was carried out in violation of the law, the judge correctly excluded from the case file both the physical evidence and the expert opinions based on them. In judicial practice, Georgian courts have also issued similar decisions in which a personal search report, during which items were seized from the victim, was declared inadmissible. In fact, the personal search was substituted by an investigative action such as a seizure. In this case, the results of the personal search did not meet the admissibility criterion of proper evidentiary collection methods. In effect, by applying the “fruit of the poisonous tree” doctrine, the court also declared inadmissible an expert opinion containing conclusions on the mechanism of inflicting damage to these items. As can be seen, the court adopted a fully reasoned and lawful decision. It is no secret that theoretical provisions are not always fully reflected in practice. On 26 July 2016, the Criminal Chamber of the Supreme Court of Georgia considered the cassation appeal of the prosecutor of the Gldani–Nadzaladevi District Prosecutor’s Office of Tbilisi against the judgment of the Criminal Chamber of the Tbilisi Court of Appeals of 22 March 2016, according to which G. Z., G. K., and I. T. were charged with having, on 12 December 2014 at 23:50, while travelling in a taxi driven by Z. B. in an “Opel Vectra” vehicle with license plate number ..., by prior agreement and through threats of life-endangering violence, stolen 25 GEL in cash; a car stereo with a monitor; a “Samsung” mobile phone with SIM card ...; an “Osram” round-shaped flashlight; a silver chain; a souvenir dagger with its sheath; and an “Orient” wristwatch. After that, G. K. forced the driver under threat to remove his sleeveless so-called “duty” jacket. Since Z. B. faced a real threat of loss of life and injury, he complied with the demand and removed the jacket, which was worn by I. T. Subsequently, they opened the vehicle’s trunk, where car tools and spare parts were kept, which the members of the criminal group appropriated and divided among themselves. As a result of the criminal act, the victim Z. B. suffered both moral and property damage in the amount of 700 GEL. By the judgment of the Criminal Chamber of the Tbilisi City Court of 2 September 2015, G. Z., G. K., and I. T. were acquitted of the charges brought against them under Article 179(2)(b) and 179(3)(a) of the Criminal Code. Based on the appellate complaint submitted by the prosecutor of the Gldani–Nadzaladevi District Prosecutor’s Office, the Criminal Chamber of the Tbilisi Court of Appeals, by its judgment of 22 March 2016, upheld the decision rendered by the court of first instance. The acquittal judgment of the judicial authorities was based on the finding that the collection of evidence, namely the investigative actions, had been carried out in substantial violation of the law. In particular, according to the case materials, the inspection of the vehicle belonging to the victim Z. B. was conducted on 13 December 2014, between 01:57 and 03:55. The inspection report states that the victim allegedly gave written consent to the inspection of the vehicle and signed it; however, no written consent from the victim for the investigative action was found in the case file. According to the victim Z. B.’s testimony given before the court of first instance, he did not attend the inspection of the vehicle. He also stated that on that day, apart from his interrogation, he did not sign any other document, and during his testimony, the investigator did not show him any additional documents. Furthermore, the victim’s interrogation at the police station took place on 13 December 2014, from 01:00 to 02:00, that is, at the time when the vehicle inspection was being conducted at the scene. In court, the investigator stated that the victim did not attend the inspection of the vehicle, which in turn contradicted the testimony given by the expert in court, according to which the vehicle inspection was conducted in the presence of the victim. At the same time, the vehicle inspection report was drawn up in substantial violation of the requirements of Article 125(2) of the Criminal Procedure Code of Georgia and could not serve as a basis for a guilty verdict. Between 01:57 and 03:55 on 13 December 2014, in the presence of experts, an inspection of the “Opel Vectra” vehicle was conducted, during which samples of odour traces and fingerprints were collected, as well as micro-particle samples from the surface of the vehicle seat. Dactyloscopic and odorological expert examinations were carried out. According to the dactyloscopic expert report, the fingerprint trace obtained was identical to the palm print sample of G. K.’s left hand. According to the odorological expert report, it was established that four odour trace samples taken from the rear seat of the vehicle were identical to the odour samples taken from G. T., G. K., and G. Z. The Criminal Chamber of the Supreme Court of Georgia, by its judgment №251ap–16 of 26 July 2016, upheld the acquittal judgments rendered by the lower court instances. It also, like the first-instance and appellate courts, did not take into account the dactyloscopic and odorological expert reports, which had implicated the defendants in the incriminated acts, and stated that, pursuant to Article 72(1) of the Criminal Procedure Code of Georgia, evidence obtained through a substantial violation, as well as other evidence lawfully obtained based on such evidence, is inadmissible and has no legal force if it worsens the legal position of the accused.[14] In this regard, there is a differing viewpoint. For example, Ia Chkheidze considers the “fruit of the poisonous tree” judicial doctrine to be incorrect. The researcher writes: “Criminal proceedings will only have a claim to objectivity when the case contains objective evidence. In turn, it is impossible even to speak about the objectivity of evidence if the source of this information is unreliable. Therefore, information obtained based on unlawful information must be considered inadmissible evidence, and no exceptions should be allowed, as is established by Article 72 of the Criminal Procedure Code”.[15] It is evident that in criminal proceedings, the admissibility of false, unreliable, or doubtful evidence would simultaneously imply the possibility of imposing liability on an innocent person, which contradicts not only constitutionally guaranteed human rights but also the objectives of criminal prosecution itself. According to Article 72 of the Criminal Procedure Code of Georgia, it is impermissible to confuse evidence with the testimony of the accused, which was given at the investigative stage without a lawyer or even with the participation of a lawyer, and which has not been confirmed either by the case materials or by the accused during interrogation in court. The inadmissibility of the accused’s interrogation at the investigative stage constitutes a special ground, since in this case Article 72 of the Criminal Procedure Code of Georgia does not link such consequences to any violation of a legal norm. During interrogation of the accused, it is possible to comply with all procedural requirements even in the absence of a lawyer, and only due to their non-confirmation in court is the judge obliged to declare such statements inadmissible.[16] Thus, if one follows the “fruit of the poisonous tree” doctrine, then evidence obtained based on inadmissible testimony of the accused and/or other participants in the proceedings must also be declared inadmissible by the court. At the same time, the inadmissibility of testimony in this case should be conditioned by a violation of the norms of the Criminal Procedure Code. This doctrine represents a logical “continuation” of the sanction for procedural violations. A different situation arises with regard to the consequences of excluding the accused’s testimony when such statements are not confirmed during interrogation at trial; this requirement serves as a specific mechanism restraining the investigative authorities from “excessive activity” during the interrogation of the accused. The restraining mechanism here is based on the fact that such “excessive activity” does not produce a favorable result for the prosecution, as the statements will be deemed inadmissible and cannot form the basis of the accusation.[17] It is also important to consider the circumstances specified in Article 72(2) of the Criminal Procedure Code regarding the inadmissibility of evidence that has been obtained in compliance with the procedures established by this Code, but where there is unresolved reasonable doubt concerning its possible substitution, substantial alteration of its characteristics, or the substantial disappearance of traces left on it. This legal norm has exceptionally important practical significance in the field of human rights protection. On 23 April 2014, police officers of the Main Division of the Tbilisi Ministry of Internal Affairs conducted a personal search of Z. G.-shvili, who was accused of murder. The seized items were packaged and sealed. The search protocol recorded the following items: 220 GEL in cash, a “Metromani” card, one bullet, medications, and cigarettes.[18] More than nine months later, during the judicial examination stage, an inspection of the items seized during the personal search of the accused was conducted, during which additional items were discovered, namely a lighter and receipts for the purchase of medication, which had not been recorded in the search protocol at all. Moreover, during the court hearing, the prosecutor presented a sealed and packaged mobile phone to the court and explained that this phone had been seized from the accused Z. G. during a personal search conducted on 26 April 2014, but the investigator had failed to inspect it and include it in the search protocol (the prosecution did not even include the mobile phone in the list of evidence). As it turned out, the mobile phone seized during the search had been stored in the police department for more than nine months, and therefore, there was unresolved reasonable doubt regarding its possible substitution, substantial alteration of its characteristics, or the substantial disappearance of traces on it. For this reason, the judge declared the mobile phone inadmissible as evidence on this basis. According to Article 72(3) of the Criminal Procedure Code of Georgia, the burden of proving the admissibility of prosecution evidence and the inadmissibility of defense evidence lies with the prosecutor; however, the issue of declaring evidence inadmissible is ultimately decided by the court. The court’s decision must be reasoned. For example, by the ruling of the Investigative Chamber of the Tbilisi Court of Appeals of 2 February 2018, the complaint of the defense counsel was upheld. It was established that, during the pre-trial hearing of 25 January 2018, the judge of the Tbilisi City Court granted the prosecution’s motion to declare part of the defense evidence inadmissible, and accordingly excluded from evidence a letter dated 21 September 2017 issued by the National Forensic Bureau named after Levan Samkharauli (XXX), as well as photographic illustrations attached to the inspection report prepared by the defense. The pre-trial judge based the inadmissibility of the defense evidence on the following grounds: (1) the authenticity of the letter XXX of the National Forensic Bureau could not be established, and it was unclear on what basis it had been obtained; (2) although no procedural norms of the Criminal Procedure Code were violated during the inspection, the attachment of photographs to this report constituted a separate new investigative action, thereby violating the requirements of Article 136 of the Criminal Procedure Code. The ruling of the Investigative Chamber of the Court of Appeals indicates that, with regard to the authenticity of evidence, Article 72(2) and (4) of the Criminal Procedure Code of Georgia provides the following: evidence is inadmissible if it has been obtained in compliance with the procedures established by this Code, but there remains unresolved reasonable doubt regarding its possible substitution, substantial alteration of its characteristics, or the substantial disappearance of traces left on it.[19] As follows from the challenged decision, the judge of the pre-trial hearing considered as a questionable circumstance the fact that the case file did not contain, nor was there any preceding application from the lawyer on the basis of which the National Forensic Bureau issued a written response. In this regard, the judge of the Investigative Chamber noted that the letter of the forensic institution was issued based on a lawyer’s application, and this is confirmed by a letter issued on behalf of the Head of the Legal Department of the National Forensic Bureau, which, in addition to the content of the application, also indicates its registration number. The judge of the Investigative Chamber concluded that the absence of a copy of the lawyer’s application does not deprive the disputed letter of its authentic character and legal force, since its origin is known and reasonable doubt regarding its possible substitution, substantial alteration of its characteristics, or the substantial disappearance of traces on it has been excluded. As for the inspection report prepared by the lawyer and the attached photographs, the judge of the Investigative Chamber explained that inspection is an investigative action which, in this case, was conducted by the defense in order to clarify circumstances relevant to the case. Moreover, Article 126(3) of the Criminal Procedure Code of Georgia allows inspection to be conducted using technical means, provided that this does not lead to the destruction or damage of an object, document, substance, or other item of information, or traces existing on it. Criminal procedural law considers the use of technical means during investigative actions as an integral and inseparable component of the investigative act carried out to obtain evidence, serving as a means of better recording facts and events and presenting them clearly to the court and the parties. In this case, photographing does not constitute an independent investigative or procedural action; rather, it is an integral part of the inspection protocol and visually reflects what is described in written form in the protocol. The judge clarified that, in the present case, the photographing carried out during the inspection is fundamentally different in both substance and procedural form from the regulations under Article 136 of the Criminal Procedure Code concerning the retrieval of documents or information. The retrieval of a document or information is the direct acquisition, for a criminal case, of information or documents that are stored in computer systems or electronic data storage media.[20] In the procedural law of the United States, separate rules are established for each type of evidence regarding its classification and admissibility. In general, these rules constitute the majority of legal provisions governing proof in criminal proceedings. For example, as a general rule, hearsay evidence is considered inadmissible, since it refers to testimony that is not based on the witness’s direct perception of facts and events but is obtained from other sources (for example, from eyewitnesses). Long-standing experience has shown that such testimony carries a high probability of error. Nevertheless, under certain conditions, such evidence is still admissible in U.S. criminal proceedings—for example, statements made by a dying person regarding the cause of death and the circumstances of the criminal act causing it, provided that the declarant had no hope of survival.[21] Many other exceptions are also provided in evidence law, as well as in other provisions. These exceptions are often indeterminate, which creates conditions for broad judicial discretion in decision-making by judges and in instructing juries. This phenomenon is further illustrated by the provisions set out in Rules 402 and 403 of the Uniform Rules of Evidence. The first of these contains a general provision: “All relevant evidence is admissible, except as otherwise provided by law, by these rules, or by other rules applied by state courts. Evidence that is not relevant is inadmissible”. The second rule establishes a broad exception: “Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or considerations of undue delay, waste of time, or needless presentation of cumulative evidence”. Exceptions also characterize provisions concerning the admissibility of the defendant’s statements, regardless of whether he has pleaded guilty. For example, statements made in sleep are considered inadmissible evidence. Likewise, a statement that another person has already confessed to the commission of the crime cannot be treated as evidence; that person must be summoned and examined in court. Statements and confessions made by the accused outside the proceedings, or by a third person acting on his behalf, may under certain circumstances be used in court as evidence against the accused. Historically, in England, evidentiary law was not regarded as an instrument for ensuring individual rights. Its main purpose was to establish rules of proof that would allow the exclusion or non-admission of doubtful evidence from proceedings. From the perspective of English judges, if evidence does not raise doubt (even if obtained in violation of procedure) and fulfils its procedural function related to establishing the facts of the case to reach a fair judgment, there is no reason to exclude such evidence. According to a common English interpretation, the key characteristics of evidence are not admissibility but relevance and reliability. This is also due to the fact that in English criminal proceedings, the institution of preliminary investigation has never existed, meaning that there was no formally regulated activity of state bodies concerning the collection of evidence prior to court proceedings. It therefore follows logically that if the procedure of evidence collection is not regulated before or outside the trial, it cannot be violated. Here, direct analogies with civil procedure can be observed: for example, a document, even if it appears doubtful, does not prevent its use by the claimant. The growing judicial interest in the procedures of evidence collection, and not only its examination and evaluation, has become particularly evident in recent years, as the legislator has changed its approach to pre-trial investigation, which is gradually becoming a full-fledged stage of English criminal proceedings. This is reflected in the Police and Criminal Evidence Act 1984, which regulates in considerable detail the procedural actions of the police during pre-trial proceedings, addressing compliance with or violation of the law in the collection of evidence and, consequently, judicial control over such actions. One of the elements of such control is the court’s assessment of evidence obtained in violation of the law. In legal literature, the view has been expressed that any procedural violation—i.e., any collection and examination of evidence in disregard of procedural law provisions—inevitably leads to the loss of evidentiary force, and therefore, such evidence must in all cases be declared inadmissible. There is also another viewpoint, according to which, if the body conducting the proceedings has violated not the general principles of criminal procedural law, but rather a specific procedural norm whose correction is possible and whose violation cannot affect the equality of the parties and the adversarial principle, the court may decide not to declare such evidence inadmissible. For example, during the interrogation of a witness, the person was not informed that they had the right not to testify against themselves or their close relatives; however, the witness later stated that this omission did not influence the testimony they gave. According to the authors, such evidence may be considered admissible.[22] We share this latter view and consider that, if a non-substantial procedural violation is committed during the proceedings, the court should have the right not to declare the obtained evidence inadmissible (unlawful).[23] For instance, if a person under the age of 14 was present at the court hearing, this constitutes a procedural violation (Article 182(8) of the Criminal Procedure Code of Georgia), but this violation is so minor that the evidence examined during that period in court should not be considered inadmissible. The same approach should apply in cases where, during the interrogation of a witness, the investigator omitted to indicate the place where the investigative action was conducted, and so on. Conversely, if evidence is obtained in substantial violation of procedural law—for example, if the accused’s confession was obtained through beating, torture, blackmail, or other unlawful methods—such evidence must be considered inadmissible and has no procedural force whatsoever. The doctrine discussed is not merely a theoretical model. It is effectively recognized by Georgian courts and should be applied in all criminal cases. Of course, the introduction and establishment of the “fruit of the poisonous tree” doctrine in the Criminal Procedure Code requires detailed elaboration and a careful approach to the formulation of the relevant legal norms. Conclusion Thus, the admissibility of evidence presupposes compliance with numerous rules established by law. Only strictly defined procedural regulations should ensure that information is granted evidentiary force; otherwise, it has no significance for criminal proceedings. Moreover, the admissibility of evidence also implies the granting of legal force to information that is relevant to the case. “Legal force” in criminal proceedings refers to the possibility of using information in a case, establishing relevant factual circumstances through it, and making procedural decisions on that basis. If information is not properly incorporated into procedural form and does not acquire the status of evidence, it has no legal force and will be considered inadmissible evidence; through it, no procedural decision can be made, and its use in criminal proceedings is excluded. As the study of investigative and judicial practice has shown, the judicial doctrine of the “fruit of the poisonous tree”, which has already been implemented in Georgian procedural law from the criminal procedural legislation of the United States, represents one of the most important guarantees of human rights protection in practice. Naturally, this requires further theoretical research and continued analysis of investigative and judicial practice. References Scientific literature: Chkheidze, I. (2010). The Problem of Admissibility of Evidence in Criminal Proceedings. “Meridiani” Publishing, Tbilisi. (in Georgian); Cole, G., Smith, D. (2010). Criminal justice in America (6th edition). Wadsworth Publishing; Langer, M. (2004). From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, Vol. 45, №1; McCrackin, S. (1985). New York v. Quarles: The Public Safety Exception to Miranda. Tulane Law Review 59; Oshkhareli, M. (2010). Proof and Evidence in Criminal Proceedings. Dissertation for the Academic Degree of Doctor of Law. Tbilisi State University of Economic Relations, Tbilisi. (In Georgian); Pradel, J. (1999). Comparative Criminal Law. Sani Publishing, Tbilisi. (Transl.). (In Georgian); Tumanishvili, G. (2014). Review of the General Part of Criminal Proceedings, “World of Lawyers’” Publishing. (In Georgian). Normative act: Criminal Procedure Code of Georgia. (2009). <https://matsne.gov.ge/ka/document/view/90034?publication=157>; Police and Criminal Evidence Act of the UK. (1984). <https://www.legislation.gov.uk/ukpga/1984/60/contents>. Court decisions: Criminal case against Z. G. Case No. 616230414001; Nardone v. United States. (1939). 308 U.S. 338; Silverthorne Lumber Co., Inc. v. United States. (1920). 251 U.S. 385. <https://supreme.justia. com/cases/ federal/us/ 251/385/>; Supreme Court of Georgia. (2016). Decisions of the Supreme Court of Georgia on Criminal Cases, Criminal Procedure 7-9; Tbilisi Court of Appeal. Ruling of the Investigative Panel of the Tbilisi Court of Appeal, Case No. SG 133-18; United States of America (Plaintiff-appellee) v. Stephen D. Akridge (Defendant-appellant). (2003). 346 F.3d 618 (6th Cir.). <https://law.justia.com/cases/federal/appellate-courts/F3/346/618/510756/>; Weeks v. United States. (1914). 232 U.S. 383. <https://supreme.justia.com/cases/federal/us/ 232/383/>; Supplementary materials: Fauver, D. (14.11.2003). Evidence Not Suppressed Despite Failure to Give Miranda Warning. The Daily Record (St. Louis, Mo./St. Louis Countian); Hurley, L. (02.06.2003). Reversal Leaves Federal Case Intact, Prosecutor Says. The Daily Record (Baltimore, Md.). Footnotes [1] Weeks v. United States. (1914). 232 U.S. 383. <https://supreme.justia.com/cases/federal/us/ 232/383/>. [2] Silverthorne Lumber Co., Inc. v. United States. (1920). 251 U.S. 385. <https://supreme.justia. com/cases/ federal/us/ 251/385/>. [3] Chkheidze, I. (2010). The Problem of Admissibility of Evidence in Criminal Proceedings. “Meridiani” Publishing, Tbilisi, pp. 71-72. [4] Oshkhareli, M. (2010). Proof and Evidence in Criminal Proceedings. Dissertation for the Academic Degree of Doctor of Law. Tbilisi State University of Economic Relations, Tbilisi, p. 57. (In Georgian); Tumanishvili, G. (2014). Review of the General Part of Criminal Proceedings, “World of Lawyers’” Publishing, pp. 299-302. (In Georgian). [5] “Fruit of the poisonous tree” doctrine. (See Nardone v. United States. (1939). 308 U.S. 338). [6] Silverthorne Lumber Co. v. United States. (1920). 251 U.S. 385, 392; Nardone v. United States. (1939). 308 U.S. 338. [7] Fauver, D. (14.11.2003). Evidence Not Suppressed Despite Failure to Give Miranda Warning. The Daily Record (St. Louis, Mo./St. Louis Countian). [8] Hurley, L. (02.06.2003). Reversal Leaves Federal Case Intact, Prosecutor Says. The Daily Record (Baltimore, Md.). [9] McCrackin, S. (1985). New York v. Quarles: The Public Safety Exception to Miranda. Tulane Law Review 59. [10]United States of America (Plaintiff-appellee) v. Stephen D. Akridge (Defendant-appellant). (2003). 346 F.3d 618 (6th Cir.). <https://law.justia.com/cases/federal/appellate-courts/F3/346/618/510756/>. [11] Chkheidze, I. (2010). The Problem of Admissibility of Evidence in the Criminal Process. “MeriDiani” Publishing, Tbilisi, pp. 74-75. (In Georgian). [12] Pradel, J. (1999). Comparative Criminal Law. Sani Publishing, Tbilisi, pp. 319-320 (Transl.). (In Georgian). [13] Criminal case against Z. G. Case No. 616230414001. [14] Supreme Court of Georgia. (2016). Decisions of the Supreme Court of Georgia on Criminal Cases, Criminal Procedure 7-9, pp. 28–42. [15] Chkheidze I. (2010). The Problem of Admissibility of Evidence in Criminal Proceedings. “Meridiani” Publishing, Tbilisi, p. 200. (In Georgian). [16] McCrackin, S. (1985). New York v. Quarles: The Public Safety Exception to Miranda. Tulane Law Review 59. [17] Criminal case against Z. G. Case No. 616230414001. [18] Ibid. [19] Tbilisi Court of Appeal. Ruling of the Investigative Panel of the Tbilisi Court of Appeal, Case No. SG 133-18. <www.tbappel.court.ge>. [20] Police and Criminal Evidence Act of the UK. (1984). <https://www.legislation.gov.uk/ukpga/1984/60/contents>. [21] Ibid. [22] Cole, G., Smith, D. (2010). Criminal justice in America (6th edition). Wadsworth Publishing, p. 32. [23] Langer, M. (2004). From Legal Transplants to Legal Translations: The Globalization of Plea Bargaining and the Americanization Thesis in Criminal Procedure, Vol. 45, №1, рр.1-64.
Legal and Social Reality Analysis of Same-Sex Marriage in Indonesia and Thailand
Marriage, as a fundamental institution, plays an important role in determining civil rights and the legal status of citizens; therefore, its regulation reflects social, cultural, and religious values, as well as human rights principles. This study aims to compare the legal regulation of same-sex marriage in Thailand by examining the absence of legal recognition of same-sex marriage in Indonesia and assessing how social and cultural realities influence the acceptance and effectiveness of law in both countries. This research employs a normative juridical method, using statutory and conceptual approaches, by examining Law Number 1 of 1974 and Constitutional Court decisions in Indonesia, as well as the Marriage Equality Act 2025 and the Civil and Commercial Code in Thailand. The findings show that Indonesia explicitly limits marriage to heterosexual relationships based on the first principle of Pancasila, namely “Belief in the One and Only God”, thereby providing no legal recognition or civil rights for same-sex couples, including inheritance rights, marital property rights, and administrative protection. In contrast, Thailand provides full legal recognition of same-sex marriage through progressive legal reform, guaranteeing equal rights in civil registration, inheritance, social security, and adoption, although challenges in administrative implementation remain. Comparatively, the effectiveness of same-sex marriage regulation is strongly influenced by the level of social acceptance: Indonesia is shaped by Pancasila, which emphasizes morality, religion, and culture, whereas Thailand demonstrates that social openness is a key factor in the successful implementation of legal reform. Keywords: Same-Sex marriage, legal comparison, human rights. Introduction Background of the Study Marriage is universally understood as a core institution that forms the basic unit of society, namely the family, which is in accordance with Article 28B paragraph (1) of the 1945 Constitution of the Republic of Indonesia. Therefore, the regulation and legal recognition of the institution of marriage must be implemented based on the principles of legal certainty and equality before the law as guaranteed under Article 28D and Article 28I paragraph (2) of the 1945 Constitution of the Republic of Indonesia.[1] In many legal systems, marriage carries various rights and obligations such as inheritance, family recognition, child custody, and the legal status of partners before the state and society. How a country defines and regulates marriage reflects its position on social, cultural, and religious values, and the civil rights of its citizens. In Indonesia, the primary regulation governing marriage is Law No. 1 of 1974 on Marriage.[2] Article 1 defines marriage as a physical and spiritual bond between a man and a woman as husband and wife, with the purpose of forming a happy and eternal family based on the Almighty God.[3] Article 2 further stipulates that a marriage is valid when performed according to the religious laws and beliefs of each party and recorded in accordance with statutory regulations.[4] This framework explicitly restricts the definition of marriage to heterosexual couples. As a result, same-sex marriage is not legally recognized in Indonesia, and any attempt to register or recognize such unions, whether domestic or foreign, does not meet the normative requirements of the Marriage Law. Consequently, same-sex couples face legal uncertainty in fundamental matters such as civil rights, inheritance, partner recognition, child-related rights, civil registration, and legal protection. This situation reveals a gap between universal human rights principles, including the right to form a family and the right to privacy, and Indonesia’s positive law. Several human rights arguments emphasize that every individual has the right to determine their orientation and form a family without discrimination. Several human rights perspectives emphasize that every individual has the right to determine their sexual orientation and form a family without discrimination.[5] The principles of equality and non-discrimination, which form the core of human rights, position every individual, including those from the LGBT community as equal legal subjects. According to the report “Being LGBT in Asia: A Participatory Review and Analysis of the Legal and Social Environment for LGBT Civil Society” by the United Nations Development Programme UNDP in collaboration with the United States Agency for International Development USAID, it provides an important contribution to understanding the realities of LGBT life in the Asian region.[6] By reviewing the human rights situation of LGBT communities in certain Asian countries, UNDP and USAID aim to strengthen the capacity of LGBT civil society, raise public awareness, and provide evidence-based recommendations to governments and other stakeholders. These efforts affirm that the protection and promotion of LGBT rights are an integral part of the sustainable development, democracy, and social justice agenda. In the Southeast Asian context, legal developments in other countries show contrasting progress. Thailand’s Marriage Equality Act 2025, effective since January 2025, makes Thailand the first country in Southeast Asia to legalize same-sex marriage. The regulation replaces gender-specific terms such as husband and wife with gender-neutral terms such as spouse or partner, allowing same-sex couples to obtain full legal status and rights equal to heterosexual couples.[7] These rights include marriage registration, property division, inheritance, social security benefits, joint adoption, and socio-legal recognition of partnerships. This highlights a sharp contrast between two countries with different cultural and legal systems. Indonesia maintains a traditional and normative definition of marriage, while Thailand adapts its legal framework to the evolving realities of diverse identities and sexual orientations within society. These differences are not only legal but also involve cultural, social, moral, religious, and societal norms.[8] Social realities in each country present unique challenges. In Indonesia, religious and cultural norms play a very strong role as an inseparable part of Pancasila as the national ideology, particularly the first principle, “Belief in the One and Only God”, in shaping public perceptions of sexual orientation and family structure.[9] Consequently, same-sex marriage is often considered a sensitive issue and faces widespread rejection, as none of the religions recognized in Indonesia permit same-sex marriage, which ultimately leads to social stigma, discrimination, and legal exclusion of LGBTQ+ communities.[10] In Thailand, although the law has changed, social acceptance remains an ongoing process. Legal reform does not automatically ensure uniform implementation across all societal and institutional levels. Moreover, despite legal permission for adoption, specific regulations governing joint adoption by same-sex couples remain unclear, creating further legal and social ambiguity.[11] In many countries, the recognition of same-sex relationships continues to generate legal, social, and moral tensions. In regions with strong religious and conservative cultural values, same sex marriage remains largely unrecognized and is often opposed on the grounds of morality, religion, or public order.[12] This situation reflects a broader global dynamic between the development of human rights norms and deeply rooted societal values. Given these circumstances, this research becomes particularly relevant. A comparative study of positive law and social realities regarding same-sex marriage in Indonesia and Thailand not only reveals regulatory and formal legal aspects but also explains how social, cultural, and religious norms influence legal implementation and the lived experiences of same-sex couples. This analysis is expected to offer a comprehensive picture of the challenges, opportunities, and policy implications related to human rights protection, equality, and inclusivity in both countries. The findings of this study are expected to contribute to the development of legal scholarship, particularly in relation to the comparative analysis of same-sex marriage regulation in Thailand and the absence of legal regulation in Indonesia. Accordingly, this analysis may enrich the understanding of the dynamics of legal regulation within different social and cultural contexts, including Thailand’s experience, which can be viewed as a comparative reference while still taking into account the distinctive cultural characteristics of Indonesia. A relevant previous study titled “Perkawinan Sesama Jenis Perspektif Hukum Indonesia dan Hukum Thailand” by Difa Fibra Aisyah and Muhammad Teguh Syuhada discusses legal comparisons of same-sex marriage in Indonesia and Thailand with an emphasis on legal policy and its impact on future generations. The study is doctrinal in nature, as its emphasis is primarily on the applicable legal policies and their impact on future generations, without examining in depth the role of social and cultural norms or the implementation of laws in the daily lives of same-sex couples. However, the study lacks a deeper analysis of the role of social and cultural norms and the implementation of laws in the daily lives of same-sex couples. This research expands the discussion by analyzing the interaction between positive law and social realities, offering a more comprehensive perspective on challenges, opportunities, and policy implications for human rights protection and inclusivity. Accordingly, the study on the “Legal and Social Reality Analysis of Same-Sex Marriage in Indonesia and Thailand” becomes significant, as it aims to provide a comprehensive juridical analysis and offer substantive contributions to the development of family law and human rights discourse in Indonesia. Research Problem Considering the foregoing background, this study may be formulated into the following two principal research questions: How do the positive laws of Indonesia and Thailand regulate same-sex marriage and their implications for protecting the rights of couples? How do social and cultural realities influence the acceptance and practice of same-sex marriage in both countries and affect legal effectiveness? Purpose of the Study Based on the issues that have been identified, the objectives of this study may be formulated to include both academic and practical aims, namely: To analyze and compare how the positive laws of Indonesia and Thailand regulate same-sex marriage, including their legal implications for the protection of the rights of same-sex couples in each country. To examine how social and cultural realities influence the acceptance and practice of same-sex marriage in Indonesia and Thailand, as well as their impact on the effectiveness of legal regulations governing such relationships. Methodology This research employs a normative juridical method aimed at examining and identifying legal norms, principles, and statutory provisions that form the basis for analyzing legal issues related to the regulation of same-sex marriage in Indonesia and Thailand. The primary focus of the study is to understand how the positive laws in both countries regulate the legal status of same-sex marriage and the implications for the protection of couples’ rights, including civil registration, inheritance, family status, and civil recognition. The research applies a conceptual approach and a statutory approach. The conceptual approach is used to discuss principles of equality, human rights protection, and the social realities that influence the formation and implementation of laws relating to same-sex marriage.[13] The statutory approach is used to examine relevant legal instruments, such as Law Number 1 of 1974 on Marriage and the decisions of the Constitutional Court in Indonesia, as well as the Marriage Equality Act 2025 and the Civil and Commercial Code in Thailand. The data collection method used in this study is library research by reviewing, recording, and analyzing various written sources, including legislation, academic literature, journals, and previous research findings.[14] Findings and Discussion 1. The Regulation of Same-Sex Marriage under the Positive Laws of Indonesia and Thailand and Its Implications for the Protection of Couples’ Rights The regulation of same-sex marriage reflects fundamental differences between Indonesia and Thailand, both in terms of the legal definition of marriage, the mechanisms of state recognition, and the legal consequences accessible to couples.[15] In Indonesia, the primary legal framework governing marriage is Law Number 1 of 1974 on Marriage. Article 1 of the Law explicitly defines marriage as a physical and spiritual bond between a man and a woman. This definition is not merely administrative but embodies Indonesia’s legal philosophy, which places religious and moral values as the core foundation of the marriage institution. This provision is reinforced by Article 2, which requires that a marriage is valid only if conducted according to the religious laws of the parties, a condition that in practice only recognizes heterosexual marriage, as no major religion in Indonesia authorizes same-sex unions. Consequently, religious doctrine becomes a dual filter that strictly limits marriage to the union of a man and a woman.[16] This restrictive stance has been reinforced through the jurisprudence of the Constitutional Court in Decision No. 46/PUU-XIV/2016 on the definition of legitimate children and Decision No. 24/PUU-XX/2022 concerning the petition to expand the meaning of “husband and wife”, the Court consistently affirmed that same-sex marriage is incompatible with the values of Pancasila, public morality, and national identity. The Court argued that expanding the definition of marriage or spousal relationships falls outside its authority, as such matters belong to the legislative domain.[17] These decisions solidify a heteronormative understanding of marriage and close the door to any constitutional interpretation that would recognize same-sex relationships. As a result, same-sex couples in Indonesia do not have a legally recognized family status. Family status can only arise between a man and a woman after entering into a valid marriage as stipulated in Law No. 1 of 1974 concerning Marriage, particularly Article 1, which defines marriage as a physical and spiritual bond between a man and a woman as husband and wife to form a happy and everlasting family (household) based on the belief in the One and Only God. This provision confirms that marriage is only recognized in heterosexual relationships, thereby giving rise to legal consequences in the form of state-recognized rights and obligations.[18] This condition results in same-sex couples lacking access to essential civil and administrative rights, such as automatic inheritance rights, joint property ownership, authority in medical decision-making, joint adoption, civil registration, and eligibility for social security benefits, including family protection within the national health insurance system, pension benefits, and employment social security programs.[19] In the framework of international law, particularly referring to Article 1(1) of the International Covenant on Civil and Political Rights (ICCPR), every state has the right to self-determination, including the authority to determine legal policies in accordance with its social values, cultural context, and legal system, provided that human rights are respected.[20] In the Indonesian context, the regulation of marriage reflects the implementation of this principle by taking into account the religious and cultural values living within society, in line with the first principle of Pancasila. In practice, the state does not discriminate against the fundamental rights of its citizens, but rather stipulates that the validity of marriage must comply with applicable legal requirements, including the recognition of marriage as a union between a man and a woman as husband and wife, as well as adherence to the religion embraced by the parties. Accordingly, the absence of legal recognition of same-sex marriage is not viewed as a restriction imposed by the state, but rather as a consequence of the requirements for a valid marriage derived from religious norms and the first principle of Pancasila, which form part of the national legal system.[21] In this regard, the state would, in principle, provide legal recognition and legitimacy should there be religious norms acknowledged within the Indonesian legal system that allow for such arrangements, thereby ensuring that the legal construction of marriage remains within the boundaries of prevailing constitutional, social, and religious values.[22] In contrast, Thailand has taken a progressive step through significant legal reforms with the enactment of the Marriage Equality Act 2025, amending the Civil and Commercial Code to ensure equal rights for all citizens regardless of sexual orientation. This reform is not merely symbolic; it restructures the normative framework of Thai family law by removing gendered terms such as “husband and wife” and replacing them with the gender-neutral term “spouses”.[23] This terminological shift carries broad legal implications as it grants same-sex couples equal access to the marriage institution, which was previously heteronormative.[24] Thailand has therefore reframed sexual orientation from a moral issue into a domain of civil rights protected by the state. Legal recognition under this regulation brings comprehensive rights to same-sex couples that were previously unattainable within the legal system. Through the Marriage Equality Act 2025, same-sex spouses now enjoy equal rights in civil registration, joint property ownership, automatic inheritance without requiring special arrangements, access to insurance and state social welfare benefits, and full recognition of joint adoption. With these guarantees, Thailand becomes the first country in Southeast Asia to provide full legal protection for same-sex couples, demonstrating how alignment with international human rights principles can coexist with domestic legal reform.[25] This policy shift strengthens the state’s legitimacy in ensuring equality and shows a strong commitment to non-discriminatory legal protections. This comparison illustrates that Thailand has integrated principles of gender equality and sexual diversity into its civil law system; meanwhile, Indonesia maintains a normative legal framework that is deeply rooted in the first principle of Pancasila, “Belief in the One and Only God”. In terms of legal implications, same-sex couples in Thailand obtain legal certainty and state protection, whereas in Indonesia, they do not have legal recognition as a family unit and therefore do not enjoy the fundamental rights attached to the institution of marriage.[26] 2. The Influence of Social and Cultural Realities on the Acceptance and Practice of Same-Sex Marriage in Indonesia and Thailand and Its Impact on Legal Effectiveness Social and cultural realities play a decisive role in shaping how society understands sexual orientation and in defining the boundaries of acceptance toward same-sex couples. In Indonesia, the social structure is strongly influenced by religious and cultural values rooted in the first principle of Pancasila as the nation’s ideology, namely “Belief in the One and Only God”, which places heterosexual marriage as the only form of family considered legitimate, normal, and moral.[27] Because the validity of marriage is determined by religious law, religious values are deeply integrated into the collective beliefs of society. As a result, sexual orientation is not viewed merely as a private matter, but also as a public moral issue. This condition forms a societal opinion that generally rejects the existence of same-sex couples and places them in an unequal position. Social stigma, discrimination, and potential violence often occur even before any legal process takes place, meaning that same-sex couples face social rejection prior to obtaining access to legal protection.[28] This social reality further reinforces the national legal framework, which maintains a strictly heterosexual definition of marriage. These social conditions also influence the legal–political dynamics in the formulation of state policies. The influence of religious groups, political elites, and cultural authorities makes efforts to advance reforms concerning the recognition of same-sex couples difficult to promote, both through legislative processes and judicial decisions.[29] Law enforcement officials and policymakers tend to maintain existing norms as they operate within a social environment that strongly adheres to conservative views on marriage and the family. As a result, the effectiveness of positive law becomes closely tied to traditional values that do not provide space for normative change.[30] In this context, the relationship between legal development and social dynamics is mutually influential, where changes in the legal framework may be shaped by prevailing social values, while at the same time, legal developments also contribute to shaping societal perspectives. The social dynamics in Thailand show a more adaptive and inclusive tendency toward diverse sexual orientations. Although conservative groups still exist, Thai culture has long demonstrated flexibility toward varied gender identities and sexual expressions. LGBTQ+ representation is visible in everyday life through the entertainment industry, popular media, cabaret performances, and creative economic sectors, which together create safer and more supportive social spaces.[31] This visibility increases public familiarity with LGBTQ+ individuals and builds societal understanding that gender diversity is a natural part of social life. Social resistance to the recognition of same-sex couples is therefore less pronounced compared to countries with strongly conservative cultures.[32] This relatively open social reality forms an important foundation for legal reform because social norms evolved before legal norms were formalized.[33] These supportive social conditions directly influence political dynamics and legislative policymaking in Thailand. When the Marriage Equality Act was enacted, public acceptance had already been shaped through long-term social interaction, allowing the legislative process to gain stronger societal legitimacy.[34] However, legal recognition alone does not resolve all challenges. Administrative inconsistencies remain, especially in public services such as civil registration, adoption procedures, identity documents, and access to state services.[35] Some government institutions still require procedural adjustments and human resource training to ensure implementation that aligns with equality principles established in the new law.[36] This shows that although Thailand has made significant progress in recognizing same-sex marriage, achieving full equality requires time, social adaptation, and stronger administrative frameworks that respond to legal reform. The impact of social reality on the effectiveness of law in both countries becomes evident when examined through the issue of same-sex marriage. In Indonesia, conservative social norms and strong religious values rooted in the first principle of Pancasila shape the perception that marriage can only take place between a man and a woman.[37] This dominant belief fosters resistance to the recognition of sexual orientation diversity, making proposals to amend marriage legislation difficult to advance, as they are often viewed as conflicting with prevailing social morality. Consequently, lawmakers tend to maintain existing regulations, as they are considered to reflect the majority view of society, which upholds traditional values.[38] As a result, national law continues to exclude the recognition of same-sex marriage, despite a growing global trend toward the protection of LGBTQ+ rights. Thailand, on the other hand, benefits from a more supportive social environment that enhances the effectiveness of its legal recognition of same-sex marriage. Growing social acceptance through popular culture, the arts, and public representation has made Thai society more familiar with diverse gender identities. This creates relatively safe social spaces for LGBTQ+ individuals and increases political responsiveness to their legal needs.[39] When the Marriage Equality Act was passed, public support had already created the social legitimacy necessary for successful implementation. By contrast, the primary challenge in countries that reject same-sex marriage lies in limited social acceptance. This condition is not unique to Indonesia but is also evident in other countries with similar social and religious characteristics, where resistance to LGBTQ+ rights is driven largely by prevailing societal attitudes rather than legal factors alone. Such conditions may create challenges in the implementation of equality and non-discrimination principles as emphasized in the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), which encourages states to eliminate discriminatory treatment within social and legal structures.[40] Nevertheless, Thailand continues to face administrative challenges such as adapting civil registration systems, adjusting public service procedures, and harmonizing policies across institutions.[41] These differences in culture, religion, and social construction are important comparative factors that determine the direction of legal development. Societies with open social norms tend to allow the law to evolve alongside social progress, while societies dominated by traditional values hinder legal transformation. This shows that the effectiveness of law depends not only on the substance of regulation but also on the social legitimacy and acceptance that support its implementation in everyday life. Conclusion The comparison of same-sex marriage regulation in Indonesia and Thailand shows that the effectiveness of law is strongly influenced by the interaction between normative frameworks, social values, and the cultural context of each country. In Indonesia, the marriage regulation under Law Number 1 of 1974 concerning Marriage reflects the values living within society and the principle of divinity in the first principle of Pancasila, namely “Belief in the One and Only God”, which serves as an important basis in the formation of family law norms. These values form a construction of marriage understood as a union between a man and a woman, so that the existing legal regulation remains within the framework of religious and moral values widely embraced in society. Meanwhile, Thailand shows a different approach through legal reform that leads to the recognition of equal rights in marriage without discrimination based on sexual orientation. This change reflects the adaptation of law to more inclusive social dynamics, so that law develops along with increasing societal acceptance of sexual diversity. From a comparative perspective, the effectiveness of law is not only determined by legal norms, but also by the extent to which those norms obtain social legitimacy and conformity with values that exist in society. In Indonesia, family law is strongly influenced by the principle of divinity in the first principle of Pancasila, so legal development always considers dominant moral, religious, and cultural values. Meanwhile, in Thailand, high social acceptance of gender diversity supported by popular culture, arts, and public representation creates a more inclusive social environment that makes the enactment of the Marriage Equality Act obtain strong social legitimacy, and its implementation becomes more effective. Authors’ Contributions Made Yussyta Wulandani conceptualized the research, formulated the legal issues, designed the methodology, collected and analyzed the legal materials, conducted the comparative and socio-legal analysis, interpreted the findings, and prepared the initial manuscript draft. A.A. Istri Eka Krisna Yanti contributed to the analysis of marriage law aspects, participated in the development of the socio-legal framework, assisted in the interpretation of legal findings, and contributed to the refinement of the manuscript. 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Normative acts: Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), 1979. (relevant for gender equality in marriage); Undang-Undang Dasar Negara Republik Indonesia Tahun 1945 Indonesia. The 1945 Constitution of the Republic of Indonesia (Article 28B paragraph (1), Article 28D, Article 28I paragraph (2)); Indonesia. Law Number 1 of 1974 concerning Marriage; International Covenant on Civil and Political Rights (ICCPR), 1966; Constitutional Court of the Republic of Indonesia. Constitutional Court Decision No. 46/PUU-VIII/2010 (status of children born outside marriage, relevant to family law issues). Constitutional Court of the Republic of Indonesia. Constitutional Court Decision No. 68/PUU-XII/2014 (interpretation of morality norms). Thailand. Marriage Equality Act B.E. 2567 (2024/2025). Thailand. Civil and Commercial Code. United Nations. Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). Footnotes [1] Priscyllia, F. (2022). Same-sex marriage in the perspective of natural law in Indonesia. Jatiswara, 37(2), 152–162. [2] Tim BIP. (2017). Law of the Republic of Indonesia Number 1 of 1974 on Marriage. Bhuana Ilmu Populer. [3] Puniman, A. (2018). Marriage law under Islamic law and Law No. 1 of 1974. Yustitia Journal, 19(1). [4] Sanger, J. P. (2015). The legal consequences of a valid marriage based on Article 2 of Law No. 1 of 1974 on Marriage. Lex Administratum, 3(6). [5] Manik, T. S. et al. (2021). Eksistensi LGBT di Indonesia dalam kajian perspektif HAM, agama, dan Pancasila. Jurnal Kewarganegaraan, 18(2), 84–91. <https://doi.org/10.24114/jk.v18i2.23639>. [6] USAID. (n.d.). Being LGBT in Asia: A participatory review and analysis of the legal and social environment for LGBT civil society. [7] Wong, E. M. Y. (2025). Same-sex marriage legislation and implementation: Marital intention and barriers to actualization among same-sex couples in Asia. Journal of Marriage and Family, 87(4), 1407–1432. <https://doi.org/10.1111/jomf.13018>. [8] Zagoto, Y. S. S. P. (2025). Komparasi perlindungan HAM terhadap LGBT di Swiss dan Indonesia. Jurnal ISO: Jurnal Ilmu Sosial, Politik dan Humaniora, 5(2), 12. <https://doi.org/10.53697/iso.v5i2.2848>. [9] Syam, H. M. (2021). Ideology and media framing: Stigmatisation of LGBT in media coverage in Indonesia. Jurnal Komunikasi: Malaysian Journal of Communication, 37(1), 59–73. <https://doi.org/10.17576/JKMJC-2021-3701-04>. [10] Ingding, I. (2025). Global norms and local resistance: The concentration of LGBTQ+ groups in three southern Thai border provinces. Soshum: Journal of Social and Humanities, 15(2), 117–126. [11] Sinthuphan, J., Ruendhawil, T. (2022). A battle for equal marriage rights in Thailand. In Protection of Minority Rights in Asia: Country Cases (p. 68). [12] Hafid, A. et al. (2025). Penyimpangan seksual menelusuri kontroversi dalam identitas LGBT. Populer: Jurnal Penelitian Mahasiswa, 4(1), 67–82. <https://doi.org/10.58192/populer.v4i1.2956>. [13] Amiruddin, Asikin, H. Z. (2006). Introduction to legal research methods. Jakarta: PT Raja Grafindo Persada, 118. [14] Ibrahim, J. (2008). Theory and methodology of normative legal research. Jakarta: Banyumedia, 310. [15] Devina et al. (2024). Bedah fenomena LGBT ditinjau menurut pendekatan socio-legal. Indonesian Journal of Law and Justice, 1(3). <https://doi.org/10.47134/ijlj.v1i3.2121>. [16] Nuraeni, R., Tampubolon, M. T., Atmoro, A., Habib, H., Handono, T. (2024). Same-sex marriage: A review of rights and obligations under the Marriage Law. Jurnal Syntax Admiration, 5(10), 4207–4218. <https://doi.org/10.46799/jsa.v5i10.1640>. [17] Dedihasriadi, L. O., Hsieh, J.-L., Umar, W. (2022). Same-sex marriage as a human rights freedom in Indonesia: The perspective of Pancasila and the Marriage Law. Jambura Law Review, 4(2). <https://doi.org/10.33756/jlr.v4i2>. [18] Winardy, G. C. Brata, E. Septiana. (2023). LGBTQ Related Intervention in Indonesia: A Literature Review. Psychological Research on Urban Society, 6(1), Article 6. <https://doi.org/10.7454/proust.v6i1.1120>. [19] Novita, O. (2021). Marriage rights for LGBT persons: Legality under Indonesian law. Jurnal Ilmiah Dunia Hukum, 6(1), 30–33. <https://doi.org/10.35973/jidh.v6i1.2572>. [20] An-Na’im, A. A. (2019). Human rights and cultural relativism revisited. The International Journal of Human Rights, 23(7), 1163–1180. <https://doi.org/10.1080/13642987.2018.1538123>. [21] Nurlaelawati, E. (2017). Modernization, tradition and identity: The Kompilasi Hukum Islam and legal practice in Indonesia. Amsterdam University Press. <https://doi.org/10.5117/9789462980703>. [22] Asshiddiqie, J. (2020). Pancasila and constitutional interpretation in Indonesia. Constitutional Review, 6(2), 151–170. <https://doi.org/10.31078/consrev621>. [23] Kusumawardani, A. P. D. (2024). Global norms vs local norms: A case study of the legalization of the marriage equality bill in Thailand. Doctoral dissertation, Universitas Muhammadiyah Yogyakarta. [24] Susmayani, U., Shaluhiyah, Z., Surjoputro, A. (2024). Literature review: Fenomena stigma terhadap homoseksual di Indonesia. Jurnal Ners, 8(2), 2169–2175. <https://doi.org/10.31004/jn.v8i2.42698>. [25] Aksorngarn, K. (2024). Legalization of same-sex marriage in Thailand: Society steps forward, but policymakers still hesitate. Beijing Law Review, 15, 80. <https://doi.org/10.4236/blr.2024.151006>. [26] Aksoy, C. G., Mishel, E. C. et al. (2023). Reducing sexual orientation discrimination: Experimental evidence on policy measures. Journal of Policy Analysis and Management. <https://doi.org/10.1002/pam.22447>. [27] Putra, A. M., Karlinah, S. (2018). The discourse of same-sex marriage on TV One. Journal of Journalism Studies, 1(2). [28] Wahyuni, Saifuddin. (2024). Persepsi mahasiswa terhadap normalisasi hubungan sesama jenis. Al-Tarbiyah: Jurnal Ilmu Pendidikan Islam, 2(3), 294–305. <https://doi.org/10.59059/al-tarbiyah.v2i3.1269>. [29] Mos, M. (2020). The anticipatory politics of homophobia: Explaining constitutional bans on same-sex marriage in post-communist Europe. East European Politics. <https://doi.org/10.1080/21599165.2020.1733983>. [30] Pranata, T. D. (2015). Behavior and social realities of gay life in Samarinda City. Ejournal of Sociology, 3(3), 135–150. [31] Drabble, L. A., Wootton, A. R., Veldhuis, C. B., Riggle, E. D. B., Rostosky, S. S. et al. (2021). Perceived psychosocial impacts of legalized same-sex marriage: A scoping review of sexual minority adults’ experiences. PLOS ONE, 16(5), e0249125. <https://doi.org/10.1371/journal.pone.0249125>. [32] Russell, S. T., Bishop, M. D., Fish, J. N. (2023). Expanding notions of LGBTQ+. Annual Review of Sociology, 49(1), 281–296. <https://doi.org/10.1146/annurev-soc-030420-012815>; [33] Lee, H. (2019). Changing attitudes toward same-sex marriage: A three-wave panel study. Political Behavior. <https://doi.org/10.1007/s11109-018-9463-7>. [34] Wang, J. (2022). Marriage equality for everyone? The business case and institutional effects of same-sex marriage legislation. Journal of Business Research. <https://doi.org/10.1016/j.jbusres.2022.02.022>; [35] Neviati, C. Z. (2018). The social reality of gender identity in same-sex relationships in Thailand (A qualitative descriptive study of gay and lesbian same-sex relationships in Thailand). Doctoral dissertation, Universitas Brawijaya. [36] Ofosu, E. K. (2019). Same-sex marriage legalization associated with reduced implicit and explicit antigay bias. Proceedings of the National Academy of Sciences. <https://doi.org/10.1073/pnas.1806000116>. [37] Lindsey, T. (2016). Indonesia: Law and society. Asian Journal of Comparative Law, 11(2), 225–240. <https://doi.org/10.1017/asjcl.2016.9>. [38] Crouch, M. (2019). Law and religion in Indonesia: The constitutional framework. Oxford Journal of Law and Religion, 8(3), 511–534. <https://doi.org/10.1093/ojlr/rwz015>. [39] Carpenter, C. S. (2021). Effects of access to legal same-sex marriage on marriage and health. Journal of Policy Analysis and Management. <https://doi.org/10.1002/pam.22286>; [40] Ko, N. Y. (2020). Associations of socially unfavorable attitudes toward homosexuality and same-sex marriage with suicidal ideation in Taiwanese people before and after same-sex marriage referendums. International Journal of Environmental Research and Public Health. <https://doi.org/10.3390/ijerph17031047>. [41] Punthiya, P., Bejrananda, T. (2022). Attitude, perception, and awareness of human rights and gender equality of LGBTQ community in Thailand. Doctoral dissertation, Maejo University.
The Electronic Administrative Decision between : The Requirements of Effectiveness and the Guarantees of Legal Security
The electronic administrative decision represents a central manifestation of digital transformation in public administration, reshaping how decisions are prepared, adopted, and implemented. This evolution requires reconsidering the traditional pillars of administrative action — competence, cause, subject matter, and purpose — to ensure both administrative effectiveness and legal security in the digital environment. This article examines how a balance can be achieved between the requirements of digital effectiveness and the guarantees of legal security in the electronic administrative decision. Adopting a combined analytical and comparative methodology, the study draws on European legal frameworks — notably French administrative law (CRPA, KPMG decision 2006), German administrative procedure law (VwVfG), and key EU instruments including the GDPR, the eIDAS Regulation, Directive 2006/123/EC, and the EU eGovernment Action Plan 2016–2020 — as well as the Council of Europe Venice Commission Rule of Law Checklist, the OECD Digital Government Policy Framework, and selected Arab legal experiences from Egypt and Jordan. The study demonstrates that the legal pillars of the electronic administrative decision are identical in substance to those of the traditional decision, differing only in the means of expression. It further establishes that the principle of legal security — constitutionally enshrined in Algeria’s 2020 constitutional amendment — constitutes a fundamental safeguard, particularly in relation to the powers of annulment and withdrawal of electronic decisions. The findings confirm that digital transformation demands the re-engineering of legal guarantees and that comparative European and international experiences offer instructive models for strengthening national frameworks in this field. Keywords: Electronic administrative decision; legal security; digital governance; comparative administrative law; algorithmic regulation. Introduction Public administration has undergone profound transformations with the transition from traditional bureaucratic models to electronic governance, producing a qualitative shift in how administrative decisions are prepared, adopted, and implemented. The emergence of the electronic administrative decision — characterised by speed, precision, and traceability — reflects this evolution while remaining anchored in the traditional legal pillars of competence, cause, subject matter, and purpose. This transformation has simultaneously generated a pressing need to ensure the protection of rights and the stability of legal positions, making legal security a central concern of equal importance to administrative effectiveness in the digital environment. Against this backdrop, Western scholarship has emphasised that digital governance requires flexible yet principled legal frameworks. Brownsword argued that modern technological developments demand regulatory rules capable of balancing digital innovation with the protection of fundamental rights.[1] Darrell M. West demonstrated that the integration of digital technology into public administration enhances the speed and accuracy of decision-making while profoundly affecting traditional administrative processes.[2] Perri G. examined the impact of digital governance tools on public policy formulation, stressing the need to align digital structures with the requirements of transparency and accountability.[3] Cecilia Magnusson Sjöberg analysed the role of algorithms in accelerating administrative decision-making while warning of the erosion of legal guarantees in the application of digital tools.[4] Jane E. Fountain, whose work on the virtual state remains a foundational reference, argued that integrating information technology into administrative structures goes beyond mere technical modernisation, producing profound institutional changes that reshape decision-making patterns, redefine accountability mechanisms, and introduce new conceptions of rights protection in the digital environment.[5] In the Algerian context, the academic literature has increasingly engaged with the electronic administrative decision from multiple perspectives. However, an integrated treatment linking its effectiveness to the guarantees of legal security remains largely absent, underscoring the need for the present research. This article accordingly raises the following central question: How can a balance be achieved between the requirements of digital administrative effectiveness and the necessities of legal security in the electronic administrative decision? To address this question, the article is structured in two main sections: the first examines the concept and legal pillars of the electronic administrative decision and the mechanisms of its entry into force; the second analyses the content and components of legal security as applied to electronic administrative decisions, with particular attention to the powers of annulment and withdrawal. Methodology The research combines the analytical and comparative methods. The analytical approach is applied to the doctrinal literature defining the electronic administrative decision and to the theoretical foundations of the principle of legal security. The comparative approach draws on multiple legal levels: at the European level, the study examines the French model — including the Code des relations entre le public et l’administration (CRPA) and the landmark KPMG decision of the Conseil d’État (2006) — and the German model, including the Verwaltungsverfahrensgesetz (VwVfG) and the jurisprudence of the Bundesverfassungsgericht; at the EU level, reference is made to the General Data Protection Regulation (GDPR — Regulation (EU) 2016/679), the eIDAS Regulation (No 910/2014), Directive 2006/123/EC on services in the internal market, and the EU eGovernment Action Plan (2016–2020); at the international level, the OECD Digital Government Policy Framework and the UN E-Government Survey are consulted; and at the Arab level, the legal experiences of Egypt and Jordan are examined. This multi-layered approach aims to develop an integrated scientific perspective to inform national legal reform. FINDINGS AND DISCUSSION 1.The Electronic Administrative Decision and the Requirements of Administrative Effectiveness in the Digital Environment The electronic administrative decision stands as one of the most prominent expressions of digital transformation within public administration. The shift to digital governance has generated new patterns in the preparation, adoption, and implementation of decisions, necessitating a reconceptualisation of the decision’s components to ensure administrative effectiveness without undermining the legal controls that have traditionally governed administrative action. This section examines, in turn, the concept and legal pillars of the electronic administrative decision and the mechanisms governing its entry into force in the digital environment. 1.1 The administrative decision in its electronic form: Concept and legal pillars The increasing reliance on digital technologies in administrative practice requires a clear understanding of both the conceptual contours of the electronic administrative decision and the legal pillars upon which its validity rests. The following sub-sections address each of these dimensions in turn. 1.1.1 The concept of the electronic administrative decision The electronic administrative decision is a compound notion that merits examination both linguistically and terminologically before its legal content can be properly assessed. From a linguistic standpoint, the term “decision” denotes firmness and stability — the settling of a matter upon reflection. The qualifier “administrative” derives from the concept of management and organisation in the public interest, encompassing both the organic dimension (the administrative apparatus) and the functional dimension (the activities directed at managing public services). The term “electronic” refers to the deployment of information and communication technologies — computers, the internet, digital platforms — as the medium through which administrative action is carried out. These linguistic elements converge in the legal concept. One strand of jurisprudence defines the electronic administrative decision as: the public administration’s receipt of an electronic request through its website, its expression of willingness to issue a decision and sign it electronically, and its notification of the concerned party via email of the legal position arising under applicable laws and regulations, to produce a specific, lawful legal effect in pursuit of the public interest.[6] Another definition emphasises the unilateral character of the act: the expression by the public administrative authority of its binding unilateral will, through electronic means, with the intention of producing legal effects whenever this is legally permissible — differing from the traditional administrative decision solely in the means by which that will is expressed.[7] A third, more concise definition characterises it as: the electronic document expressing the binding, unilateral will of the administration to produce a specific legal effect.[8] These definitions converge on a fundamental point: the electronic administrative decision is identical in legal substance to the traditional administrative decision, differing only in the technological medium used to express the administration’s will. It must accordingly satisfy the same essential requirements — issuance by a competent authority, unilateral character, and intention to produce legal effects — while drawing on digital technologies to achieve greater speed and effectiveness. From these definitions, the following distinctive characteristics may be identified:[9] The electronic administrative decision is a legal act designed to produce specific legal effects, whether by creating, modifying, or extinguishing a legal position; material acts performed through digital means without the direct intention to produce legal effects fall outside its scope. It is issued by a competent administrative authority through its unilateral will alone, without the concurrence of any other party — a feature that distinguishes it from electronic administrative contracts. It is final and enforceable from the moment of its issuance, though it may only be invoked against individuals upon proper notification. It relies on digital media and modern technologies for its issuance, documentation, and publication, thereby accelerating administrative procedures and enhancing their overall effectiveness. 1.1.2 The legal pillars of the electronic administrative decision The validity of the electronic administrative decision depends on the availability of its essential legal pillars. These pillars do not differ in substance from those of the traditional administrative decision; however, their expression acquires new digital dimensions. They may be grouped into formal and substantive elements, each of which is examined below. A. Formal Elements i. Competence Competence in its traditional sense denotes the legal authority of an administrative body or official to issue specific decisions within defined subject matter, territorial, and temporal limits. In the digital environment, competence additionally encompasses the administration’s authority to adopt decisions through electronic procedures and to issue them in the form of electronic documents, in accordance with the technical and software means at its disposal.[10] Four dimensions of competence must be distinguished. First, personal competence requires that the decision be issued by the legally designated official. In electronic administration, this is ensured through the allocation of unique digital credentials — usernames and passwords — that restrict access to the decision-making system to the authorised person alone, preventing any unauthorised exercise of administrative powers. Second, subject-matter competence delimits the fields within which the administration may issue decisions through electronic procedures, typically operationalised through the design of digital templates specific to each administrative body and its allocated functions.[11] Third, territorial competence confines the exercise of administrative powers to a defined geographical area, which in the digital context is implemented by linking electronic templates to specific administrative bodies within designated territorial jurisdictions, each identified by a unique digital code. Fourth, temporal competence limits the exercise of administrative powers to a defined period. In electronic administration, this is addressed by programming digital templates to remain operative for a period corresponding to the duration of the relevant competence, after which they automatically expire.[12] ii.Form and procedures Form refers to the manner in which the administrative decision is expressed upon its issuance — whether written, oral, explicit, implicit, or, as in the present context, electronic. French jurisprudence distinguishes between essential formalities, the violation of which entails absolute nullity, and secondary formalities. Procedures, by contrast, denote the preparatory steps preceding the issuance of the decision. In the digital context, the issuance of a decision in electronic form is legally valid provided it does not raise specific legal objections. The electronic signature has emerged as a pivotal instrument for ensuring the security and authenticity of digital administrative decisions, as recognised under the EU eIDAS Regulation (No 910/2014) and its national implementing provisions.[13] B. Substantive Elements i. Cause The element of cause refers to the legal or factual considerations that prompt the administration to adopt a particular decision. It constitutes the objective foundation upon which the decision rests at the moment of its issuance and does not, in substance, differ between traditional and electronic decisions. For the cause to be valid, three conditions must be met: it must actually exist and be established at the time of the decision’s issuance; it must be proportionate to the outcome the administration seeks to achieve; and it must be lawful. In the digital environment, these conditions are operationalised by requiring the competent official to enter the relevant legal and factual data into designated fields within the electronic decision template before the decision may be issued.[14] ii. Subject matter The subject matter of the administrative decision is the direct legal effect it produces — the creation, modification, or extinction of a legal position. In electronic decisions, the subject matter is governed by the same rules as in traditional decisions, with the added characteristic that the electronic system is pre-programmed to execute precisely defined tasks and does not possess independent discretionary authority over the content of decisions. It is anticipated, however, that advances in artificial intelligence may progressively alter this position by enabling systems to contribute to the determination of the decision’s content in a semi-autonomous manner.[15] The use of algorithms in administrative decision-making has generated significant debate in comparative jurisprudence. Karen Yeung demonstrated that algorithmic regulation raises fundamental issues of transparency, accountability, and judicial oversight. This concern has been addressed at the European level through Article 22 of the GDPR, which establishes the right of individuals not to be subject to solely automated decisions with significant effects, and through the French Law for a Digital Republic (No 2016-1321), which imposes obligations of transparency on algorithmic administrative acts. Looking ahead, the EU Artificial Intelligence Act (Regulation (EU) 2024/1689) introduces a risk-based regulatory framework specifically applicable to high-risk AI systems used by public authorities, including automated administrative decision systems.[16] iii. Purpose The element of purpose refers to the ultimate objective that the administration seeks to achieve through the issuance of a decision. Where the legislator has expressly allocated a specific objective — as in decisions relating to the maintenance of public order — the administration is strictly bound by that allocation; any deviation constitutes a misuse of power rendering the decision unlawful. Where no such allocation has been made, the administration retains a degree of discretion, but remains at all times bound to direct its decisions toward the realisation of the public interest. In the digital environment, the element of purpose is operationalised by incorporating designated fields within the electronic decision template that reflect the objective being pursued, and by programming those fields in accordance with the applicable legal framework.[17] 1.2 The entry into force of the electronic administrative decision The entry into force of the electronic administrative decision denotes the moment at which it begins to produce its legal effects and becomes enforceable. This section examines the concept of entry into force and the technical and legal mechanisms through which it is achieved in the digital environment. 1.2.1 The concept of entry into force The entry into force of an administrative decision is generally understood as its entry into the stage of implementation: the moment from which it produces the legal effects for which it was issued and becomes opposable to the parties concerned. In the context of electronic administrative decisions, this concept presents certain specificities arising from the digital nature of the act. One influential definition characterises it as: “the entry of the decision into the stage of implementation from the date of its issuance by the competent authority, having fulfilled its conditions and produced its legal effects — it being understood that the decision cannot be invoked against individuals except after they become aware of it through one of the prescribed means of notification: publication for regulatory decisions, and individual notification for individual decisions”.[18] A broader definition describes the entry into force as: “a programming process undertaken by the public administration after issuing its decision, through which it seeks to introduce it into the legal system and ensure its applicability against those concerned”. The entry into force thus involves both a legal dimension — the production of legal effects — and a technical dimension specific to the digital environment, namely the use of electronic media, internet platforms, and digital communication tools to implement the decision remotely.[19] 1.2.2 Mechanisms of entry into force The mechanisms through which an electronic administrative decision enters into force differ according to whether the decision is regulatory or individual in nature. The following sub-sections address each category in turn. A. Regulatory decisions: Electronic publication Regulatory electronic administrative decisions enter into force through publication, which in the digital environment takes the form of electronic publication. This may be defined as the process whereby the relevant administrative authority transfers the decision from its database to its official website or other designated digital platform, making its content accessible to all concerned parties. Electronic publication through official websites or digital gazettes constitutes a lawful and effective means of bringing regulatory decisions into force, provided that the chosen medium ensures the decision’s official character and allows the date of its legal effect to be determined with certainty. The administration retains discretionary authority over the choice of publication method, save where the law prescribes a specific medium, in which case compliance is mandatory.[20] B. Individual decisions: Electronic notification and certain knowledge Individual electronic administrative decisions enter into force through notification or through the establishment of certain knowledge. Electronic notification differs from traditional notification solely in the medium employed: the decision is communicated to the concerned person through digital means — email, secure digital platforms, or dedicated administrative portals — rather than through paper-based channels. For notification to be effective, it must provide the recipient with certain knowledge of the decision’s content and must include all essential elements, so that legal time limits and appeal periods may begin to run. The burden of proving that notification has been duly effected lies upon the administration.[21] It has been observed, however, that electronic notification does not invariably guarantee actual knowledge of the decision; it may constitute no more than a presumption of receipt, particularly where the message fails to reach its intended recipient or is received by a third party.[22] The theory of certain knowledge addresses situations where the concerned person has demonstrably become aware of the decision’s content through means other than formal administrative notification. In the digital environment, certain knowledge may be established through evidence of access to a secure electronic account or digital platform through which the decision was communicated — means that are technically traceable and that afford a higher degree of certainty than their paper-based equivalents.[23] 2. Guarantees of Legal Security in the Electronic Administrative Decision The principle of legal security constitutes a fundamental safeguard in any legal system, and its importance is heightened in the context of electronic administrative decisions, where the speed and opacity of digital processing may threaten the stability of legal positions. This section examines the concept and content of the principle of legal security before turning to its specific application in the field of electronic administrative decisions, with particular attention to the powers of annulment and withdrawal. 2.1 The concept of legal security The principle of legal security is a multi-dimensional concept that has been developed progressively through doctrinal scholarship and judicial jurisprudence across multiple legal systems. Its content may be examined from three complementary perspectives: the doctrinal, the judicial, and the constitutional. 2.1.1 The doctrinal definition Legal security has been defined in doctrine as: “the quality of a legal system that ensures citizens an understanding of and confidence in the law at a given time, which will most likely be the law of the future”. This definition emphasises the prospective dimension of legal security — the ability of individuals to predict with reasonable confidence how the law will apply to their future conduct.[24] A broader definition focuses on the relational dimension: “the existence of a relative stability of legal relationships and a minimum level of stability for the legal positions arising therefrom, to spread reassurance and security among members of society”.[25] A third strand of doctrine defines legal security in terms of the obligations it imposes on public authorities: “the measures taken by public authorities to achieve a balance between the stability, clarity, and accessibility of the applicable legal rules at a given time, thereby ensuring confidence and reassurance among those addressed by them, together with the possibility of their natural development and change”.[26] Based on these definitions, the requirements of legal security may be summarised under two principal heads. The first concerns the quality of legislation: legal rules must be clear, precise, accessible, and sufficiently stable to enable individuals to organise their affairs in reliance upon them. The second concerns the protection of acquired rights and the stability of legal positions: individuals must be able to rely on the legal positions they have acquired without fear of arbitrary or retroactive change.[27] 2.1.2 The judicial definition The judiciary has played a decisive role in developing the substantive content of the principle of legal security across major legal systems, progressively elevating it from a doctrinal aspiration to a judicially enforceable norm. Germany was a pioneer in this development. The Federal Constitutional Court (Bundesverfassungsgericht), in its decision of 18 December 1953, declared legal security an essential component of the rule of law as embodied in the Basic Law, holding that constitutional bodies are prohibited from disregarding legal certainty except within the narrowest of limits, lest they undermine the peace-preserving function that constitutes one of the fundamental objectives of law.[28] The Court of Justice of the European Union subsequently recognised legal security as a general principle of EU law, affirming in 1962 that the principle of legal security — and the principle of legitimate expectations which forms part of it — must be applied to all acts issued by the Member States in implementation of EU law.[29] In France, the principle was formally recognised by the Conseil d’État in its landmark KPMG decision of 24 March 2006, which defined legal security as a principle requiring that citizens be able, without undue difficulty, to determine what is permitted and what is prohibited under the applicable law, and that the rules governing them be clear, understandable, and not subject to frequent or unpredictable change over time.[30] At the European human rights level, the European Court of Human Rights, in Brumărescu v. Romania (1999), held that legal certainty is an implicit requirement of the rule of law under the Convention, precluding the arbitrary reversal of final judicial decisions — a principle applicable by extension to the stability of administrative decisions in the digital environment. The Council of Europe’s Venice Commission, in its Rule of Law Checklist (CDL-AD(2016)007), has similarly identified legal certainty, predictability, and the protection of legitimate expectations as core requirements of the rule of law in digital governance frameworks.[31] 2.1.3 Constitutional enshrinement in the Algerian legal system The Algerian constitutional framework has progressively incorporated the principle of legal security, reflecting the broader international trend towards its constitutional recognition. The constitutional amendment of 2020 enshrined the principle of legal security for the first time in explicit constitutional terms. The Preamble, which forms an integral part of the Constitution, affirms that the Constitution guarantees “the separation and balance of powers, the independence of justice, legal protection, oversight of the actions of public authorities, and the guarantee of legal and democratic security”. Article 34 further provides that, to achieve legal security, the State shall ensure, when enacting legislation relating to rights and freedoms, its accessibility, clarity, and stability. These provisions are fully consonant with the standards developed by the European Court of Human Rights regarding the quality, clarity, and predictability of legislation as prerequisites of legal security.[32] The constitutional enshrinement of this principle renders it directly applicable to the field of electronic administrative decisions, requiring that the legislative and regulatory framework governing the issuance, entry into force, annulment, and withdrawal of such decisions meet the standards of accessibility, clarity, and stability it prescribes. 2.2 Components of legal security in the field of electronic administrative decisions Having established the conceptual foundations of legal security, this section examines its concrete application to the exercise of the administration’s power to annul and withdraw electronic administrative decisions — the two areas in which the tension between administrative discretion and the stability of legal positions is most acutely felt. 2.2.1 Legal security and the annulment of electronic administrative decisions Administrative annulment is one of the principal mechanisms through which the administration modifies or terminates the legal effects of its own decisions. Its regulation is closely connected to the requirements of legal security, since unconstrained annulment powers would fundamentally undermine the stability of legal positions that the principle is designed to protect. Administrative annulment denotes an administrative measure aimed at nullifying the effects of a decision for the future, issued in accordance with the same procedures and formal requirements as the original decision. The annulment decision produces immediate, prospective effect — consistent with the principle of non-retroactivity of administrative decisions — and does not affect legal positions already constituted prior to its issuance.[33] With respect to regulatory decisions, the administration enjoys broad freedom to amend or annul them at any time, since they do not create individual legal positions and may be modified whenever the public interest so requires. However, this power is subject to an important limitation: the annulment of a regulatory provision may not affect the individual decisions that have already been issued on the basis of that provision and that have created acquired rights, unless those decisions conflict with public order. In such exceptional cases, the affected parties are entitled to compensation based on the principle of equality before public burdens.[34] Individual decisions require more nuanced treatment. Where a decision does not generate acquired rights for its beneficiary, the administration may revoke it at any time without temporal restriction. Where, however, the decision creates acquired rights, it enjoys a degree of protection: it may not be interfered with unless it is tainted by a legal defect. Even then, a distinction must be drawn between minor illegality — where annulment is subject to the applicable time limits for administrative appeal, after which the decision becomes immune — and serious illegality, where annulment is not constrained by such time limits. This regulatory framework demonstrates that the power of annulment, when properly circumscribed, serves rather than undermines legal security: the immunity of rights-creating decisions after the expiry of appeal periods reflects respect for the stability of legal positions, while the retained power to annul seriously unlawful decisions ensures that legality is maintained as a structural guarantee of the legal order. The same principles apply fully to electronic administrative decisions, with the additional requirement that the technical means used to implement annulment decisions — including digital notification systems and electronic publication platforms — must themselves satisfy the standards of reliability and traceability required by the principle of legal security. 2.2.2 Legal security and the withdrawal of electronic administrative decisions The power of administrative withdrawal — the retroactive annulment of an administrative decision from the date of its issuance, as if it had never been adopted — is among the most potentially disruptive of administrative powers from the standpoint of legal security, given its capacity to extinguish rights already acquired and to unsettle legal positions that individuals have organised their affairs in reliance upon. The exercise of this power is therefore subject to strict conditions in both national and comparative law. Three requirements are essential: the decision subject to withdrawal must be unlawful; the withdrawal must be effected by the competent authority; and the administration must, in exercising this power, respect the principle of legality and ensure adequate protection of the rights and legal positions of those concerned. The comparative experience of European legal systems is instructive in this regard. Under German administrative law, paragraph 48 of the VwVfG subjects the withdrawal of unlawful administrative acts conferring benefits to a balancing exercise between the principle of legality and the protection of legitimate expectations. The French Conseil d’État, in its Soulier decision (2002), confirmed a four-month time limit for the withdrawal of rights-creating individual decisions, subsequently codified in Article L. 242-1 of the CRPA as amended by the Loi ESSOC (2018). The OECD Digital Government Policy Framework (2020) recommends that national legal systems establish equivalent mechanisms in the digital environment to ensure predictability and legal security.[35] This comparative framework underscores a fundamental principle: the power of withdrawal, while necessary to correct unlawful administrative acts, must be exercised within defined temporal and procedural limits that prevent the administration from unilaterally extinguishing acquired rights based on errors of its own making. In the context of electronic administrative decisions, the digital environment can facilitate both the exercise of this power and the imposition of appropriate constraints upon it, through the use of automated time-limit controls, digital audit trails, and secure notification systems that provide verifiable evidence of the date and content of the decision’s communication to the persons concerned. Conclusion This study has demonstrated that the electronic administrative decision constitutes a practical embodiment of digital transformation in public administration, capable of achieving speed and efficiency in administrative action without compromising the requirements of legality. Its legal pillars — competence, cause, subject matter, and purpose — are identical in substance to those of the traditional administrative decision, with the formal elements adapted to the digital environment in ways that, when properly regulated, enhance rather than undermine their integrity. The comparative analysis of European legal systems — particularly the French model, including the CRPA, the Loi pour une République numérique, and the Conseil d’État’s KPMG jurisprudence, and the German model, including the VwVfG and the Bundesverfassungsgericht’s foundational decisions on legal security — together with the relevant EU instruments (GDPR, eIDAS Regulation, Services Directive 2006/123/EC, EU AI Act 2024/1689) and the Council of Europe’s Venice Commission Rule of Law Checklist, has confirmed that the legal challenges identified in the Algerian context form part of a broader international debate on the governance of digital administration. These comparative experiences offer concrete and transferable solutions for the development of the national legal framework. The principle of legal security — constitutionally enshrined in Algeria’s 2020 constitutional amendment — has emerged as the indispensable counterweight to administrative digitisation, ensuring that the speed and efficiency of electronic decision-making do not come at the cost of the stability of legal positions and the protection of acquired rights. Its application to the powers of annulment and withdrawal of electronic administrative decisions, informed by the principle of legitimate expectations as developed in European comparative administrative law, provides the analytical framework necessary for the re-engineering of legal guarantees in the digital environment. The scientific contribution of this study lies in its systematic examination of the complementary relationship between administrative digitisation and the principle of legal security, and in its identification of the mechanisms — annulment and withdrawal, digital notification, electronic publication, and algorithmic transparency — through which that balance can be institutionally secured. Based on these findings, the following recommendations are submitted: Enact clear legislative frameworks specifically regulating the issuance, entry into force, annulment, and withdrawal of electronic administrative decisions, drawing on the French CRPA and the German VwVfG as comparative models. Adopt secure digital technologies for the issuance and notification of administrative decisions, in conformity with the eIDAS Regulation standards on electronic signatures and trusted services. Establish specific time-limit mechanisms for the annulment and withdrawal of rights-creating electronic administrative decisions, ensuring adequate protection of acquired rights and legal positions in the digital environment. Develop training programmes for administrative officials to strengthen legal and technical competencies in digital administration, aligned with the OECD Digital Government Policy Framework. Align the national legal framework with international benchmarks, including the OECD Digital Government Policy Framework, the Council of Europe Venice Commission Rule of Law Checklist, the EU eGovernment Action Plan, and the UN E-Government Survey recommendations. Future Research Perspectives Several avenues for future comparative research emerge from this study. First, the implications of the EU AI Act (Regulation (EU) 2024/1689) for automated administrative decision-making warrant dedicated analysis, particularly in relation to the risk-based classification of AI systems deployed by public authorities and the corresponding obligations of transparency, accountability, and human oversight. Second, the protection of personal data in digital administrative decision-making requires further examination in light of Article 22 GDPR and the Council of Europe Convention 108+, both of which impose substantive constraints on algorithmic administrative action that must be integrated into national administrative law frameworks. Third, comparative research should examine the approaches adopted by France (CRPA and algorithmic transparency obligations), Germany (VwVfG and the emerging debate on AI in public administration), and the Netherlands — whose experience with the SyRI algorithmic welfare system, invalidated by the Hague District Court in 2020 on human rights and proportionality grounds, provides a cautionary model — in regulating algorithmic governance within public administration. Fourth, analysis of the EU Data Governance Act (Regulation (EU) 2022/868), the Interoperable Europe Act, and the revised EU Digital Identity Framework (Regulation (EU) 2024/1183 amending eIDAS) would substantially enrich the comparative study of digital administrative law in the Arab and Algerian legal contexts. Fifth, the challenges posed by cross-border electronic administrative decisions in regional integration frameworks — particularly in light of the Internal Market Services Directive and the EU’s single digital gateway initiative — offer a promising model for exploring pathways toward regional harmonisation of digital administrative procedures. References Scholarly literature: Al-Ajarma, N. A., Salamat, N. A. H. (2018). Entry into Force of the Electronic Administrative Decision. Dirasat: Sharia and Law Sciences, Vol. 40, No. 1, Jordan. (in Arabic); Al-Arabi, W. (2022). The Electronic Administrative Decision as a Modern Method for Managing Public Utilities. Algerian Journal of Law and Political Science, University of Algiers 1, Vol. 7, No. 1. (in Arabic); Al-Eid, B. (2024). The Impact of Electronic Administration on Administrative Activity. Journal of Law, Ahmed Zabana University Center, Relizane, Vol. 13, No. 1; Al-Qabilat, H. (2014). Electronic Public Administration Law (1st ed.). Dar Wael for Publishing, Amman. (in Arabic); Aouabdi, A. (1999). The Theory of Administrative Decisions between Public Administration Science and Administrative Law. Dar Houma, Algeria. (in Arabic); Aouacheria, R. (2016). Legal Security and Its Impact on Development. Algerian Journal of Human Security, University of Batna, No. 1. (in Arabic); Baali, M. B. (2005). Administrative Decisions. Dar Al-Oloum for Publishing and Distribution, Algeria. (in Arabic); Belamouri, N. (2024). Lectures in Administrative Decisions and Contracts (Third-Year Students, Public Law). University of Mohamed Ben Ahmed, Oran 2. (in Arabic); Ben Aichouch, A. (2024). The electronic administrative decision: A reading in concept and importance. Journal of Jurisprudential and Legal Nawazel, Laghouat, 8(1). (in Arabic); Ben Ramdana, L., Ben Drah, A. I. (2025). Provisions of the Entry into Force of the Electronic Administrative Decision. Journal of Legal and Economic Research, Aflou University Center, Vol. 8, No. 1. (in Arabic); Bouhafs, H. (2025). The Role of the Administrative Judge in Protecting the Principle of Legality and Establishing the Foundations of Legal Security (Doctoral thesis). University of Ain Temouchent Belhadj Bouchaib. (in Arabic); Briache, A. (2024). The Impact of Electronic Administration on Administrative Activity. Journal of Law, Relizane, Vol. 13, No. 1. (in Arabic); Brownsword, R. (2019). Law 3.0: Rules, Regulation and Technology. Routledge; Fatima, A., Amal, A. B. The Role of Administration in Protecting the Principle of Legal Security in the Field of the Administrative Decision. Fountain, J. E. (2001). Building the Virtual State: Information Technology and Institutional Change. Brookings Institution Press; Ghazi, F. A. (2023). Criminal Legal Security — A Comparative Analytical Study (1st ed.). Arab Center for Publishing and Distribution, Egypt. (in Arabic); Hammamda, A. H. (2016). The Electronic Administrative Decision. Police Thought Journal, UAE, Vol. 25, No. 99. (in Arabic); Koussa, F. (2013). The Administrative Decision in Light of the Jurisprudence of the Council of State. Dar Houma, Algeria. (in Arabic); Majed, M. Z. A. (2023). Legal Controls of Electronic Administrative Decisions. Journal of Jurisprudential and Legal Research, Damanhur, No. 41. (in Arabic); Mohamed, S. Sh. (2015). Electronic Entry into Force of the Administrative Decision (Doctoral thesis). Faculty of Law, Ain Shams University. (in Arabic); Omar, A. H. (2021). Means of Entry into Force of the Electronic Administrative Decision. Al-Bayan Journal for Legal and Political Studies, Vol. 6, No. 1. (in Arabic); Othman, H. M. A. (2018). Lessons in Administrative Judiciary Law in Lebanon, France, and Egypt. Dar Al-Jami’a Al-Jadida, Egypt. (in Arabic); Perri, G. (2004). Governance Styles of Political Judgment in the Information Age. Palgrave Macmillan; Radi, M. L. (2020). Protection of Legal Security in Contemporary Legal Systems (1st ed.). Arab Center for Publishing and Distribution, Egypt. (in Arabic); Sjoberg, C. M. (2003). The Rule of Law and Automated Decision Making. Springer; West, D. M. (2005). Digital Government: Technology and Public Sector Performance. Princeton University Press; Yeung, K. (2001). Algorithmic Regulation: A Critical Interrogation. Regulation & Governance, Vol. 12. Normative acts: Algeria. Constitution, amended by Presidential Decree No. 442-20 of 30 December 2020. Official Gazette No. 82; European Parliament and Council. (2006). Directive 2006/123/EC on services in the internal market; European Parliament and Council. (2014). Regulation (EU) No 910/2014 — eIDAS Regulation; European Parliament and Council. (2016). Regulation (EU) 2016/679 — GDPR; European Parliament and Council. (2022). Regulation (EU) 2022/868 — Data Governance Act; European Parliament and Council. (2024). Regulation (EU) 2024/1183 — Revised EU Digital Identity Framework; European Parliament and Council. (2024). Regulation (EU) 2024/1689 — AI Act; France. Code des relations entre le public et l’administration (CRPA), as amended by Law No. 2018-727 (Loi ESSOC); France. Law No. 2016-1321 pour une République numérique; Germany. Verwaltungsverfahrensgesetz (VwVfG) — Federal Administrative Procedure Act, as amended. Case law: Bundesverfassungsgericht (Federal Constitutional Court of Germany), Decision of 18 December 1953, on legal security as a component of the rule of law under the Basic Law; Bundesverwaltungsgericht, BVerwGE 66, 61 (1983), on conditions for retroactive withdrawal of unlawful administrative acts under para. 48 VwVfG; Court of Justice of the European Union, Case 112/77, Töpfer v. Commission [1978] ECR 1019; European Court of Human Rights, Brumărescu v. Romania, No. 28342/95 (28 October 1999); French Conseil d’État, Decision of 24 March 2006, KPMG, No. 288460; French Conseil d’État, Decision of 6 November 2002, Soulier, No. 240270. International instruments and institutional reports: Council of Europe Venice Commission. (2016). Rule of Law Checklist, CDL-AD(2016)007; European Commission. (2016). EU eGovernment Action Plan 2016–2020, COM(2016) 179 final; European Union Agency for Fundamental Rights. (2020). Artificial Intelligence and Fundamental Rights: A Focus on Explainability. Publications Office of the EU. <https://doi.org/10.2811/001874>; OECD. (2020). Digital Government Policy Framework: Six Dimensions of a Digital Government. OECD Public Governance Policy Papers No. 02. <https://doi.org/10.1787/f64fed2a-en>; United Nations DESA. (2022). UN E-Government Survey 2022: The Future of Digital Government. <https://publicadministration.un.org/egovkb>. Footnotes [1]Brownsword, R. (2019). Law 3.0: Rules, Regulation and Technology. Routledge, p. 45. [2]West, D. M. (2005). Digital Government: Technology and Public Sector Performance. Princeton University Press, pp. 78–79. [3]Perri, G. (2004). Governance Styles of Political Judgment in the Information Age. Palgrave Macmillan, pp. 102–104. [4]Sjoberg, C. M. (2003). The Rule of Law and Automated Decision Making. Springer, pp. 55–57. [5]Fountain, J. E. (2001). Building the Virtual State: Information Technology and Institutional Change. Brookings Institution Press, pp. 5–9. [6]Othman, H. M. (2018). Lessons in Administrative Judiciary Law in Lebanon, France, and Egypt. Dar Al-Jami’a Al-Jadida, Egypt, p. 53. [7]Al-Qabilat, H. (2014). Electronic Public Administration Law (1st ed.). Dar Wael for Publishing, Amman, p. 96. [8]Mohamed, S. Sh. (2015). Electronic Entry into Force of the Administrative Decision (Doctoral thesis). Faculty of Law, Ain Shams University, p. 41. [9]Majed, M. Z. (2023). Legal Controls of Electronic Administrative Decisions. Journal of Jurisprudential and Legal Research, Damanhur, No. 41, p. 1027. [10]Baali, M. (2005). Administrative Decisions. Dar Al-Oloum for Publishing and Distribution, Algeria, p. 49. [11]Majed, M. Z. A. (2023). Legal Controls of Electronic Administrative Decisions. Journal of Jurisprudential and Legal Research, Damanhur, No. 41, p. 1034. [12]Koussa, F. (2013). The Administrative Decision in Light of the Jurisprudence of the Council of State. Dar Houma, Algeria, pp. 136 ff. [13]Al-Eid, B. (2024). The Impact of Electronic Administration on Administrative Activity. Journal of Law, Ahmed Zabana University Center, Relizane, Vol. 13, No. 1, p. 41. See also: European Commission, COM(2016) 179 final, EU eGovernment Action Plan 2016–2020; and Regulation (EU) No 910/2014 (eIDAS Regulation). [14]Ben Aichouch, A. (2024). The electronic administrative decision: A reading in concept and importance. Journal of Jurisprudential and Legal Nawazel, Laghouat, 8(1), p. 66. [15]Al-Arabi, W. (2022). The Electronic Administrative Decision as a Modern Method for Managing Public Utilities. Algerian Journal of Law and Political Science, University of Algiers 1, Vol. 7, No. 1, pp. 754 ff. See also: Directive 2006/123/EC on services in the internal market. [16]Yeung, K. (2001). Algorithmic Regulation: A Critical Interrogation. Regulation & Governance, Vol. 12, pp. 503–523. See also: Regulation (EU) 2016/679 (GDPR), Article 22; and France, Law No. 2016-1321 pour une République numérique. [17]Hammamda, A. H. (2016). The Electronic Administrative Decision. Police Thought Journal, UAE, Vol. 25, No. 99, p. 77. [18]Omar, A. H. (2021). Means of Entry into Force of the Electronic Administrative Decision. Al-Bayan Journal for Legal and Political Studies, Vol. 6, No. 1, p. 14. [19]Ben Ramdana, L., Ben Drah, A. I. (2025). Provisions of the Entry into Force of the Electronic Administrative Decision. Journal of Legal and Economic Research, Aflou University Center, Vol. 8, No. 1, p. 28. [20]Briache, A. (2024). The Impact of Electronic Administration on Administrative Activity. Journal of Law, Relizane, Vol. 13, No. 1, p. 44. [21]Al-Ajarma, N. A., Salamat, N. A. H. (2018). Entry into Force of the Electronic Administrative Decision. Dirasat: Sharia and Law Sciences, Vol. 40, No. 1, Jordan, p. 1028. See also: OECD (2020). Digital Government Policy Framework, OECD Public Governance Policy Papers No. 02. <https://doi.org/10.1787/f64fed2a-en>. [22]Briache, A., op. cit., p. 45. [23]Al-Arabi, W., op. cit., p. 757. [24]Aouacheria, R. (2016). Legal Security and Its Impact on Development. Algerian Journal of Human Security, University of Batna, No. 1, p. 25. [25]Fatima, A., Amal, A. B. The Role of Administration in Protecting the Principle of Legal Security in the Field of the Administrative Decision, p. 85. [26]Radi, M. L. (2020). Protection of Legal Security in Contemporary Legal Systems (1st ed.). Arab Center for Publishing and Distribution, Egypt, p. 22. [27]Fatima, A., Amal, A. B., op. cit., p. 85. [28]Bouhafs, H. (2025). The Role of the Administrative Judge in Protecting the Principle of Legality and Establishing the Foundations of Legal Security (Doctoral thesis). University of Ain Temouchent Belhadj Bouchaib, p. 295. [29]Ghazi, F. A. (2023). Criminal Legal Security — A Comparative Analytical Study (1st ed.). Arab Center for Publishing and Distribution, Egypt, p. 26. See also: Court of Justice of the European Union, Case 112/77, Töpfer v. Commission [1978] ECR 1019, affirming legal security as a general principle of EU law. [30]Bouhafs, H., op. cit., pp. 298 ff. See also: French Conseil d’État, Decision of 24 March 2006, KPMG, No. 288460, formally recognising legal security (sécurité juridique) as a general principle of French administrative law, requiring adequate transitional periods when introducing new regulatory measures affecting individual legal positions. [31]Ibid. See also: ECtHR, Brumărescu v. Romania, No. 28342/95 (28 October 1999), holding legal certainty an implicit requirement of the rule of law; and Council of Europe Venice Commission, Rule of Law Checklist, CDL-AD(2016)007, paras. 55–58. [32]Algerian Constitution, amended by Presidential Decree No. 442-20 of 30 December 2020. Official Gazette No. 82, Preamble and Article 34. [33]Aouabdi, A. (1999). The Theory of Administrative Decisions between Public Administration Science and Administrative Law. Dar Houma, Algeria, p. 169. [34]Belamouri, N. (2024). Lectures in Administrative Decisions and Contracts (Third-Year Students, Public Law). University of Mohamed Ben Ahmed, Oran 2, p. 41. See also: Bundesverwaltungsgericht, BVerwGE 66, 61 (1983), on conditions for retroactive withdrawal of unlawful administrative acts under para. 48 VwVfG. [35]Ibid. See also: French Conseil d’État, Decision of 6 November 2002, Soulier, No. 240270, reaffirming the four-month time limit for withdrawal of rights-creating administrative decisions, as codified in Article L. 242-1 CRPA, amended by Law No. 2018-727 (Loi ESSOC). See further: OECD Digital Government Policy Framework (2020).
The Legal Dilemma of Chemical Castration in Algeria: Balancing Criminal Legality and Human Dignity Amidst Legislative Silence
This study aims to analyze chemical castration as a newly introduced mechanism within criminal policy to address sexual offenses against minors, in light of the balance between the need to deter sexual crimes and the imperative to protect human dignity, It departs from the growing gravity of sexual crimes against children and the resulting societal demand for harsher punishment, by examining the legitimacy of incorporating chemical castration into the Algerian penal system. This modern measure, which functions by suppressing sexual hormones to reduce aggressive impulses, has sparked deep doctrinal debate—between those who regard it as a preventive measure that enhances public safety, and those who view it as a violation of bodily integrity and human rights protected under international conventions. The study also discusses the Algerian constitutional framework, which enshrines the principles of legality and protection of the human body, concluding that the adoption of chemical castration requires explicit legislative regulation defining its nature and safeguards. Ultimately, the research finds that chemical castration represents a hybrid measure, combining elements of deterrence and treatment, and recommends that the Algerian legislator conduct a careful assessment before its adoption to ensure compliance with the Constitution and international human rights obligations. Keywords: Chemical castration; sexual crimes; human dignity; principle of legality; human rights. Introduction The issues pertaining to the sexual assault and exploitation of minors are universally recognized as some of the most heinous, grievous, and alarming crimes within the fabric of modern societies. This recognition stems from the devastating, multifaceted, and long-term psychological, physiological, and sociological repercussions that such crimes inflict upon the victims, effectively shattering their fundamental well-being. The profound gravity of these offenses has exerted significant pressure on legislative and judicial authorities worldwide, compelling them to engage in an arduous search for efficacious and robust mechanisms designed for the prevention and deterrence of such catastrophic criminal activities. In recent decades, the field of criminal policy has witnessed profound paradigm shifts and deep structural transformations, necessitated by the burgeoning challenges posed by the contemporary reality of sexual criminality against children. These developments, which frequently provoke intense social shock and profound moral anxiety among the general public, have driven legislators in numerous jurisdictions to explore non-conventional, innovative legal instruments aimed at addressing the inherent dangerousness of these offenders and significantly curtailing the probability of criminal recidivism. Among the most prominent and controversial of these tools, which has ignited a fierce and polarized debate within both jurisprudential circles and human rights advocacy groups, is the measure colloquially and legally referred to as Chemical Castration. This specific procedure, alternatively classified as a sanction or a medicalized intervention, is fundamentally predicated upon the administration of sophisticated pharmacological agents. These medical substances are designed to induce a temporary yet substantial inhibition and suppression of the sexual hormones (specifically, androgens) that are biological drivers of sexual desire and behavior. The ultimate objective of this hormonal suppression is to physiologically diminish the aggressive impulses inextricably linked to sexual assault. Indeed, this mechanism has been formally integrated and implemented within the legislative frameworks of several foreign nations, including but not limited to France, Poland, South Korea, and various states within the United States of America. In these jurisdictions, chemical castration is applied either as a voluntary measure, often serving as a stringent condition for parole or conditional release, or as a mandatory sanction, functioning as a specific statutory penalty imposed upon perpetrators of aggravated sexual assaults, particularly those targeting infants and minors. Notwithstanding its purported efficacy, chemical castration remains the subject of a monumental and unresolved dialectic between two opposed jurisprudential schools of thought. The first orientation, which is primarily preventive and prophylactic in nature, posits that this measure constitutes an exceptionally effective tool for neutralizing. Proponents of this view argue that it significantly bolsters communal security and serves as a vital barrier against the recurrence of the crime. Their logic is anchored in the philosophical premise that the collective right to safety and the specific protection of the child’s innocence must take precedence over the individual rights of the offender who has, through their own transgressions, forfeited certain social and legal claims. Conversely, the second jurisprudential orientation contends that this procedure strikes at the very core of inherent human dignity. They argue that it involves a form of bodily intrusion and physical interference that is strictly prohibited under the mandates of international human rights law. They specifically invoke the International Covenant on Civil and Political Rights and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, asserting that such measures represent a violation of the prohibition against any treatment that is cruel or degrading, even when conducted under the auspices of criminal justice. Within this complex conceptual landscape, this study seeks to illuminate the current state of criminal policy within the Algerian Legislative Framework. Algeria, like many other nations, has unfortunately become a theater for sexual crimes perpetrated against children, leading to a surge in societal demands for the imposition of the most draconian and rigorous penalties against such offenders. Consequently, this subject acquires a singular importance given that the national punitive system has, for several years, trended toward an intensification of sanctions for crimes affecting children. This trend is clearly manifested in the Child Protection Law and the subsequent amendments to the Penal Code, both of which introduced stringent provisions targeting sexual predators. However, the Algerian legislator has remained notably silent regarding the specific issue of chemical castration, failing to address it either explicitly or by implication. This legislative silence raises critical questions concerning the possibility of adopting such a measure, perhaps under the legal umbrella of preventive measures or within the broader framework of the reform and rehabilitation of the offender. Despite the growing international debate, Algerian legal scholarship has not yet provided a systematic analysis of chemical castration within the framework of criminal legality and human dignity. The complexity of this issue is further exacerbated by the fact that the traditional demarcation between Punishment and Preventive Measures is becoming increasingly blurred in contemporary criminal jurisprudence. Modern criminal policy is progressively moving toward the adoption of what are known as Hybrid Measures, which simultaneously combine punitive-deterrent characteristics with therapeutic-remedial objectives. Chemical castration epitomizes this duality; it possesses a judicial character because it is typically mandated by a court order, yet it also maintains a medical-preventive character because its primary aim is the reduction of criminal risk through biological and clinical intervention. The significance of this research is manifested in its endeavor to address the existing legislative vacuum within the Algerian penal system. It achieves this by critically evaluating the potential for incorporating chemical castration as a tool for achieving Preventive Justice, while ensuring that such an inclusion does not undermine the fundamental and non-derogable guarantees of the accused. Theoretically, this study contributes to the enrichment of Arab criminal jurisprudence by engaging in a modern discourse that keeps pace with international trends in combating sexual criminality. Practically, it aims to provide the Algerian legislator with a balanced and nuanced vision that navigates the tension between the imperatives of social security and the necessity of respecting the foundational human rights of the individual. Consequently, and considering the aforementioned context, the Fundamental Problematic that this research seeks to address can be formulated as follows: To what extent can chemical castration be characterized as a criminal penalty that is compatible with the principles of criminal legality and international human rights standards? Conversely, should it be regarded merely as a preventive measure cloaked in a punitive appearance, thereby conflicting with the constitutional values regarding human dignity and bodily integrity as enshrined in Algerian legislation? To address this problem, the researcher will adopt a Descriptive-Analytical and Comparative Methodology. This approach will involve a comparative analysis of the jurisprudential and legal conceptualization of chemical castration, considering international experiences. By utilizing analytical tools, the study will discuss the legal translatability of chemical castration into the Algerian legal environment, grounded in constitutional principles and relevant international human rights conventions. The study employs a descriptive-analytical and comparative methodology, examining selected foreign legal systems to assess the normative transposability of chemical castration into the Algerian constitutional framework. The analysis is conducted across multiple levels, including the doctrinal, constitutional, and international human rights dimensions, with reference to the legal experiences of France, Poland, and the USA.[1] 1. The Conceptual and Theoretical Framework of Chemical Castration Chemical castration is theoretically conceptualized as a sophisticated pharmacological and therapeutic intervention. It primarily entails the systematic administration of anti-androgen medications or the utilization of gonadotropin-releasing hormone inhibitors that act upon the pituitary-gonadal axis. The fundamental objective of this clinical procedure is to substantially decrease testosterone concentrations or systematically inhibit their physiological and psychological impact on the physical and behavioral disposition of the individual subjected to the treatment. It is analytically imperative to distinguish chemical castration from Surgical Castration. While the latter is characterized by the permanent, irreversible, and physical excision of the gonads, the effects of chemical castration are generally characterized by their reversibility; physiological functions typically resume once the pharmacological regimen is suspended. In contrast, surgical intervention produces a definitive and permanent cessation of reproductive and sexual capacity. Chemical castration specifically seeks to attenuate the offender’s sexual libido and curb habitual deviant behaviors that may precipitate the commission of further offenses. Consequently, within several modern legislative frameworks, this procedure is classified as a preventive or therapeutic measure proposed to convict as a condition for parole, while other systems have institutionalized it as a supplementary or alternative sanction within the functional hierarchy of criminal punishment.[2] 1.1 Definition and differentiation of chemical castration from other sanctions In its technical and jurisprudential sense, chemical castration refers to the strategic deployment of specific medicinal or hormonal substances that induce either a temporary or prolonged suppression of sexual desire in the perpetrator. This is particularly targeted at those convicted of heinous crimes such as rape or sexual aggression against children, with the overarching goal of preventing future criminal recidivism. Legal scholars emphasize the distinction between chemical and surgical methods: the former is limited to a medico-pharmacological intervention that regulates hormonal secretions specifically testosterone without compromising the anatomical integrity or physical structure of the human body.[3] This non-invasive nature has provided a jurisprudential justification for various legislatures to adopt it as a therapeutic-preventive measure rather than a traditional punitive sanction. This mechanism has been institutionalized in several sovereign states that have enacted specialized legislation for sex offenders against minors, including Poland, the Czech Republic, the Russian Federation, South Korea, and various jurisdictions within the United States. Consequently, it has become the focal point of a rigorous ethico-legal debate concerning its legitimacy and its compatibility with fundamental human rights principles, most notably the right to bodily integrity and human dignity. Furthermore, a distinction must be drawn between chemical castration and other rehabilitative measures. Unlike standard psychiatric treatments, chemical castration does not necessarily aim to cure a clinical mental disorder in the traditional medical sense; rather, it often functions as a coercive judicial procedure imposed by court order or as a prerequisite for early release. It likewise differs from Psychosexual Therapy, which focuses on behavioral modification through cognitive-behavioral programs without interfering with the body’s endocrine system. From a strictly legal perspective, chemical castration defies easy classification within the traditional taxonomies of punishment. It possesses a hybrid nature that intersects retribution with therapy, and coercion with prevention. Some legislatures categorize it as a Security-Therapeutic Measure, whereas others view it as an Accessory Penalty added to custodial sentences. For instance, Polish Law No. 240/2009 mandates the submission of sex offenders against children to chemical castration following a mandatory consultation with a specialized medical board. Conversely, in the United States, several states apply it under the Informed Consent model as a condition for parole, where the offender theoretically chooses the treatment over continued incarceration.[4] In the context of Islamic Jurisprudence, castration is not recognized as a standardized Sharia sanction. The general principles of Islamic law emphasize the sanctity and inviolability of the human body, prohibiting any physical alteration or harm except in cases explicitly mandated by divine text, such as Qisas. Thus, the introduction of chemical castration may clash with the principle of the sanctity of the body, which Muslim jurists have affirmed by stating that the body is a trust, that neither the individual nor the state may infringe upon without legitimate scriptural justification.[5] 1.2 Historical and intellectual evolution of chemical castration Castration is not a novel concept in the history of punitive systems; its origins can be traced back to ancient civilizations, including the Babylonian, Greek, and Roman eras, where physical castration was utilized as a retributive penalty for adultery, treason, or crimes of honor. However, with the evolution of humanistic thought and the rise of reformist movements in the 18th century, physical castration receded in favor of custodial imprisonment. The surge in sexual offenses against children in the late 20th century reignited the debate over the efficacy of traditional penalties. The perceived failure of general and specific deterrence provided by mere incarceration, coupled with high recidivism rates, led to the conceptualization of chemical castration. It first appeared in medical literature in the 1950s, specifically using medroxyprogesterone acetate to treat sexual obsessions. By the late 1980s, it transitioned into legal application in California and Florida as a condition for parole. At the dawn of the 21st century, Eastern European nations began legislative adoption (Poland in 2009, the Czech Republic in 2010), largely driven by public outcry following high-profile pedophilic incidents. These nations framed the procedure as Mandatory Medical Treatment to bypass constitutional objections to corporal punishment. Meanwhile, Western European nations, such as France and Germany, remain significantly more reserved, viewing chemical castration as a potential violation of Article 3 of the European Convention on Human Rights. This perspective is reinforced by the standards set by the European Committee for the Prevention of Torture (2017) regarding the medical treatment of detainees.[6] 1.3 Medical, scientific, and jurisprudential nature From a scientific standpoint, the procedure relies on GnRH agonists or anti-androgens such as Leuprolide or Cyproterone Acetate. These are administered through periodic injections to significantly lower sexual activity and aggressive libidinal impulses. Empirical studies suggest that the effects are transient and diminish upon the cessation of treatment, rendering it a reversible measure, unlike the finality of surgical intervention.[7] Medical professionals emphasize that chemical castration is a physiological tool for impulse control rather than a comprehensive psychological cure. Therefore, medical associations recommend its integration into a Multimodal Treatment Program that includes psychological and behavioral counseling. Field experiments in Sweden and South Korea have demonstrated that recidivism rates among those subjected to chemical castration decreased by approximately 30% to 40% compared to those who only served custodial sentences, proving its efficacy as a preventive measure provided it is subject to strict judicial and medical oversight.[8] Recent comparative legal analyses[9] and international reviews of legislation[10] suggest that the success of such measures depends on rigorous adherence to international human rights frameworks Ultimately, this sanction/measure is anchored in two complementary principles of modern criminal jurisprudence: the Principle of Deterrence and the Principle of Social Protection. From a deterrent perspective, it is viewed as a rigorous response that generates a profound psychological impact on both the offender and society. From a preventive perspective, it serves as a functional tool to neutralize the biological drivers of crime. Nevertheless, it continues to raise fundamental questions regarding the boundaries of state authority in interfering with the human body. While some argue the state has a Right of Defense against dangerous criminals, others maintain that bodily integrity is the essence of human dignity and cannot be treated as a mere instrument of penal policy. 2. The Legal Nature of Chemical Castration: The Dialectic between Criminal Sanction and Preventive Measure Modern criminal jurisprudence maintains a fundamental and structural distinction between Punishment, viewed as a retributive sanction for a criminalized act, and Preventive Measures, conceptualized as functional instruments designed to shield society from criminal dangerousness. While punishment is intrinsically linked to the Principle of Guilt, preventive measures are anchored in the element of future risk or threat. The eminent jurist Mirabeau elegantly articulated this dichotomy by stating: Punishment is justified by the past, while the preventive measure is justified by the future. This distinction is paramount in determining the precise positioning of chemical castration within the hierarchical punitive system.[11] When scrutinizing the core of the chemical castration procedure, we observe a duality: it is imposed following a judicial finding of guilt and via a court verdict characteristic that aligns it with traditional punishment. However, if we examine its ultimate teleological objective, namely, the prevention of future recidivism, it qualifies as a preventive measure par excellence. 2.1 Chemical castration as a criminal sanction Within several legislative frameworks, chemical castration is formally recognized as a punitive sanction that either integrates with custodial sentences or partially replaces them. For instance, in the jurisdiction of California, Law No° 794 of 1996[12] stipulates that any individual convicted of the rape of a child may be subjected to chemical castration as a mandatory condition for parole. From the perspective of criminal retribution, this measure serves as a deterrent mechanism specifically tailored for a category of offenders characterized by a high probability of recidivism. Proponents of this punitive orientation rely on the Principle of Proportionality between the crime and the penalty. They argue that since an assault against a child constitutes a profound violation of society’s collective moral fabric, the law’s intervention into the offender’s biological body is justified as a reciprocal measure to prevent further violations of potential victims’ physical integrity. Nevertheless, this purely retributive characterization faces significant opposition. For example, French law, while permitting the administration of libido-suppressing agents, mandates the informed consent of the convict and classifies the procedure strictly within the framework of Psychosexual Treatment, explicitly denying it the status of a criminal penalty. This reflects a significant jurisprudential trend toward depenalizing chemical castration.[13] As argued by Hess et al, the ethical debate remains unresolved in European jurisprudence, particularly concerning the balance between social security and human rights.[14] 2.2 Chemical castration as a preventive measure Preventive measures in modern criminal thought aim to protect the social order from criminal dangerousness, irrespective of the offender’s total criminal responsibility. The scholar Zimring defines them as precautionary procedures imposed upon those whose dangerousness is established in order to preclude their return to criminal conduct.[15] Within this intellectual framework, many jurists perceive chemical castration as a physiological tool to regulate sexual impulses, aligning it more closely with Medical Preventive Measures typically imposed on individuals with psychological disorders that pose a threat to public safety. In this regard, the European Court of Human Rights (Strasbourg) explicitly supported this orientation in the landmark case of Kudla v. Poland (2000). The court clarified that therapeutic interventions do not constitute treatment provided they are genuinely aimed at treatment and are conducted under the strict supervision of an independent medical authority. However, the demarcation line between and remains exceptionally thin and continues to be a subject of intense legal debate. 2.3 Legal differentiation and systematic classification In its technical and jurisprudential sense, chemical castration refers to the strategic deployment of specific medicinal or hormonal substances that induce either a temporary or prolonged suppression of sexual desire in the perpetrator. This is particularly targeted at those convicted of heinous crimes such as rape or sexual aggression against children, with the overarching goal of preventing future criminal recidivism. Legal scholars emphasize the distinction between chemical and surgical methods: the former is limited to a medico-pharmacological intervention that regulates hormonal secretions specifically testosterone without compromising the anatomical integrity or physical structure of the human body.[16] This non-invasive nature has provided a jurisprudential justification for various legislatures to adopt it as a means rather than a traditional punitive sanction. This mechanism has been institutionalized in several sovereign states that have enacted specialized legislation for sex offenders against minors, including Poland, the Czech Republic, the Russian Federation, South Korea, and various jurisdictions within the United States. Consequently, it has become the focal point of a rigorous ethico-legal debate concerning its legitimacy and its compatibility with fundamental human rights principles, most notably the right to bodily integrity and human dignity. Furthermore, a distinction must be drawn between chemical castration and other rehabilitative measures. Unlike standard psychiatric treatments, chemical castration does not necessarily aim to treat a clinical mental disorder in the traditional medical sense; rather, it often functions as a coercive judicial procedure imposed by court order or as a prerequisite for early release. It likewise differs from Psychosexual Therapy, which focuses on behavioral modification through cognitive-behavioral programs without interfering with the body’s endocrine system. 2.3.1 The formal criterion This criterion focuses on the procedural foundation of the measure. A Punishment cannot be imposed except through an explicit statutory text issued by the legislative authority in adherence to the Principle of Legality and can only be enacted via a final judicial verdict following a definitive finding of guilt. In contrast, the Preventive Measure is characterized by greater procedural flexibility; it may be instituted even in the absence of a formal conviction, provided there are clear indicators of criminal risk or the likelihood of recidivism, as seen in therapeutic measures for those lacking full criminal capacity, such as the mentally ill.[17] 2.3.2 The functional criterion This involves identifying the primary objective of the procedure. Punishment is an embodiment of retribution for guilt; it is a social reaction to criminal conduct intended for general and specific deterrence and the realization of justice through desert. Conversely, the Preventive Measure seeks neither retribution nor deterrence in the traditional sense, but rather the Prophylaxis of future danger. It targets the future by addressing the psychological or behavioral catalysts of crime to protect society.[18] 2.3.3 The objective criterion This rests on the nature of the effect the measure has on the individual. Punishment, by its very nature, inflicts pain, hardship, or deprivation, whether of liberty, property, or bodily autonomy. The Preventive Measure, however, aims at reform, rehabilitation, or clinical stabilization. Its foundation is rather than Blame, and its intent is not to cause suffering but to neutralize the threat posed by the individual. 3. Legal Impediments to the Implementation of Chemical Castration within the Algerian Legal System Currently, the Algerian legislator has not formally integrated chemical castration into its punitive arsenal. However, a significant and escalating debate has emerged following recurrent and harrowing cases of sexual assault against minors. Public discourse has increasingly demanded the adoption of such measures, notwithstanding the substantial legal contradictions they present. Article 34 of the Algerian Constitution explicitly mandates that the State shall protect the inviolability of the person and their bodily integrity; no person shall be subjected to torture or inhuman treatment in the Constitutional Amendment, 2020.[19] Furthermore, Article 38 emphasizes that the primary objective of penalties is rehabilitation and social reintegration rather than mere retribution. Consequently, any future legislative initiative aimed at legalizing chemical castration must meticulously balance the collective right to social security with the individual’s fundamental right to physical sanctity. This section elucidates the constitutional, human rights, and practical obstacles facing Algerian criminal policy in this regard. 3.1 Constitutional obstacles to chemical castration The legal nature of chemical castration reflects an evolution in the concept of criminal sanctioning toward an intersection with clinical medicine and preventive science. It is a hybrid procedure that merges punishment with treatment and deterrence with reform. In modern legal systems, it cannot be accepted unless it resides within a framework that respects constitutional mandates and human dignity, subject to rigorous judicial and medical oversight. 3.1.1 Chemical castration and the principle of criminal legality The Principle of Legality is the cornerstone of any penal system. Article 167 of the 2020 Algerian Constitutional Amendment stipulates that Criminal penalties shall be subject to the principles of legality and personality. This is translated in Article 1 of the Penal Code:[20] “No crime, no penalty, and no security measure shall exist without a law”. Furthermore, Article 39 of the Constitution prohibits any physical or moral violence or any infringement upon dignity. Introducing chemical castration as a new sanction raises profound questions regarding its harmony with these principles, especially as it oscillates between a compulsory medical procedure and a punitive retribution. In this context, the World Health Organization (2015) underscores the critical ethical considerations involved in medical treatments that significantly affect the biological and bodily integrity of individuals.[21] The constitutionalization of legality aims to protect individuals from legislative arbitrariness and the expansive interpretation of penal texts. Since chemical castration is absent from the existing Algerian penal repertoire, its adoption would necessitate an explicit, detailed legislative amendment defining its nature, duration, executive authority, and procedural safeguards to avoid violating the principle of non-retroactivity of laws.[22] Similar challenges have arisen in Poland and the Czech Republic, where the constitutionality of such laws was challenged for infringing upon bodily integrity.[23] 3.1.2 Respect for bodily integrity and human dignity The right to physical sanctity is an absolute constitutional right. Article 39 of the Algerian Constitution forbids all forms of torture or degrading treatment. Subjecting an offender to chemical treatment that alters their physiological functions constitutes, in principle, an infringement upon bodily integrity unless performed with free and informed consent under independent medical supervision. The constitutional risk lies in transforming a therapeutic measure into a retributive mutilation, rendering it a form of legalized physical distortion. Some constitutionalists argue this contradicts Article 7 of the International Covenant on Civil and Political Rights,[24] which prohibits non-consensual medical treatment (UN Human Rights Committee, 2018). Conversely, others argue that since it is reversible and non-surgical, it is more humane than long-term incarceration or capital punishment.[25] 3.1.3 The principle of proportionality Legality requires that a penalty be proportionate to both the gravity of the act and the personality of the offender. While theoretically justified by the severity of crimes against children, applying chemical castration without prior psychological profiling and medical guarantees could turn it into a collective penalty that infringes upon the offender’s right to reintegration. The French Constitutional Council (2010) emphasized that any measure affecting the human body must remain subject to voluntary and continuous consent. 3.2 Human rights and ethical impediments 3.2.1 Contradiction with international standards Instruments such as the Universal Declaration of Human Rights and the ICCPR serve as the supreme reference for evaluating sanctions. Moreover, the United Nations Human Rights Council clarifies that non-consensual medical interventions, such as compulsory chemical castration, must be strictly scrutinized to ensure they do not constitute cruel, inhuman, or degrading treatment. Articles 3 and 5 of the Declaration protect the right to life, liberty, and security of a person, prohibiting cruel treatment. Forced chemical castration may be deemed a form of inhuman treatment, inconsistent with international obligations. The UN Committee Against Torture has stated that in the absence of free consent,[26] this procedure represents a violation of Article 16 of the Convention.[27] 3.2.2 The ethical dilemma: state vs. body A philosophical question arises: To what extent can the state interfere with the human body in the name of public safety? Excessive control over the body leads to a violation of bodily liberty. Using the body as an instrument of deterrence risks opening the door to other regressive legislations, such as organ removal or forced medical implants, threatening the balance between security and freedom, a concept famously critiqued by Michel Foucault in his analysis of power and punishment.[28] 3.2.3 Rights to treatment and dignity Under the Nelson Mandela Rules, convicts do not lose their right to dignity or healthcare. If chemical castration were imposed, it must be under an independent medical board and with the offender’s consent. Forcing treatment is a direct violation of Article 10 of the ICCPR,[29] which mandates that all persons deprived of their liberty shall be treated with humanity. 3.2.4 Practical and rights-based challenges in Algeria: Absence of National Framework: The lack of specific legislation makes implementation vulnerable to judicial arbitrariness; Lack of Specialized Cadres: Algeria currently lacks sufficient medical-legal expertise to supervise such complex hormonal interventions; Risk of Misuse: Potential for misuse in social or political contexts against marginalized groups; Supervision: The absence of independent medical-judicial oversight could lead to grave human rights violations. 3.3 Position of Algerian jurisprudence While Algerian legal scholars have yet to reach a definitive consensus, many incline toward rejecting chemical castration because it is an unjustified breach of bodily integrity. They argue that deterrence can be achieved through aggravated custodial sentences and psychological security measures. This contrasts with comparative jurisprudence, which is split: a supporting trend viewing it as a preventive-therapeutic tool, and an opposing trend viewing it as a cruel, retributive practice that fails to address the root causes of criminality. Conclusion In conclusion, it can be asserted that the issue of chemical castration represents one of the most complex and sensitive legal and human rights dilemmas in contemporary jurisprudence. It reflects the intricate and often tense relationship between the collective imperatives of social defense and the fundamental constitutional obligation to respect inherent human dignity. This subject raises a core problematic concerning the boundaries of the State’s punitive authority and the normative constraints that should govern legislative intervention when it pertains to the sanctity of the human body. The persistent tension between the preventive-prophylactic dimension of chemical castration and its punitive-deterrent character makes it exceptionally difficult to categorize within a singular legal framework, as it simultaneously embodies the characteristics of a criminal sanction and a therapeutic measure. Although grounded in the Algerian legal framework, the findings of this study are transferable to other legal systems confronting similar debates on hybrid preventive sanctions, particularly in jurisdictions balancing crime prevention with constitutional guarantees of human dignity. Furthermore, this study reveals that the discourse surrounding chemical castration transcends purely legal considerations, extending into ethical, clinical, and sociological dimensions that touch upon the very heart of the philosophy of criminal justice. The debate remains polarized between those who perceive it as a progressive mechanism for offender rehabilitation and communal protection, and those who condemn it as an egregious violation of bodily integrity and the inviolability of the human person. The ultimate challenge remains the reconciliation of society’s right to security with the individual’s right to physical and moral autonomy, within the context of the rapid transformations characterizing modern criminal policy. Research Findings Through the systematic analysis conducted in this study, the following findings have been established: Hybrid Legal Nature: The analysis confirms that chemical castration is a hybrid procedure that amalgamates punitive, medical, and preventive characteristics. Formally, it is typically enacted via a judicial verdict; objectively, it inflicts a temporary physical deprivation; yet its primary teleological goal is preventive, aimed at the neutralization of criminal recidivism; Diverse International Outcomes: The study of varied international experiences, including Poland, the Czech Republic, Russia, the United States, and South Korea, demonstrates that when chemical castration is integrated with comprehensive rehabilitative programs and rigorous supervision, it leads to a statistically significant reduction in recidivism rates. However, these successes are accompanied by severe constitutional and human rights risks in instances of forced application or the absence of procedural safeguards; Constitutional and Human Rights Tensions: From a constitutional perspective, chemical castration raises fundamental issues regarding the Principle of Legality, the right to bodily integrity, and the sanctity of human dignity. It also intersects with Algeria’s international obligations under the Convention Against Torture and other human rights instruments; Infrastructural Requirements: On a practical and clinical level, the implementation of any chemical castration program necessitates a specialized medical-judicial infrastructure, continuous clinical monitoring, and an independent assessment of the risk-benefit ratio, supported by scientific tracking systems; The Algerian Context: While chemical castration remains a debatable option in Algeria if framed as a voluntary, legally regulated therapeutic choice, it faces categorical opposition if applied coercively. Adopting it as a mandatory penalty is fraught with grave constitutional and human rights perils. Recommendations and Proposals Based on the aforementioned findings, the researcher proposes the following recommendations to the Algerian legislator and judicial authorities: Avoidance of Mandatory Penalties: We recommend abstaining from enacting mandatory chemical castration as a criminal penalty in response to populist or public pressure. Such a move would entail significant constitutional risks that conflict with the fundamental rights enshrined in the Algerian Constitution and international conventions; Establishment of a Voluntary Legal Framework: Should the legislator consider this path, it must be within a strictly limited and optional framework. Chemical castration should only be offered as a voluntary, temporary therapeutic alternative and a condition for parole, provided it is requested by the convict freely and after exhausting other rehabilitative means; Mandatory Informed Consent: A prerequisite for any pharmacological intervention must be the explicit, written, and informed consent of the individual. This consent should only be valid after a comprehensive clinical briefing and the approval of a sworn psychiatrist, with the offender retaining the right to withdraw from treatment at any time without additional penal consequences; Judicial Oversight and Due Process: Any decision to apply this measure must be based on a final judicial verdict, supported by independent medical and psychological reports proving the danger of recidivism. Robust mechanisms for appeal and periodic judicial review must be available before a competent court; Formation of a Multi-disciplinary Oversight Commission: We propose the creation of an independent Medio-Judicial Committee comprising specialists (Psychiatrists, Urologists, Endocrinologists), legal experts, and human rights representatives. This commission would be tasked with evaluating cases, supervising the implementation, and submitting periodic reports to the judiciary; Adherence to International Standards and Transparency: Any legislation concerning chemical castration must demonstrate absolute compliance with the Convention Against Torture and the ICCPR. Transparency must be maintained through the publication of periodic reports accessible to international human rights mechanisms and the national public. References scholarly Literature: Abdul Ghani, K. (2019). The general theory of punishment in criminal law: A study in the philosophical and functional foundations of punishment and precautionary measures. Dar al-Fikr al-Jamaii. [in Arabic]; Abu al-Khair, S. (2021). Precautionary measures in contemporary criminal policy: A study in concept, legal nature, and practical effects. Dar al-Matbouat al-Jami’iyah. [in Arabic]; Ahmed, M. (2020). Alternative sanctions in contemporary criminal policy: A comparative study between precautionary measures and custodial penalties. Dar al-Nahda al-Arabiya. [in Arabic]; Al-Zuhayli, W. (2006). Islamic jurisprudence and its evidence (4th). Dar al-Fikr. Cairo. [in Arabic]; Berger, R. (2020). Chemical castration and human rights: Legal and ethical perspectives. Cambridge University Press; Boucheir, A. (2021). The Algerian constitutional system after the 2020 amendment. Office of University Publications (OPU). [in Arabic]; Çöpür, M., Çöpür, S. (2021). Chemical castration as an evolving concept: Is it a possible solution for sexual offences? The Journal of Forensic Psychiatry & Psychology, 32(1); Foucault, M. (1995). Discipline and punish: The birth of the prison. Vintage Books; Kim, S., Cho, S. (2010). Chemical castration for sexual offenders in Korea: Analysis and proposal for legislation. Korean Journal of Legal Medicine, No. 34; Lee, J. Y., Cho, K. S. (2013). Chemical castration for sexual offenders: Physicians’ views. Journal of Korean Medical Science, 28(2); Miftahzen, H. R., Kamila, S. (2025). Chemical castration punishment: An international human rights law perspective. Realism: Law Review, 3(1); Mohamadi, I. (2022). Modern trends of the punitive policy in facing sexual crimes. Journal of Contemporary Legal Studies, (27). [in Arabic]; Ohoiwutun, Y. A. T., Putra, G. A., Taniady, V. (2026). Integrating psychiatric assessment in chemical castration sanctions for child sexual offenders in Indonesia. Sriwijaya Law Review, 10(1); Schmucker, M., Lösel, F. (2008). Does sexual offender treatment work? A systematic review of outcome evaluations. Psychological Bulletin, 13(1); Smith, J. (2019). Criminal law and human rights in modern justice systems. Oxford University Press; Sugiana, D., Rosmery, M., Amalia, R. (2022). Analysis of chemical castration punishment for sexual crimes perpetrators in view of human rights (Case study of sexual harassment of 14 Santriwati in Bandung Regency). Journal of Citizenship, 6(1); Thibaut, F., De La Barra, F., Gordon, H., Cosyns, P., Bradford, J. M. (2019). The World Federation of Societies of Biological Psychiatry (WFSBP) guidelines for the biological treatment of paraphilias. The World Journal of Biological Psychiatry, No. 11; Zimring, F. E. (2019). The changing legal world of adolescence. Oxford University Press. Normative Acts: United Nations International Covenant on Civil and Political Rights, December 16, 1966, 999 U.N.T.S. 171. <https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights>. Ordinance No. 66-156, June 8, 1966, Algerian Penal Code, (as amended and supplemented). [in Arabic]; Law of California No. 794, September 21, 1996, Chemical Castration of Sex Offenders; Law No. 20-16, December 30, 2020, containing the Constitutional Amendment, Official Gazette N 82. [in Arabic]; Supplementary Materials: European Committee for the Prevention of Torture (CPT). (2017). 27th General Report of the CPT. Council of Europe; French Ministry of Justice. (2020). Report on the implementation of preventive measures and sanctions against perpetrators of sexual crimes in France. General Directorate of Criminal Affairs and Pardons; United Nations Committee against Torture. (2008). General comment No. 2: Implementation of article 2 by States parties (CAT/C/GC/2). United Nations; United Nations Human Rights Council. (2019). Report on the protection of human dignity in criminal sanctions. <https://undocs.org/A/HRC/42/20>; World Health Organization. (2014). Health care for women subjected to intimate partner violence or sexual violence: A clinical handbook. <https://iris.who.int/server/api/core/bitstreams/3e906b26-c609-4a2f-9cf6-c1c42f186809/content>. Footnotes [1] Miftahzen, H. R., Kamila, S. (2025). Chemical castration punishment: An international human rights law perspective. Realism: Law Review, 3(1), 18. [2] Lee, J. Y., Cho, K. S. (2013). Chemical castration for sexual offenders: Physicians’ views. Journal of Korean Medical Science, 28(2), 171–172. [3] Schmucker, M., Lösel, F. (2008). Does sexual offender treatment work? A systematic review of outcome evaluations. Psychological Bulletin, 13(1), 97–127. [4] Mohamadi, I. (2022). Modern trends of the punitive policy in facing sexual crimes. Journal of Contemporary Legal Studies, (27), 45–67. [5] Al-Zuhayli, W. (2006). Islamic jurisprudence and its evidence (4th ed.). Dar al-Fikr. Cairo, 185. [6] European Committee for the Prevention of Torture (CPT). (2017). 27th General Report of the CPT. Council of Europe. [7] Thibaut, F., De La Barra, F., Gordon, H., Cosyns, P., Bradford, J. M. (2019). The World Federation of Societies of Biological Psychiatry (WFSBP) guidelines for the biological treatment of paraphilias. The World Journal of Biological Psychiatry, No. 11, 604–655. [8] Kim, S., Cho, S. (2010). Chemical castration for sexual offenders in Korea: Analysis and proposal for legislation. Korean Journal of Legal Medicine, No. 34, 101–110. [9] Sugiana, D., Rosmery, M., Amalia, R. (2022). Analysis of chemical castration punishment for sexual crimes perpetrators in view of human rights (Case study of sexual harassment of 14 Santriwati in Bandung Regency). Journal of Citizenship, 6(1). [10] Çöpür, M., Çöpür, S. (2021). Chemical castration as an evolving concept: Is it a possible solution for sexual offences? The Journal of Forensic Psychiatry & Psychology, 32(1), 1–26. [11] Ahmed, M. (2020). Alternative sanctions in contemporary criminal policy: A comparative study between precautionary measures and custodial penalties. Dar al-Nahda al-Arabiya. [12] Law of California No. 794, September 21, 1996, Chemical Castration of Sex Offenders. [13] French Ministry of Justice. (2020). Report on the implementation of preventive measures and sanctions against perpetrators of sexual crimes in France. General Directorate of Criminal Affairs and Pardons. [14] Ohoiwutun, Y. A. T., Putra, G. A., Taniady, V. (2026). Integrating psychiatric assessment in chemical castration sanctions for child sexual offenders in Indonesia. Sriwijaya Law Review, 10(1), 109–125. [15] Zimring, F. E. (2019). The changing legal world of adolescence. Oxford University Press. [16] Schmucker, M., Lösel, F. (2008). Does sexual offender treatment work? A systematic review of outcome evaluations. Psychological Bulletin, 13(1), 97–127. [17] Abu al-Khair, S. (2021). Precautionary measures in contemporary criminal policy: A study in concept, legal nature, and practical effects. Dar al-Matbouat al-Jami’iyah. [18] Abdul Ghani, K. (2019). The general theory of punishment in criminal law: A study in the philosophical and functional foundations of punishment and precautionary measures. Dar al-Fikr al-Jamaii. [19] Law No. 20-16, December 30, 2020, containing the Constitutional Amendment, Official Gazette N 82. [20] Ordinance No. 66-156, June 8, 1966, Algerian Penal Code, (as amended and supplemented). [21] World Health Organization. (2014). Health care for women subjected to intimate partner violence or sexual violence: A clinical handbook. <https://iris.who.int/server/api/core/bitstreams/3e906b26-c609-4a2f-9cf6-c1c42f186809/content>. [22] Boucheir, A. (2021). The Algerian constitutional system after the 2020 amendment. Office of University Publications (OPU). [23] Smith, J. (2019). Criminal law and human rights in modern justice systems. Oxford University Press. [24] United Nations Human Rights Council. (2019). Report on the protection of human dignity in criminal sanctions. <https://undocs.org/A/HRC/42/20>. [25] Berger, R. (2020). Chemical castration and human rights: Legal and ethical perspectives. Cambridge University Press. [26] United Nations Committee against Torture. (2008). General comment No. 2: Implementation of article 2 by States parties (CAT/C/GC/2). United Nations. [27] United Nations Human Rights Council (2019), op. cit. [28] Foucault, M. (1995). Discipline and punish: The birth of the prison. Vintage Books. [29] United Nations International Covenant on Civil and Political Rights, December 16, 1966, 999 U.N.T.S. 171, Art. 10. <https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights>.
Chemical castration; sexual crimes; human dignity; principle of legality; human rights.
Precarious Legal Status and the Protection of Migrant Workers’ Rights: An International Compliance Analysis of Algerian Law
Labour migration is considered one of the most significant forms of human mobility today, as individuals seek to improve their living conditions by pursuing employment opportunities beyond their countries of origin. The impact of migrant workers extends beyond their personal and familial economic stability, contributing to two broader developmental goals: fostering socio-economic progress and reducing poverty in their home countries through remittances, and supporting labour market demands and economic activity in host states. Despite these vital contributions, migrant workers remain among the groups most exposed to vulnerability, owing to precarious working conditions, restrictive migration policies, and the limited effectiveness of existing legal protection mechanisms. Against this background, this research examines the principal challenges that hinder the strengthening of legal protection for migrant workers. It further assesses the extent to which current national and international frameworks align with the relevant international instruments, while exploring possible approaches to enhancing these protective measures to ensure the full respect of migrant workers’ rights and fundamental freedoms. Keywords: Migrant workers, protection, rights, national legislation, international instruments. Introduction The individual’s right to freedom of movement, including the right to leave one’s country for any other State, is enshrined in numerous international instruments. These guarantees were first recognized in Article 13(2)[1] of the 1948 Universal Declaration of Human Rights,[2] followed by Article 12[3] of the 1966 International Covenant on Civil and Political Rights,[4] as well as in various instruments issued by the International Labour Organization (ILO), which aim to safeguard the rights and interests of workers, including migrant workers who cross national borders in search of employment opportunities that ensure a dignified life for themselves and their families.[5] Given that migrant workers constitute a vulnerable category requiring protection—not only in terms of guaranteeing their right to work, but also in safeguarding their fundamental human rights due to the serious violations they often face—the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families[6] was adopted. This Convention represents the first United Nations instrument specifically aimed at enhancing the protection of migrant workers’ rights. Migrant labor constitutes approximately 10% of the workforce in Western Europe and 15% in North America, while these percentages are even higher in certain African countries and the Middle East, where foreign workers make up a significant portion of the labor force.[7] According to ILO statistics, the Arab region, including the Middle East and the Gulf Cooperation Council, hosted approximately 24.1 million migrant workers in 2019, representing 49% of the workforce in the region, compared to 4.9% globally. Furthermore, the total number of migrant workers increased to 169 million in 2021, more than triple the 53 million recorded in 2010, representing 5% of the global labor force compared to less than 2% in 2010.[8] The need to enhance the protection of migrant workers and supervision of the implementation of adopted measures is pressing, beyond ensuring adequate working conditions and social security coverage.[9] While the rights of migrant workers are widely addressed in international law, there is a paucity of research examining how precarious or irregular legal status constrains the effective realization of these rights within national legal frameworks, particularly in North African countries such as Algeria. Compared to national workers, migrant workers face numerous challenges arising from the legal frameworks of host States, which create additional barriers to accessing their internationally guaranteed rights. Accordingly, this study seeks to fill this gap by analyzing the relationship between the legal status of migrant workers and the protection of their rights in Algeria, identifying the legislative and institutional factors that limit the practical enforcement of rights for both documented and undocumented workers. This research aims to contribute to scholarly understanding of how precarious legal status impacts the enjoyment of labor rights, and to provide practical recommendations for strengthening legal protections for all migrant workers. In this context, the study addresses the following central research question: To what extent does the precarious legal status of migrant workers affect their ability to enjoy legal protection within the Algerian legal system? To address this central question and its related inquiries, this research paper is structured into two main sections: 1. Migrant workers and the foundations of international protection; 2. Protection of migrant workers in national legislations and the challenges they face. Methodology The study is based on a doctrinal legal analysis, examining key international legal instruments concerning the rights of migrant workers, including the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, ILO Convention No. 97 of 1949, and ILO Convention No. 143 of 1975, in addition to Algerian national legislation on foreign labor and relevant interpretative documents. The research combines descriptive and analytical methods, relying on primary sources such as international and national legal texts, alongside academic studies and official reports. This approach aims to identify legislative gaps, elucidate the legal challenges faced by migrant workers, and formulate practical recommendations to strengthen the protection of their rights. Algeria has been selected as the case study country due to its relevance as both a typical and a critical example among migrant-receiving states. On the one hand, Algeria represents a typical case insofar as it hosts a significant population of migrant workers while operating within a legal framework characterized by restrictive migration policies and fragmented regulation of foreign labor—features commonly observed in several migrant-receiving countries. On the other hand, it constitutes a critical case because it reveals systemic challenges in reconciling formal international legal commitments with effective domestic implementation. The persistence of a precarious legal status for migrant workers, coupled with limited enforcement mechanisms, highlights structural gaps between international standards and national practice. Analyzing the Algerian legal framework therefore allows for a meaningful assessment of compliance with international obligations and provides insights into broader structural issues affecting migrant workers’ rights in comparable legal systems. The study does not employ quantitative or statistical methods; instead, it focuses on legal text analysis, comparative legislative review, and the exploration of the legal and rights-based dimensions of migrant worker protection, while providing actionable recommendations to enhance the effective implementation of international standards at the national level. Migrant Workers and the Foundations of International Protection Before examining the foundations of international law in shaping the legal protection afforded to migrant workers, it is essential first to clarify the concept of a migrant worker. Who qualifies as a migrant worker? Does this term encompass both regular and irregular workers? The Conceptual Definition of Migrant Workers The definition of a migrant worker is provided in Article 2(1) of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which states: “A migrant worker is a person who is to be engaged, is engaged, or has been engaged in a remunerated activity in a State of which he or she is not a national”. To avoid potential overlaps or ambiguities, Article 3 of the same Convention provides a list of categories of persons to whom the definition of a migrant worker does not apply. These include: officials of international organizations; government officials; persons sent or employed by a State, or on its behalf, outside its territory; persons participating in development programmes or other forms of cooperation; investors; refugees and stateless persons; students and trainees; and seafarers and workers on offshore installations who have not been authorized to reside and engage in remunerated activities in the State of employment. Furthermore, the Convention provides a specific definition of the concept of family members of migrant workers, particularly since it is formally entitled “The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families” Article 4 states: “…the term ‘members of the family’ refers to persons married to migrant workers or having with them a relationship that, according to applicable law, produces effects equivalent to marriage; as well as their dependent children and other dependent persons who are recognized as members of the family in accordance with applicable legislation or relevant bilateral or multilateral agreements between the concerned States”. Notably, this article relies heavily on national legislation, granting State Parties flexibility in determining who qualifies as a family member under their domestic legal systems. However, this approach may result in significant disparities in protection between States, potentially creating situations of discrimination or depriving certain categories of individuals of the rights guaranteed under the Convention. The Foundations of International Protection for the Rights of Migrant Workers The discussion of the right to work necessarily leads to the International Labour Organization (ILO), established in 1919, which is exclusively mandated to protect the rights of all individuals who possess the status of “worker”, regardless of their legal position, including migrant workers, whether in a regular or irregular situation. The ILO has adopted several instruments dedicated to this category, notably: Convention No. 97 of 1949 on Migrant Workers[10] This was the first ILO Convention to focus exclusively on migrant workers.[11] It entered into force on 22 January 1952 and comprises 32 articles and three annexes. The Convention emphasizes the necessity of respecting the principle of equality of treatment between migrant workers lawfully present in the host State and the nationals of that State regarding their rights and guarantees. It further requires that migrant workers be allowed to transfer their earnings and savings and mandates the establishment of medical units responsible for verifying the health conditions of migrant workers both upon departure and upon arrival. Although Convention No. 97 suffers from a low ratification rate, it has nevertheless played a fundamental role in shaping the legal discourse on migration and continues to influence bilateral labour agreements. This Convention served as a precursor to later instruments, such as Convention No. 143 and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICMW). Its legal provisions continue to function as a normative reference in ILO jurisprudence and in contemporary migration policies. Convention No. 143 of 1975 concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers[12] Adopted on 24 June 1975 and entering into force on 3 December of the same year, this Convention comprises 24 articles. Through this instrument, the ILO underscored the necessity of respecting the human rights of all migrant workers, eliminating clandestine migration for employment, and combating the irregular employment of migrants. It also introduced an important provision—absent from earlier instruments—in Article 8, which stipulates that the loss of employment by a migrant worker lawfully residing in the State shall not affect his legal status, nor shall it, under any circumstances, lead to the withdrawal of his residence permit. The Convention reinforces the principle of equality of opportunity and treatment regarding the working conditions of migrant workers lawfully present in a State’s territory.[13] It calls upon States to adopt all necessary measures to prevent the unlawful employment of migrant workers and to facilitate the reunification of their families, including spouses, children, and parents. Furthermore, the Convention ensures that migrant workers—including those in an irregular situation—have the right to present their claims before a competent authority in disputes concerning their rights. This provision is vital to guarantee that all workers, regardless of their legal status, can access legal remedies and are protected against exploitative practices by employers. It is evident from this Convention that it establishes a precise distinction between the rights granted to irregular migrant workers and the broader labour and social entitlements guaranteed to those in a regular situation, aiming to balance humanitarian protection with the sovereign prerogatives of States in regulating migration. While the Convention’s legal character is widely recognized, its practical impact has been affected by the limited scope of ratification. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (1990) Following the United Nations’ affirmation that the promotion and protection of the rights of migrant workers are fully aligned with human rights principles, the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (ICRMW) was adopted in 1990, becoming the first comprehensive international instrument dedicated to safeguarding the rights of migrant workers. It is classified among the “core international human rights instruments” as defined by the Office of the United Nations High Commissioner for Human Rights.[14] As of November 2025, 60 States had ratified the Convention, most of which are migrant-sending countries. Zimbabwe became the most recent State Party in 2024. This remains a relatively limited number when measured against the Convention’s importance and global relevance. The Convention seeks to establish minimum standards that States Parties must apply to migrant workers and their families falling under their jurisdiction. It calls for measures to prevent clandestine movements and trafficking of migrant workers, while ensuring their protection under fundamental human rights standards. The Convention comprises 93 articles organized into nine parts, which define the categories of individuals covered, including both regular and irregular migrant workers. It affirms the principle of equal treatment among all workers -nationals, regular migrants, and irregular migrants- while providing broader rights and enhanced protections to regular migrant workers. It enumerates a wide range of rights, encompassing general human rights as well as labour-specific rights, such as the right to life, liberty, freedom from torture or inhuman treatment, and freedom of opinion and expression, among others.[15] With respect to economic, social, and cultural rights, the Convention draws extensively from the International Covenant on Economic, Social, and Cultural Rights (ICESCR). Article 32 grants migrant workers and their families the right to transfer their earnings, savings, personal belongings, and household effects upon the end of their stay. In the event of death, States Parties must facilitate, where necessary, the repatriation of the remains of deceased migrant workers and their family members. Some scholars argue that, in certain respects, the Convention is more restrictive than the aforementioned Covenant.[16] A significant development introduced by the Convention is its recognition, for the first time, of the right of migrant workers to join trade unions under Article 40, thereby affirming their right to trade-union representation aimed at protecting and promoting their economic, social, cultural, and other interests. The Convention also prohibits any person—other than an authorized public official—[17] from confiscating a migrant worker’s identity documents under any circumstances. Furthermore, the Convention guarantees the right of undocumented or irregular migrant workers to receive urgent medical care. Under Article 29, children of migrant workers have the right to a name, birth registration, and nationality. They are also entitled to access education on an equal basis with nationals, and their admission to preschool or public educational institutions may not be denied due to the irregular status of either parent. Protection of Migrant Workers in National Legislation and the Challenges Faced The implementation of any international convention requires ensuring harmony between its provisions and the domestic legislation of the States that have ratified it. Accordingly, aligning national legislation with the ratified international instruments becomes a necessary legal obligation. In this regard, it is noteworthy that Algeria has taken care to accede to several international conventions concerning migrant workers, beginning with ILO Convention No. 97 of 1949 on Migrant Workers, ratified on 19 October 1962, as well as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, which Algeria ratified pursuant to Presidential Decree No. 04-441 of 29 December 2004. The Legal Framework Governing the Employment Conditions of Foreign Nationals in Algeria The Algerian Labour Law No. 90-11 of 21 April 1991, as amended and supplemented, does not contain provisions specifying the conditions for employing foreign labour in Algeria. It merely stipulates, under Article 21, that employers may resort to hiring foreign workers whenever qualified national labour is unavailable, thereby referring the regulation of foreign workers’ employment to other regulatory texts—most notably Law No. 81-10[18] concerning the conditions of employment of foreign workers. This law sets out several substantive and procedural requirements governing the employment of foreign nationals, emphasizing that any foreigner intending to engage in remunerated activity in Algeria must hold either a work permit or a temporary work authorization issued by the competent authorities.[19] While these provisions provide a formal regulatory framework, a compliance assessment against international standards reveals significant gaps. According to ILO Conventions No. 97 and No. 143, as well as the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, states are required to ensure that migrant workers—regardless of documentation—enjoy equal protection and access to employment rights. However, as Freedland and Costello note, migration law plays a decisive role in creating status-based distinctions in the application of labour law, determining whether individuals are allowed to work “legally” or are classified as “illegal” or “undocumented” workers, a division that constitutes “one of the most basic distinctions in personal work status” and directly affects the scope of labour protection available to them.[20] In comparison, Algeria’s framework primarily addresses documented workers and imposes restrictions, such as fixed-term contracts, which do not fully align with the principle of non-discrimination and equal treatment under international law. Furthermore, the legal requirement that foreign workers’ residence and employment status be contingent upon specific authorizations reinforces a condition of dependency and precarity, which, according to comparative labour law scholarship, exposes migrant workers to heightened vulnerability and limits their effective access to labour rights. Comparative examples from countries with stronger migrant protection regimes show that mechanisms such as automatic contract renewal, legal safeguards for irregular workers, and accessible complaint procedures are essential for ensuring effective compliance with international standards. Moreover, pursuant to Article 10 of Law No. 81-10, and in contrast to employment contracts concluded with national workers—which are presumed to be of indefinite duration unless otherwise provided by law—contracts concluded with foreign workers must necessarily be fixed-term, with a maximum duration of two years, renewable only upon issuance of a work permit. In cases where a temporary work authorization is granted, the employment contract must be limited to a period of three months or less, and such authorization may not be renewed more than once per year. Under no circumstances may the renewal of either a work permit or a temporary work authorization result in reclassifying a fixed-term contract into an indefinite-term contract. From an international compliance perspective, these limitations demonstrate a partial alignment with core conventions. While Algeria provides fundamental rights such as remuneration and social security coverage, the restrictions on contract duration and renewal, and the exclusion of undocumented workers from many protections, highlight non-compliance with the minimum standards of ILO and UN conventions. This gap is not unique to Algeria, but comparative analysis shows that countries with stronger enforcement mechanisms ensure that all migrant workers, including those in irregular status, can exercise their labor rights effectively, thus fully meeting international obligations. The law guarantees foreign workers most of the rights enjoyed by any worker in Algeria, including the right to receive remuneration[21] and to benefit from social security coverage against various risks. Article 28 of Law No. 08-11[22] concerning the conditions of entry, residence, and movement of foreigners in Algeria requires that the employment of a foreign national be declared within 48 hours to the territorially competent services of the ministry in charge of employment. In the absence of such services, the declaration must be submitted to the territorially competent police department or gendarmerie unit. From the foregoing, it is evident that the protection of migrant workers’ rights under Algerian legislation remains limited and fragmented and is largely oriented toward documented workers. National legal provisions have not yet fully incorporated the core international conventions governing migrant workers’ rights, thereby revealing a clear gap between Algeria’s international obligations and its domestic legal framework. In this context, the fragmentation of international labour standards, together with their inadequate transposition and practical implementation at the national level, constitutes one of the principal challenges to the effective protection of migrant workers’ labour rights.[23] Consequently, it can be concluded that the legal protection currently afforded to migrant workers in Algeria is partial and largely confined to regular workers. This situation underscores the pressing necessity for a comprehensive reform of national legislation and the establishment of robust protective mechanisms capable of ensuring full compliance with international human rights and labour standards, thereby guaranteeing equal legal protection for all migrant workers irrespective of their legal status. Challenges to the Protection of Migrant Workers’ Rights Migration has a significant impact on the global economy. Accordingly, it is essential to recognize that the contributions of migrants to the economies and societies of host countries, as well as to the development of their countries of origin, depend on legal protection and the acknowledgment of their human rights by these states.[24] Although there is a continuous emphasis on the necessity of ensuring protection for all migrant workers, regardless of their legal status in the host country, the reality demonstrates the exact opposite. Migrant workers continue to face various forms of abuse and exploitation,[25] particularly those engaged in temporary or seasonal work, those in an irregular situation, or those lacking the required documentation. They are frequently subjected to deceptive recruitment practices, the absence of written employment contracts, non-payment or underpayment of wages, and the confiscation of identity documents—as observed in certain sponsorship systems—despite the explicit legal prohibition of such practices. They may additionally suffer from limited awareness of their rights and applicable laws, fear of identity disclosure leading to arrest and deportation, and restricted access to social services. According to Gleeson,[26] fear of detection and deportation significantly discourages undocumented workers from asserting their labour rights, rendering legal protections largely ineffective in practice. In this context, the case of Chowdury and Others v. Greece (30 March 2017) constitutes a significant judicial precedent in the field of migrant workers’ rights protection. The case involved 42 Bangladeshi workers recruited to work in strawberry harvesting at a farm in the Manolada region of Greece without obtaining work permits. Their employers failed to pay their wages and compelled them to work under harsh physical conditions under the supervision of armed guards. Several workers were shot by the guards while claiming their rights, resulting in dozens of injuries. The European Court of Human Rights (ECHR) held that the situation amounted to human trafficking and forced labor, and that the Greek State had failed to prevent trafficking, protect the victims, conduct an effective investigation, and punish those responsible. This judgment represents a landmark precedent, as it was the first time that an international court condemned a Member State for the exploitation of irregular migrant workers, establishing the principle that the right to protection cannot be nullified by the irregular legal status of the worker.[27] Similarly, the case of Zoletic and Others v. Azerbaijan (07 October 2021) illustrates another dimension of the exploitation faced by migrant workers. The claimants filed complaints regarding inhumane living and working conditions, non-payment of wages, occupational discrimination, restrictions on freedom of movement, and health hazards in the workplace. The ECHR ruled that an employee’s prior consent is insufficient if their vulnerability or legal status is exploited; in other words, the exploitation of vulnerability distinguishes lawful work from forced labor. The Court further emphasized the State’s responsibility to ensure the protection of all workers, including undocumented migrants, from violations and exploitation, and to adopt preventive measures safeguarding their fundamental rights.[28] In the Algerian context, undocumented migrant workers face similar structural challenges: the national legal framework primarily protects documented workers, while irregular workers remain exposed to exploitation and have limited access to legal remedies. An analysis of these European precedents demonstrates that the legal status of migrant workers is a decisive factor in determining the scope and effectiveness of rights protection. Accordingly, these cases function not merely as illustrative examples but as analytical tools to identify legislative gaps, understand how precarious legal status undermines rights, and propose reforms that could strengthen protection for all workers, including those in irregular situations. Consequently, these judicial precedents underscore the urgent need for Algeria to establish a comprehensive protection framework, incorporating effective enforcement mechanisms and preventive measures to ensure that all migrant workers, regardless of their legal status, can exercise their fundamental rights. The most important of these mechanisms include the following: Harmonizing national legislation with international conventions, as this strengthens legal protection and reduces the exploitation gaps that often arise from legislative ambiguity; Strengthening labour inspectorates with robust monitoring mechanisms is crucial to ensure employer compliance with legal standards and to address violations effectively. Research shows that the protection of migrant workers’ rights relies not only on legislative frameworks but also on the effectiveness of enforcement. In practice, legal protection is measured not by what is written in law but by its actual implementation, which explains the wide gap between countries that rigorously apply international standards and those that merely acknowledge them;[29] Promoting fair and adequate working conditions, ensuring minimum wage guarantees, and facilitating access to decent and healthy living conditions for migrant workers; Enabling migrant workers to join trade unions without restrictions and ensuring their representation in social dialogue, which constitutes a fundamental pillar of their protection; Coordinating efforts among states through bilateral or multilateral agreements aims to ensure the protection of migrant workers’ rights. This cooperation focuses on establishing binding mechanisms through which states commit to monitoring the conditions of migrant workers, exchanging information related to employment contracts, working conditions, and potential violations, in addition to enforcing legal rights and safeguarding workers in the event of any infringement. This international framework enables joint action to prevent exploitation and ensures the effective implementation of international legal standards;[30] Implementing permanent monitoring mechanisms of migrant workers’ conditions and preparing regular reports to assess compliance with their rights and identify the issues and challenges they face; Coordinating efforts with institutional actors and non-governmental organizations to provide legal and social support for migrant workers and safeguard their fundamental rights. Conclusion Migration is a global phenomenon accompanied by numerous challenges, among which the protection of migrant workers stands out as a key concern. This study demonstrates that the precarious legal status of migrant workers in Algeria directly restricts the effective realization of their rights, affecting access to fair remuneration, social security, and legal recourse in cases of abuse or exploitation. Workers in irregular situations are particularly vulnerable, as the legal framework primarily addresses documented labour, leaving undocumented workers exposed to unsafe working conditions and limited enforcement of their fundamental rights. The analysis of the Algerian case highlights several specific findings: first, national legislation, while formally providing for basic labour rights, remains fragmented and largely confined to regular workers, failing to fully incorporate the provisions of core international conventions, including ILO Conventions No. 97 and 143, and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Second, the implementation gap and administrative limitations exacerbate workers’ vulnerability, illustrating how precarious legal status functions as a structural barrier to the enjoyment of rights. Third, comparative references to international standards show that effective protection requires not only legal provisions but also coordinated enforcement mechanisms and political commitment, which remain underdeveloped in the Algerian context. Accordingly, this research advances existing academic understanding by demonstrating that the legal status of migrant workers is not merely a formal condition but a decisive factor shaping the realization of their rights. The study’s findings underscore the pressing need for a comprehensive reform of national legislation, the establishment of robust protective mechanisms, and the incorporation of international standards into domestic law. Such measures are essential to guarantee equal legal protection for all migrant workers in Algeria, irrespective of their documentation, and to enhance the country’s contribution to global labour rights protection. Based on these conclusions, several legal recommendations can be proposed: Encouraging states to ratify the Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, as it constitutes a guiding framework for states and an important legal instrument for national and international organizations concerned with protecting and promoting the rights of migrant workers; Conducting a comprehensive review of national legislation by expanding the scope of fundamental rights and protections to include all migrant workers, regardless of their legal status, in addition to developing effective protection mechanisms that ensure compliance with international human rights and labour standards; Strengthening cross-border legal cooperation through bilateral and multilateral agreements under which states commit to monitoring and safeguarding the rights of migrant workers; Enhancing substantive and procedural safeguards in labour laws by integrating international standards into national legislation and developing effective enforcement mechanisms to ensure the practical protection of labour rights. References Scientific literature: Al-Kalash, L. M. H. (2018). International and national freedoms and fundamental rights of migrant workers. Master’s thesis, College of Law, Middle East University, Jordan; Ali Al-Din Ahmed, R. (2018). The legal status of the migrant worker: A study in light of the rules of international treaty law and national legislation. Journal of Legal and Economic Research, 65; Artemov, V., Simonenko, O., Zhalubak, V., Mykhailyk, O., Borsuk, N. (2025). Legal Mechanisms for Protecting Migrants’ Labour Rights in Host Countries. Revista Jurídica Portucalense, 1(38). <https://doi.org/10.34625/issn.2183-2705(38)2025.ic-20>; Ben Taher, A. (2020). International protection of migrant workers’ rights within the framework of the International Labour Organization and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Journal of Humanities, University of Oum El Bouaghi, 7(2); Costello, C., Freedland, M. (2014). Migrants at work: Immigration and vulnerability in labour law. Oxford University Press; Gleeson, S. (2010). Labor Rights for All? The Role of Undocumented Immigrant Status for Worker Claims Making. Law & Social Inquiry, 35(3). <https://doi:10.1111/j.1747-4469.2010.01196>; Muslim, S., Hadiwinata, K., Khoirunnisa, R., Hadiyantina, S., Ayub, Z. A. (2024). ILO conventions and migrant workers: Construction of protection in national labor law. NURANI: Jurnal Kajian Syari’ah dan Masyarakat, 24(2). <https://doi.org/10.19109/nurani.v24i2.22152>; Nafziger, J. A. R., & Bartel, B. C. (1991). The migrant workers convention: Its place in human rights law. International Migration Review, 25. <https://doi.org/10.1177/019791839102500406>; Servais, J.-M. (2019). International migration and labour law. Journal of Comparative Labour and Social Security Law, 4. p, 59. <https://doi.org/10.4000/rdctss.1326>. Normative acts: International treaties UN General Assembly, Universal Declaration of Human Rights (A/RES/217A(III), 10 December 1948). <https://www.un.org/ar/about-us/universal-declaration-of-human-rights>; UN General Assembly, International Covenant on Civil and Political Rights (A/RES/2200A(XXI), 16 December 1966) entered into force 23 March 1976. <https://www.ohchr.org/ar/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights>; International Labour Organization (ILO). Migration for Employment Convention (Revised (No. 97, 1 July 1949)), entered into force 22 January 1952. <https://www.ilo.org/sites/default/files/wcmsp5/groups/public/%40ed_norm/%40normes/documents/normativeinstrument/wcms_c097_ar.pdf>; International Labour Organization. Migrant Workers (Supplementary Provisions) Convention (No. 143, 24 June 1975) entered into force 9 December 1978. <https://www.ilo.org/sites/default/files/wcmsp5/groups/public/%40ed_norm/%40normes/documents/normativeinstrument/wcms_c143_ar.pdf>. UN General Assembly, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (A/RES/45/158, 18 December 1990) entered into force 1 July 2003. <https://www.ohchr.org/ar/instruments-mechanisms/instruments/international-convention-protection-rights-all-migrant-workers>; National acts People’s Democratic Republic of Algeria. Law No. 81-10 (July 11, 1981), on the conditions of employment of foreign workers. Official Gazette 28 (July 24, 1981); People’s Democratic Republic of Algeria. Law No. 08-11 (June 25, 2008), concerning the conditions of entry, residence, and movement of foreigners in Algeria. Official Gazette 36 (July 2, 2008). Court decisions European Court of Human Rights. (2017, March 30). Chowdury and Others v. Greece. Application No. 21884/15. Strasbourg: ECHR. <https://hudoc.echr.coe.int/eng#{%22appno%22:[%2221884/15%22]}> (Last access: November 22, 2025); European Court of Human Rights. (2021, October 07). Zoletic and Others v. Azerbaijan, Application No. 20116/12. Strasbourg: ECHR. <https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-212040%22]}> (Last access: November 21, 2025). Database: International Labour Organization. (2021). ILO global estimates on international migrant workers: Results and methodology (3rd ed.). <https://www.ilo.org>. Footnotes [1] It states: “Everyone has the right to leave any country, including his own, and to return to his country”. [2] UN General Assembly, Universal Declaration of Human Rights (A/RES/217A(III), 10 December 1948). <https://www.un.org/ar/about-us/universal-declaration-of-human-rights>. [3] It provides: “Everyone has the freedom to leave any country, including his own”. [4] UN General Assembly, International Covenant on Civil and Political Rights (A/RES/2200A(XXI), 16 December 1966) entered into force 23 March 1976. <https://www.ohchr.org/ar/instruments-mechanisms/instruments/international-covenant-civil-and-political-rights>. [5] Ali Al-Din Ahmed, R. (2018). The legal status of the migrant worker: A study in light of the rules of international treaty law and national legislation. Journal of Legal and Economic Research, 65, p. 21. [6] UN General Assembly, International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families (A/RES/45/158, 18 December 1990) entered into force 1 July 2003. <https://www.ohchr.org/ar/instruments-mechanisms/instruments/international-convention-protection-rights-all-migrant-workers>. [7] Muslim, S., Hadiwinata, K., Khoirunnisa, R., Hadiyantina, S., Ayub, Z. A. (2024). ILO conventions and migrant workers: Construction of protection in national labor law. NURANI: Jurnal Kajian Syari’ah dan Masyarakat, 24(2), p. 303. <https://doi.org/10.19109/nurani.v24i2.22152>. [8] International Labour Organization. (2021). ILO global estimates on international migrant workers: Results and methodology (3rd ed.). <https://www.ilo.org>. [9] Servais, J.-M. (2019). International migration and labour law. Journal of Comparative Labour and Social Security Law, 4. p, 59. <https://doi.org/10.4000/rdctss.1326>. [10] International Labour Organization (ILO). Migration for Employment Convention (Revised (No. 97, 1 July 1949)), entered into force 22 January 1952. <https://www.ilo.org/sites/default/files/wcmsp5/groups/public/%40ed_norm/%40normes/documents/normativeinstrument/wcms_c097_ar.pdf>. [11] Al-Kalash, L. M. H. (2018). International and national freedoms and fundamental rights of migrant workers. Master’s thesis, College of Law, Middle East University, Jordan, p. 57. [12] International Labour Organization. Migrant Workers (Supplementary Provisions) Convention (No. 143, 24 June 1975) entered into force 9 December 1978. <https://www.ilo.org/sites/default/files/wcmsp5/groups/public/%40ed_norm/%40normes/documents/normativeinstrument/wcms_c143_ar.pdf>. [13] Al-Kalash, Op.cit, p. 61. [14] Muslim, S., Hadiwinata, K., Khoirunnisa, R., Hadiyantina, S., Ayub, Z. A., Op. cit, p. 303. [15] Ben Taher, A. (2020). International protection of migrant workers’ rights within the framework of the International Labour Organization and the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families. Journal of Humanities, University of Oum El Bouaghi, 7(2), p. 110. [16] Nafziger, J. A. R., & Bartel, B. C. (1991). The migrant workers convention: Its place in human rights law. International Migration Review, 25, p. 781. <https://doi.org/10.1177/019791839102500406>. [17] Ben Taher, Op.cit, p. 111. [18] People’s Democratic Republic of Algeria. Law No. 81-10 (July 11, 1981), on the conditions of employment of foreign workers. Official Gazette 28 (July 24, 1981). [19] The authorization for employing foreign workers takes several forms: Preliminary approval: This is a permit issued by the Ministry of Labour after consulting the consular authorities of the respective country, following the submission of a request for a foreign worker to enter for employment purposes; Temporary work authorization: Issued by the competent authorities under the Ministry of Labour to prepare the foreign workers’ entry file while awaiting the issuance of a temporary work permit and passport; Temporary work permit: Allows the foreign worker to carry out work not exceeding a period of three (3) months; Work passport: Issued to personnel who are qualified to begin work after obtaining preliminary approval from the Ministry and a special authorization. [20] Costello, C., Freedland, M. (2014). Migrants at work: Immigration and vulnerability in labour law. Oxford University Press, pp. 10-13. [21] According to Article 16 of Law No. 81-10 mentioned above: “A foreign worker subject to this law shall receive the same salary corresponding to the reference number of the position that his Algerian counterpart of the same level could occupy, and, where applicable, an increase in remuneration within the Algerian territory when required”. [22] People’s Democratic Republic of Algeria. Law No. 08-11 (June 25, 2008), concerning the conditions of entry, residence, and movement of foreigners in Algeria. Official Gazette 36 (July 2, 2008). [23] Artemov, V., Simonenko, O., Zhalubak, V., Mykhailyk, O., Borsuk, N. (2025). Legal Mechanisms for Protecting Migrants’ Labour Rights in Host Countries. Revista Jurídica Portucalense, 1(38), p. 391. <https://doi.org/10.34625/issn.2183-2705(38)2025.ic-20>. [24] Muslim, S., Hadiwinata, K., Khoirunnisa, R., Hadiyantina, S., Ayub, Z. A., Op.cit, p. 305. [25] Servais, J.-M., Op.cit, pp. 60-62. [26] Gleeson, S. (2010). Labor Rights for All? The Role of Undocumented Immigrant Status for Worker Claims Making. Law & Social Inquiry, 35(3), pp. 33–36. <https://doi:10.1111/j.1747-4469.2010.01196>. [27] European Court of Human Rights. (2017, March 30). Chowdury and Others v. Greece. Application No. 21884/15. Strasbourg: ECHR. <https://hudoc.echr.coe.int/eng#{%22appno%22:[%2221884/15%22]}> (Last access: November 22, 2025). [28] European Court of Human Rights. (2021, October 07). Zoletic and Others v. Azerbaijan, Application No. 20116/12. Strasbourg: ECHR. <https://hudoc.echr.coe.int/fre#{%22itemid%22:[%22001-212040%22]}> (Last access: November 21, 2025). [29] Artemov, V., Simonenko, O., Zhalubak, V., Mykhailyk, O., Borsuk, N., Op. cit, p. 399. [30] Ibid., p. 401.
Migrant workers, protection, rights, national legislation, international instruments.
Guarantees for the Protection of Constitutional Justice in Algeria: From the Constitutional Council to the Constitutional Court in a Comparative Perspective
Constitutional justice in many countries faces multiple challenges that affect the effectiveness of constitutional oversight institutions and the extent to which the rule of law and democracy are enshrined. In this context, Algeria, influenced by the Arab Spring revolutions and following the example of some comparable constitutional systems, has sought to develop its system of constitutional justice through successive constitutional reforms, The most recent of these was the 2020 Constitution, which approved the transformation of the Constitutional Council into a Constitutional Court, to strengthen guarantees for the protection of the Constitution and expand the scope of constitutional oversight. Despite the importance of this transformation, it was not without problems that still raise questions about its effectiveness in achieving independent and effective constitutional justice, especially in light of the continuing dominance of the executive branch and the contradictions between the constitutional and regulatory provisions governing the Constitutional Court’s work. Based on this, this study aims to analyse the most prominent challenges facing constitutional justice in Algeria under the new constitution, using comparative constitutional systems that have been directly or indirectly affected by the Arab Spring, to highlight similarities and differences, and assess the adequacy of the guarantees adopted. The study also seeks to present a set of practical recommendations aimed at capitalising on this constitutional gain by avoiding the criticisms previously levelled at the Constitutional Council and closing the legal loopholes that may hinder the achievement of constitutional justice in line with the requirements of the rule of law. Keywords: Constitutional review, Constitutional Council, Constitutional Court, referral, executive branch. Introduction Under the hierarchy of legal rules, the constitution is considered the pinnacle of the state’s legal structure, as all public authorities, whether legislative, executive, or judicial, are subject to its provisions. Based on this, the importance of the bodies responsible for achieving constitutional justice is highlighted, as they are the fundamental guarantor of the supremacy of the constitutional document and are entrusted with regulating the work of constitutional institutions, establishing controls to prevent their abuse, maintaining the balance between powers, and protecting the fundamental rights and freedoms of individuals.[1] This pivotal role has led to constitutional justice being given a central place in various contemporary constitutional systems. However, the models for its organisation and mechanisms for its exercise differ from one country to another. While some comparative constitutional experiences have tended to assign the task of reviewing the constitutionality of laws to the courts of general jurisdiction, through a mechanism of pleading unconstitutionality and making the Supreme Court or Constitutional Court the final authority in determining the constitutionality of laws,[2] other experiences have adopted the model of the Constitutional Council, as was the case in Algeria and several countries with French influence. In contrast, many constitutional systems have adopted the model of an independent constitutional court with expanded powers, considering it more appropriate for strengthening the independence of the constitutional judiciary and enshrining the protection of rights and freedoms, an approach enshrined in the 2020 Constitution of the Republic of Algeria.[3] This shift has resulted in the upgrading of the constitutional judiciary in Algeria from a constitutional council to a constitutional court. This development is not limited to formal or terminological aspects, but also extends to the expansion of the constitutional body’s powers, as its role is no longer confined to reviewing the constitutionality of laws, but also includes constitutional control and advisory functions, similar to practices in some comparative constitutional systems. However, despite their positive implications, the new provisions governing the Constitutional Court are not without certain shortcomings, which raise questions about its actual ability to achieve constitutional justice in Algeria. On this basis, this study raises several fundamental questions, most notably whether the legal provisions established to regulate the Constitutional Court under the 2020 amendment constitute guarantees for the protection of constitutional justice, and the extent to which the constitutional founder has responded to the criticisms levelled at the Constitutional Council system in the 2016 Constitution, in light of some comparative constitutional experiences. This study is critical because it deals with a pivotal constitutional institution to which the constitutional founder devoted an entire chapter in Title IV, entitled ‘Oversight Institutions’, dedicated to defining the Constitutional Court, explaining its structure, working mechanisms and powers, which requires providing adequate guarantees for its independence and enabling it to fulfil its role in protecting constitutional justice and consolidating the rule of law. In this context, this research paper seeks to identify the most critical challenges facing the Constitutional Court in Algeria under the current constitution and to analyse their implications for the effectiveness of the constitutional justice system, drawing on relevant comparative experiences. Methodology This study is based primarily on a descriptive and analytical approach, describing and analysing the constitutional and legal framework of the constitutional justice system in Algeria through two main stages: the Constitutional Council stage and the Constitutional Court stage, with a description of the powers of each, their composition, their working mechanisms, and the extent to which this contributes to the consolidation and protection of constitutional justice. The study also employs a historical approach by tracing the emergence and development of the constitutional justice system in Algeria and examining the various constitutional stages it has gone through, from the establishment of the Constitutional Council in previous constitutions to the creation of the Constitutional Court in the 2020 Constitution, The aim is to understand the political and constitutional background that led to this transformation and to explain its justifications and implications. The study also makes partial and supporting use of the comparative approach, referring to some comparative constitutional experiences in several countries with similar political environments, to highlight similarities and differences and to clarify the extent to which Algerian constitutional legislators were influenced by or benefited from these experiences, without seeking to make a comprehensive comparison between constitutional systems. Finally, the study relies on a deductive approach in analysing jurisprudential opinions and jurisprudence related to constitutional justice, to draw general conclusions and assess the effectiveness of the guarantees adopted to protect constitutional justice in Algeria. 1. Challenges to Constitutional Justice Linked to Executive Branch Dominance The achievement of effective constitutional justice remains closely linked to respect for the principle of separation of powers,[4] which is often challenged by the growing pre-eminence of the executive branch over the legislative and judicial branches.[5] In Algeria, the 2020 Constitution reflects a desire to move towards greater judicial oversight, in a context marked by the Hirak citizens’ protests and the search for more transparent governance. The Constitutional Court, enshrined in Article 185 and presented as an independent institution under the control bodies, is part of this dynamic. However, a key question remains: is this proclaimed independence truly and effectively reflected in practice? 1.1 Organic autonomy of the Constitutional Control Authority During the 2016 constitutional revision, the Constitution’s drafters established a hybrid composition for the Constitutional Council, combining appointment and election. This body comprised twelve members: four appointed by the President of the Republic (including the President and Vice-President of the Council), two elected from among the members of the Supreme Court, two from among the members of the Council of State, two from among the members of the Council of the Nation, and two from among the members of the National People’s Assembly.[6] However, as the members of the Supreme Court and the Council of State were themselves magistrates appointed by the President of the Republic, this meant that eight members were directly or indirectly appointed by the President, compared with only four elected members. Furthermore, there was no guarantee that the elected members had proven expertise in constitutional law, raising questions about the technical competence and specialisation required to perform such sensitive functions. Conversely, although the 2020 Constitution maintained the number of members of the Constitutional Court at twelve,[7] it introduced a new composition based on a combination of appointment and election. Four members are appointed by the President of the Republic, including the President of the Court, for a single six-year term. One member is elected from among the judges of the Supreme Court and another from among the members of the Council of State, who are initially magistrates appointed by the President.[8] The remaining six members, representing half of the Court’s composition, are elected by universal suffrage from among professors of constitutional law. Thus, the number of members directly or indirectly appointed by the President has been reduced from eight to six, while six other elected members specialise in constitutional law. This development constitutes a significant step forward for the constituent assembly, favouring the consolidation of constitutional justice. However, it is not sufficient to exclude all influence from the executive branch, raising the question of the Court’s organic independence, especially since its decisions are taken by a majority of the members present and, in the event of a tie, the President ـ appointed by the Head of State ـ has the casting vote,[9] except in matters of organic laws. To enshrine the independence of this Court, as provided for in Article 185 of the 2020 constitutional revision, Article 187 emphasises that its members must not belong to any political party. However, the legislator has not specified the nature of this affiliation or its terms and conditions. It would therefore be more appropriate to apply, by analogy, the provisions relating to members of the Independent National Electoral Authority,[10] which require them to have had no political affiliation for a minimum period of five years.[11] It should also be noted that the position of vice-president, established during the 2016 constitutional revision, has been abolished, as it has not been filled during the entire period of activity of the Constitutional Council.[12] Similarly, the participation of representatives of the National People’s Assembly and the Council of the Nation (two members from each chamber) has been abandoned to preserve the Court’s independence from political influence and to avoid any situation in which it would find itself both judge and party.[13] Among the elements considered favourable to constitutional justice and indicative of a political will to endow the Constitutional Court with genuine independence is the election of six of its members from among professors of constitutional law.[14] These professors must be highly qualified, a requirement that also applies to members appointed by the President of the Republic, and must have training in constitutional law ـ the nature and duration of which are not specified ـ as well as at least 20 years of legal experience, compared to 15 years previously.[15] Nevertheless, it appears that this training requirement mainly concerns the four members appointed by the President, as professors of constitutional law are not subject to it. Presidential Decree No. 21-304[16] requires the latter to have been professors specialising in constitutional law for at least five years, to hold the rank of full professor, and to have made a significant scientific contribution in this field. This situation highlights an inequality in the application of the conditions of competence between elected professors and appointed members, with a distinction being made between simple legal training and teaching and research activities, especially since the presence of ambiguous and sometimes contradictory constitutional provisions makes the interpretation of the constitutional text particularly complex. Finally, although these professors enjoy independence in principle due to the way they are appointed ـthey are elected by their peers within public law facultiesـ the fact that the decree setting the conditions for their election is issued by the executive branch, represented by the President of the Republic, raises questions about the effectiveness of this independence.[17] 1.2 Proof of Impeachment and Vacancy in the Office of the Presidium of the Republic Article 102 of the 2016 constitutional revision, relating to the role of the Constitutional Council in determining the incapacity and vacancy of the Presidency of the Republic, has been strongly criticised, particularly during the crisis that Algeria experienced during the illness of former President Abdelaziz Bouteflika. This criticism intensified at the end of his fourth term, when certain parties attempted to exploit the situation to allow him to run for a fifth term despite his obvious incapacity. Without the intervention of the popular movement, the former president would probably have continued to exercise his functions for a new term, exposing the country to a deep and dangerous political crisis.[18] Admittedly, this article stipulates that the Constitutional Council must meet when the President is unable to perform his duties due to serious and lasting illness, verify this incapacity by all appropriate means, and unanimously propose to Parliament that it be recognised. Parliament, meeting in joint session, must then declare the incapacity by a two-thirds majority and instruct the President of the Council of the Nation to act as interim president for a period of 45 days. However, despite the president’s state of health, his prolonged absence from public life, and the exploitation of his position by certain political actors, the Constitutional Council has been unable to meet. The authorities remained inflexible, despite insistent calls from the popular movement, the opposition, the media, and several political groups. In the current Constitution, the content of the article has been retained,[19] but certain editorial and procedural changes have been introduced. Thus, the phrase ‘the meeting is mandatory’ has been replaced by the expression ‘the Constitutional Court shall meet automatically and without delay’, while the required voting percentage has been changed as follows: ‘on the proposal of the Court, adopted by a three-quarters majority of its members, Parliament must declare the impediment’. However, these new provisions do not appear to substantially alter the situation, as the Court can only meet when convened by its president, who is himself appointed, de facto, by the President of the Republic. Out of loyalty, or at least reserve, the latter may be reluctant to initiate a meeting to examine such a question. It would therefore have been appropriate to remove this obstacle by granting the bodies responsible for notification ـ in particular the members of the opposition within the National People’s Assembly ـthe right to refer the matter to the Court by means of a letter containing a decision or finding relating to the President’s state of health or the occurrence of an impediment preventing him from exercising his functions. Furthermore, the wording of the provision could be improved to provide that the Court shall meet either automatically by virtue of the law or upon notification by the competent bodies. Such wording would cover all situations that may require the Court’s intervention in this area. 1.3 Pre-eminence of the President’s power in matters of compulsory referral There is no doubt that the Algerian Constitutional Council, established by the 2016 constitutional reform, was largely modelled on the French system. Like the French Constitutional Council, it was granted broad powers and a wide range of competences.[20] However, this expansion of powers was accompanied by a strengthening of the role of referral by the President of the Republic, to the detriment of other authorised bodies. Indeed, the Constitutional Court only exercises its powers following a mandatory referral by the President of the Republic, both in the context of compliance review and mandatory review. The latter remains the constitutionally competent body to refer matters to the Court concerning organic laws[21] and the conformity of the internal regulations of the two chambers of Parliament.[22] Furthermore, the 2020 Constitution requires the President of the Republic to submit to the Constitutional Court, at the end of a state of emergency, the ordinances issued during parliamentary recesses or in the event of a vacancy in the National People’s Assembly,[23] as well as those adopted during the state of emergency,[24] it being understood that the extension of the state of emergency can only take place with the approval of a majority of the members of both houses of Parliament meeting together.[25] Regarding other authorities empowered to refer cases to the Court, discretionary referral rights have been granted to the President of the National People’s Assembly, the President of the Council of the Nation, the Prime Minister or the Head of Government, as applicable. It is also granted to forty members of the Chamber of Deputies or twenty-five members of the Council of the Nation[26] instead of fifty members of the Chamber of Deputies and thirty members of the Council of the Nation in the 2016 constitutional revision[27] for disputes that may arise between constitutional authorities or for the interpretation of the provisions of the Constitution, when the Court is called upon to give an opinion on them. It should be noted that the President of the Republic also has the power to refer matters to the Court in these areas. There is no doubt that the openness of the drafters of the Algerian Constitution to the rights of the parliamentary opposition since the 2016 constitutional revision, reinforced by the 2020 constitution, which recognises the right of parliamentarians ـ in particular those in the oppositionـ to refer matters to the Constitutional Court,[28] constitutes a significant step towards consolidating the principles of a genuine democracy based on the recognition of the rights of political minorities.[29] This development is also likely to improve relations between the majority and the opposition. However, in practice, in the three years following the creation of the Constitutional Court (2021–2023), the power of referral exercised by the President of the Republic has largely prevailed over others in terms of monitoring and enforcing the Constitution, accounting for more than 70% of referrals, compared to 27% for those from parliamentarians.[30] In any event, whether mandatory or optional, referral remains a prerequisite for the Court to intervene, as it does not exercise its powers automatically by self-referral, unlike the former Constitutional Council, which is a point often criticised by legal scholars. 1.4 Establishment and amendment of the regulation governing the functioning of the Constitutional Court One key question about the independence of the constitutional review body is how its rules of procedure are made and who’s in charge of doing that. On this point, the last paragraph of Article 185 of the 2020 Constitution gives the Constitutional Court the power to set its own rules of procedure. However, no quorum has been provided for the meeting of the Court responsible for drafting them, no specific voting rules have been defined, and their adoption is not subject to any particular conditions of form or substance. The Court thus enjoys almost absolute freedom in this regard. This legal loophole allowed the former Constitutional Council to draw up its rules of procedure in order to comply with the new constitutional revision,[31] even before its membership reached the required number.[32] It adopted the rules when it had only nine members, even though the new rules of procedure require at least ten members to be present for a meeting to be valid. Regarding the power to amend, Article 99 of the Regulation governing the functioning of the Constitutional Court[33] stipulates that amendments to the provisions relating to the functioning of the Court may be proposed either by its President or at the request of a majority of its members. However, the fact that the President of the Court is appointed by the President of the Republic and not elected by his peers may suggest a pre-eminence of the executive branch, which could influence the Court and prevent it to propose amendments to its rules in a manner favourable to its own interests. On the other hand, the power granted to the majority of the Court’s members to also propose amendments constitutes an element of institutional balance, even if the lack of precision regarding the nature of this majority may also reflect a desire for procedural flexibility. In any case, no amendments have been made to the rules of procedure of the Constitutional Council to date.[34] 2. Other Limitations and Obstacles Hindering the Development of Genuine Constitutional Justice Constitutions, as the supreme legal norms of the state, are much more complex to draft than ordinary legislative texts, which gives the body responsible for drafting them a special responsibility. Consequently, the method of constitutional drafting must be based on fundamental rules such as clarity, precision, and consistency, to avoid any form of contradiction, conflict of interpretation, or unnecessary repetition. However, these requirements have not always been fully respected by the Constituent Assembly, which has given rise to extensive doctrinal and jurisprudential debates on many constitutional provisions. 2.1 Dualism in the Constitutional Court regulation Although all previous Algerian constitutions affirmed the Constitutional Council’s right to establish its own internal regulation, the 2020 constitution conferred on the Constitutional Court, in addition to the power to establish its own regulation determining the rules governing its functioning[35] - a power not granted to any other constitutional branch[36] - the power to establish its own internal regulation.[37] So what is the difference between the internal regulation of the Constitutional Court and the regulation that determines the rules governing its functioning? Clearly, the issue raised by the 2020 constitutional reform lies in the dual interpretation of the rules: one concerning the rules of procedure of the Constitutional Court and the other concerning its rules that set its rules. Therefore, while it is legally logical for the Constitution to confer on the Court the right to establish its own rules of procedure. So is it legally logical to confer on it the power to establish legal rules? That is, to replace Parliament in defining all matters within its jurisdiction towards other constitutional authorities and institutions? And to unilaterally establish legal rules that necessarily affect other authorities and institutions? This undoubtedly constitutes a clear contradiction with the principle of the division of powers between constitutional authorities and institutions. The Constitutional Council itself has often emphasised this point in its opinions and decisions. For example, in its opinion issued at the end of 2018 on the constitutionality of the organic law establishing the Algerian Academy of the Amazigh Language, it stated that ‘while the Academy may specify, in its internal regulations, other procedures necessary for its functioning, it must, when drafting this text, refrain from including matters requiring the intervention of other institutions and falling within the scope of the organic law, in accordance with the constitutional principle of the division of powers’.[38] Thus, it appears that the committee responsible for drafting the Constitution, perhaps inadvertently, inserted the issue of the Court’s internal regulations, while forgetting that it had retained, as in previous constitutions, the provision relating to its functioning regulation. Legal methodology does not allow the combination of the two, as they are two similar internal regulations. If the regulation governing the rules of the court is considered to be a law, this is another error committed by the committee. Legislation is the domain of Parliament, in the form of ordinary or organic law, and it is the latter that the committee should have adopted, stipulating a reference from the Constitution in Article 185 so that an organic law determines the rules of procedure of the Constitutional Court, or that this organic law is merged with the organic law stipulated in Article 196 relating to procedures and methods of notification and referral, given the inadequacy of the latter to form a single organic law bringing together all these provisions.[39] 2.2 Legal classification of the regulation governing the functioning of the Constitutional Court In light of the provisions of the Court’s internal regulation and regulations governing its functioning, it appears that the latter is nothing more than an internal regulation whose rules and provisions apply not only to its members, but also to the Court itself in the exercise of its constitutional powers.[40] Whether in matters of reviewing the constitutionality of laws, ruling on appeals, proclaiming the final results of presidential and legislative elections and referendums, or in certain specific cases, this system incorporates most of the provisions of Organic law No. 22-19,[41] as well as the Court’s powers in electoral and referendum matters set out in Ordinance No. 21-01 relating to the Organic Law on the Electoral System,[42] in addition to certain provisions of its own internal regulation. However, this regulation has been criticised because, instead of interpreting or detailing the constitutional text in the event of a contradiction with another text, it has limited itself to summarising its provisions. This can be explained by the fear of making a mistake or coming into conflict with the constitutional text, especially since the latter contains certain contradictions, particularly concerning the effect of the review of ordinances: Article 198 of the constitutional reform subjects them to a posteriori review, while Article 142 subjects them to prior review. Thus, the wording of Article 4 of the system defining the rules of operation of this Court remains general and merely summarises, in a single article, all the legal texts subject to constitutional review. In addition, this regulation has several shortcomings, such as the Constitutional Court’s non-compliance with the methodology followed in Organic law No. 22-19 during its drafting, which led to several errors in its provisions. These include the lack of distinction between constitutional review and compliance review, which constitutes a violation of the Constitution itself, as well as the lack of distinction between the Court’s sessions relating to compliance review, constitutional review, dispute resolution, and interpretation of the Constitution, and those relating to exceptions of unconstitutionality, which require publicity and the guarantees of judicial procedure. 2.3 Nature of the control exercised over the legislative ordinances of the President of the Republic The constitutionality review of ordinances is governed by Articles 98, 142, and 198 of the 2020 Constitution. However, these articles contain numerous contradictions, particularly with regard to the nature of the review to which these ordinances are subject. Article 198 of the Constitution, which forms the legal basis for the effect of Constitutional Court rulings on the constitutionality of laws, states that the review of ordinances is retrospective, as indicated in the following sentence: ‘If the Constitutional Court declares an ordinance or regulation unconstitutional, that text shall cease to have effect from the date of the Constitutional Court’s ruling’, Article 142 of the Constitution refers to the right of the President of the Republic to issue decrees in urgent cases when the National People’s Assembly is not in session or during parliamentary recesses, provided that he informs the Constitutional Court. Although it mentions the review to which these decrees are subject by the Court, it does not explicitly specify the nature of this review. However, this is likely to be a prior review, given that this article stipulates that such a review is carried out by mandatory referral to the President of the Republic and that the Constitutional Court must render its decision within a maximum of 10 days. This confirms that it is indeed a prior review. Article 98 of the Constitution establishes a posteriori constitutional review when the President of the Republic submits his ordinances to the Constitutional Court for its opinion.[43] It is clear from this provision that ordinances issued during a state of emergency are subject to such review, as the constitutional text is explicit on this point. Indeed, the article specifies that “the President of the Republic, after the lifting of the state of emergency, shall submit to the Constitutional Court the ordinances issued during it for its opinion”. Consequently, ordinances adopted during a state of emergency are subject to a posteriori constitutional review, in the same manner as those adopted under normal circumstances. This practice has moreover been confirmed when, on July 26, 2022, the President of the Republic referred the ordinance enacting the supplementary budget law for 2022 to the Constitutional Court. In its decision rendered on July 28, the Court declared these provisions constitutional.[44] Therefore, the persistent contradiction regarding the nature of the control applicable to legislative orders necessitates clarifying the terminology used, harmonizing the organization of the texts, and ensuring greater consistency between constitutional provisions, in order to facilitate their understanding for both members of the Court and the citizen. 2.4 The binding nature of decisions, opinions, and declarations issued by the Constitution Court The legal redaction of the Constitution is vitally important, insofar as the terms used constitute the body of the legal text, while their linguistic meaning represents its soul, the source of its normative force and effectiveness.[45] Therefore, rigorous constitutional redaction requires solid linguistic mastery, in-depth legal specialisation, and serious practice. However, the text of the 2020 Constitution has several shortcomings. The wording adopted in the Algerian constitutional revisions often remains vague and imprecise, contrary to the principle of legal certainty expressly enshrined in the current Constitution in its preamble and reaffirmed in Article 34. This imprecision also compromises the stability of institutions and society and reveals a failure to consider the lessons learned from previous constitutional experiences. The 1989[46] and 1996[47] Constitutions, as well as the 2016 constitutional revision, clearly distinguished between opinions and decisions, based on the difference between prior review exercised through opinions and ex post review exercised through decisions, while specifying, in Article 191 of the 2016 Constitution, the binding and definitive nature of both opinions and decisions. In these circumstances, on what basis did the drafting committee for the 2020 Constitution introduce a distinction between opinions, decisions, and declarations, even though decisions remain the norm in most Constitutional Court rulings, with no clear distinction between prior review and ex post review? If the Court rules on the compatibility of laws and regulations with treaties, on the conformity of the internal regulations of the two chambers of Parliament[48] with the Constitution, while giving an opinion on the interpretation of one or more constitutional provisions[49] and proclaiming the final results of presidential, legislative and referendum elections,[50] does this mean that the decision is binding, that the opinion is merely an opinion, and that the declaration has no binding effect? The last paragraph of Article 198 of the Constitution expressly stipulates that ‘the decisions of the Constitutional Court are final and binding on all public, administrative and judicial authorities’, without, however, mentioning its opinions and declarations. This omission must be corrected during a future constitutional revision. How can an article that constitutes the constitutional basis for the enforcement of the Court’s judgments be limited to enshrining the binding nature of decisions alone, without mentioning the scope of the opinions and declarations of the Constitutional Court?[51] It would indeed be illogical for the final and binding nature to be restricted exclusively to decisions, without also including opinions and declarations. Consequently, this article must be amended to specify that the decisions, opinions, and declarations of the Constitutional Court are final and binding on all public authorities, especially since they emanate from a court and not from a mere advisory body. Furthermore, it would be desirable to standardise the acts of the Constitutional Court in the form of decisions and, consequently, to revise all relevant provisions so that the Court only issues decisions. 3. Guarantees for the Protection of Constitutional Justice in Light of The Transition from Constitutional Councils to Constitutional Courts in Certain Comparative Constitutional Systems The political transformations in the Middle East and North Africa since 2011 have marked a decisive turning point in the rebuilding of constitutional systems.[52] The wave of widespread protests that accompanied what has come to be known as the ‘Arab Spring’[53] prompted several countries, such as Tunisia, Morocco, and Algeria, as mentioned above, to adopt far-reaching constitutional reforms aimed primarily at strengthening the rule of law. In this context, there has been a trend towards restructuring constitutional oversight institutions by moving from a constitutional council model to a constitutional court model, which is considered a more advanced mechanism for ensuring the supremacy of the constitution. However, this shift raises a fundamental question: Does this transition reflect a genuine shift towards strengthening constitutional justice, or is it merely an institutional adjustment that has not been accompanied by real progress in guaranteeing independence and effectiveness? After discussing the Algerian experience, the Moroccan and Tunisian experiences emerge as important models for studying the limits and potential of this transition. 3.1 Morocco In the wake of the Arab Spring, Morocco embarked on a comprehensive constitutional reform aimed at strengthening human rights, establishing the principle of separation of powers, and consolidating the rule of law. King Mohammed VI’s 9 March 2011 speech, in which he announced the constitutional amendment, paved the way for a new constitutional system that reconciles tradition and modernity. The constitution adopted on 29 July 2011 represents a genuine transformation of the legal and political system, announcing a comprehensive set of reforms. About the Moroccan model of constitutional justice, Morocco has not deviated from the long evolutionary process experienced by most countries that were colonised or placed under a French protectorate, through the gradual establishment of the institution of constitutional justice, which began with the 1908 draft constitution. 3.1.1 Before the Arab Spring revolution of 2011: Limited oversight and weak safeguards The first draft of the constitution in 1908 referred to the need for oversight of laws exercised by the Council of Elders,[54] which was transferred to the 1962 constitution[55] and initially took the form of a provisional constitutional committee before becoming the Constitutional Chamber of the Supreme Council, established in 1957, which was concerned only with “constitutional oversight of regulatory texts and the internal rules of the chambers, and in particular with examining electoral disputes and referendum processes. However, due to its weak position[56] and the legal mechanisms available to the Constitutional Chamber, and consequently the absence of decisive and influential decisions, this institution appeared cautious and peaceful.[57] Such difficulties and problems accompanying the work of the ‘chamber’, such as its lack of jurisdiction at this stage to monitor ordinary laws, will prompt the Constitution 1992 to abolish it and replace it with the ‘Constitutional Council’, which is similar in jurisdiction to the French Constitutional Council.[58] Thus, after being confirmed in the 1996 Constitution, the Moroccan Constitutional Council,[59] occupies ‘fourth place in the hierarchy of constitutional institutions’, as an ‘independent body’ from the ordinary judiciary, enjoying, in addition to the previous powers of the Chamber, for the first time, ‘the power of constitutional oversight of ordinary laws’, which is considered a key power of any constitutional judiciary.[60] This independence is reflected in the Constitution itself, which devotes a separate section to constitutional justice, distinct from the section devoted to ordinary justice. On the one hand, this independence is also reflected at the administrative and financial level of the Council, where we find that “the administrative interests and powers of the Council are determined by a decision of the President of the Constitutional Council[61] and that ‘the President of the Council is the authorising officer and may appoint the Secretary-General as authorising officer in accordance with the procedures and conditions laid down in the laws and regulations in force in this area’.[62] The independence of the Constitutional Council has been further enhanced by the fact that the authority of its decisions has become ‘clearly and explicitly expressed’, so that, pursuant to Article 81 of the Constitution, they have taken on the character of being ‘definitive and final’. However, this new institution did not live up to the expectations set for it at the time of its establishment, as the process of ‘constitutional oversight’ during this phase was characterised by a ‘slow and cautious’ and “conservative” approach,[63] with the Constitutional Council hiding behind the idea of ‘lack of jurisdiction’ in a large number of its decisions,[64] which not only reflects the weakness of the Constitutional Council’s status and the legal mechanisms available to it, but also restricts its oversight function, which is supposed to complement the legal rules set out in the constitutional document. Here, we primarily refer to the role and function of the constitutional judge in legal jurisprudence and creativity. On another level, referring to statistics up to 2010, i.e., approximately 16 years of the Constitutional Council’s existence as an independent institution, we find that “of the 780 decisions taken by the Constitutional Council, 622 relate to electoral disputes, 2 referendums, 22 regulatory laws, 12 internal laws, and 10 ordinary laws”.[65] If constitutional oversight of “ordinary laws” is “the cornerstone of any constitutional judiciary”,[66] then the fact that only 10 of the 780 decisions relate to ordinary laws gives an idea of the ‘weakness of constitutional review of ordinary laws’ and is therefore a clear indication of the weakness and limitations of the Constitutional Council’s working mechanisms and mechanisms.[67] In terms of the nature of the decisions taken by the Constitutional Council, we note a complete absence of issues relating to the protection of fundamental individual rights and freedoms, as well as of questions relating to constitutional law that allow for the understanding, explanation, and completion of the constitution’s meaning. About the right of individuals to appeal, we note that all Moroccan constitutions from 1962 to 1996 agreed that individuals cannot litigate before the Constitutional Chamber or the Constitutional Council, nor before the courts, and that no judicial body was authorised to rule on the constitutionality of a law when considering a dispute brought before it. Thus, it was not possible to apply the principle of ex post facto judicial review of the constitutionality of laws. 3.1.2 After the Arab Spring revolution of 2011: Institutional strengthening in facing structural challenges Under the new Constitution of 2011, Chapter 129 explicitly establishes a Constitutional Court to replace the Constitutional Council, with a new composition and additional powers to ensure the independence of constitutional justice. This court is composed of 12 members who are subject to integrity requirements.[68] Six of them are appointed by the King, and the remaining six are elected by the House of Representatives and the House of Councillors for a non-renewable term of nine years. The president of the court is appointed by the King, which enshrines the dominance of the executive branch in Morocco, as is the case in Algeria. In terms of jurisdiction, this court exercises the same powers as the former Constitutional Council, including the verification of the validity of the election of members of parliament, referendums, and the prior review of laws, among other things. However, what is new for this court is that it has been granted the right to review laws a posteriori by challenging their constitutionality.[69] Nevertheless, despite the reforms brought about by the 2011 Constitution and the establishment of the Constitutional Court, the constitutional justice system in Morocco faces many challenges regarding the effectiveness of constitutional safeguards and individuals’ access to them. Among the most prominent of these criticisms are those made by international and local organisations regarding the draft law on challenging the constitutionality of laws in Morocco, which was considered a missed opportunity to facilitate individuals’ access to the Constitutional Court, as the mechanism for challenging constitutionality remains linked to raising it within the context of an existing legal dispute, This means that it is not directly open to individuals, unlike some comparative experiences that grant direct access, which raises questions about the court’s ability to protect constitutional rights and freedoms effectively. Thus, the Moroccan experience reflects an important institutional transition, but one that has not yet reached the level of complete structural transformation. 3.2 Tunisia Constitutional institutions in Tunisia have undergone remarkable developments, leading to changes in the institutional system to keep pace with the wave of democratic transition the country experienced after the Jasmine Revolution in 2011. This has led to a series of changes in relation to the protection of constitutional justice, which can be summarised as follows: 3.2.1 Before the Arab Spring revolution of 2011: Formal oversight under the presidential system Scholars can summarise the Tunisian experience in the field of constitutional justice in three words: silence, rejection, and failure. The founding legislator remained silent on the subject of constitutional oversight, even though the idea was not new,[70] as the 1861 Constitution established the so-called Grand Council, which was responsible for overseeing laws under Article 60. As for rejection, it is exemplified by the failure to accept an initiative submitted by a group of deputies to the Chamber of Deputies on 3 February 1971 to establish a constitutional council. The failure lies in the fact that, after the Constitutional Council was established,[71] it remained merely an advisory body to the President of the Republic and did not attain the level required of it. The pre-2011 constitution in Tunisia included an institution called ‘Constitutional Council’, which was established in 1990 as a symbolic step among the reforms introduced by the one-party system led by the late Zine El Abidine Ben Ali, who had recently come to power. This council was responsible for reviewing the constitutionality of draft laws submitted to it. Still, it was closely linked to the powers of the president, who was the centre of the political system at that time. In addition to reviewing draft laws, the President of the Republic may refer any matters he deems relevant to the organisation and functioning of institutions to the Constitutional Council. Among the powers vested in the Constitutional Council is the authority to rule on appeals relating to the election of members of the Chamber of Deputies and the Chamber of Councillors. It also monitors the validity of referendums and announces their results. However, there were no references to powers related to electoral disputes arising from presidential elections. 3.2.2 After the Arab Spring revolution of 2011: Constitutional ambition collides with political reality This is referred to as the post-revolution phase, during which a constitutional court[72] was established under the 2014 constitution. As the guarantor of the constitution’s application, Tunisian President Kais Saied believed that the constitution required the court to be established within a year of the 2014 legislative elections. This placed the governing institutions in an impossible situation. However, in addition to this interpretation, President Saied did not hide his reservations about the parliament’s move and its haste in establishing the Constitutional Court at that particular time after years of stagnation, which he described as an ‘innocent move’. After he dissolved parliament in July 2021, repealed the 2014 constitution, and established a new constitution with a strengthened presidential system in 2022, the establishment of the Constitutional Court was once again delayed until 2025.[73] Under the 2022 Constitution, the Constitutional Court consists of nine members appointed by order of the President of the Republic,[74] which enshrines the complete dominance of the executive branch over this court, unlike in Morocco and Algeria, where this control is partial. In addition, these members belong to either ordinary or administrative courts, which makes this court different from those in Algeria and Morocco, where members of the Constitutional Court are required to be both legal academics and practising judges in the field of public and constitutional law, specifically, so that the composition is comprehensive in terms of experience and expertise.[75] In terms of its powers, it has the power to review draft laws and the constitutionality of treaties, which it can only exercise upon referral by the President of the Republic, thirty members of the People’s Assembly, or half of the members of the Council of Regions and Provinces. This is criticised because it leaves this review subject to the will of the aforementioned bodies. Furthermore, gathering thirty deputies, or half of the members of the Council of Regions and Provinces, within seven days and preparing a petition challenging the constitutionality of a bill is virtually impossible, thereby preventing the legislative authorities from exercising their right to challenge the constitutionality of a bill.[76] As for ex post facto oversight, it is the most important gain for constitutional justice in Tunisia under the 2014 Constitution, which was confirmed by the 2022 Constitution, and remains linked, as in Algeria and Morocco, to the existence of a dispute before the courts. Thus, the Tunisian experience appears to be an example of the gap between constitutional ambition and institutional implementation. Conclusion The analysis of Algeria’s institutional framework for constitutional justice, as established by the 2020 Constitution, and in light of the comparative study of Tunisia and Morocco, reveals a clear political will to strengthen the rule of law through the transition from a Constitutional Council to a Constitutional Court with expanded powers. However, this development also highlights a problematic duality: on the one hand, a clear ambition to consolidate the independence and effectiveness of constitutional justice; on the other hand, the maintenance of a strong predominance of executive power, combined with numerous imbalances and drafting shortcomings, as well as the hybrid nature of certain texts governing the functioning of the Constitutional Court. Undeniably, this Constitution represents a significant normative advance, insofar as it replaces a predominantly political institution with a judicial court. In theory, the Court now has broader powers than those provided for in the previous Constitution, while the strengthening of legal specialisation ـ notably through the integration of academics specialising in constitutional law ـ contributes to increasing its professionalism and scientific credibility. However, given its relatively recent establishment, the Court faces several obstacles and challenges, including an implicit dependence attributable to the strengthening of the executive branch’s influence, particularly with regard to the appointment of its members. Furthermore, the executive’s control over the mechanisms for determining the incapacity of the President of the Republic and the vacancy of the presidency increases the risk of institutional paralysis in times of political crisis. In addition, the scope of presidential powers in matters of referral limits, in practice, reduces democratic access to constitutional justice and reduces the effectiveness of oversight. Formally, the wording of the Constitution remains somewhat vague, similar to that observed in previous texts, and requires greater clarity and rigour in order to avoid any legal ambiguity. Consequently. As in Algeria, analysis of the Moroccan and Tunisian experiences shows that the transition from a constitutional council to a constitutional court represents a crucial institutional step in the process of enshrining the supremacy of the constitution. However, the effectiveness of this transition remains contingent on the availability of genuine guarantees of independence and effective access for individuals. The establishment of a constitutional court does not necessarily mean the establishment of a comprehensive constitutional justice system, as the reform may turn into mere organisational reengineering if political domination continues or appeal mechanisms become complicated. And in light of the above, the following recommendations can be made: Transition from ‘institutional’ constitutional justice to ‘societal’ constitutional justice, where experience in the countries under comparison reveals the continuing institutional nature of constitutional justice, where access to it remains governed by the will of political actors or the existence of a legal dispute. However, recent trends in constitutional justice have brought it closer to society by expanding the right to appeal, particularly through direct individual appeal mechanisms or by easing the conditions for challenging constitutionality. The broader the scope of access, the stronger the court’s rights function becomes, transforming it from a guardian of the constitutional order into an effective guarantor of rights; Reconsidering the composition of the Constitutional Court in the countries under comparison by eliminating the subordination of the President of the Court to the executive authority by electing members of the Constitutional Court, instead of appointing them by the President of the Republic; Improving the quality of Algerian constitutional drafting by emphasising clarity, precision of terminology, and internal consistency to prevent any ambiguity of interpretation; Eliminate the overlap between the internal rules of procedure and the rules governing the functioning of the Court by unifying the two normative systems within a single, coherent, and clearly hierarchical legal framework; Amending the last paragraph of Article 198 of the Algerian constitution to specify that the decisions, opinions, and statements of the Constitutional Court are final and binding on all authorities. Ideally, all statements by the Constitutional Court should be standardised in the form of decisions; Establishing a notification mechanism for the occurrence of an impediment or vacancy in the office of the Algerian President of the Republic to prevent any political crisis; Moving beyond the traditional concept of independence based solely on constitutional provisions, towards adopting the concept of composite independence, which combines independence of appointment, functional independence, and financial independence. Comparative experience shows that the most serious manifestations of political influence do not occur through texts but through appointment mechanisms. Therefore, it is advisable to adopt a pluralistic appointment model that distributes the power to select among several constitutional institutions, thereby preventing a single political actor from monopolizing the power to form the court. Finally, the real challenge facing contemporary constitutional systems is no longer choosing an oversight institutional model, but rather ensuring its effectiveness. The difference between a constitutional council and a constitutional court may be more a matter of nomenclature than substance if the institution lacks guarantees of independence and openness. Accordingly, the future of constitutional justice in comparative experiences seems to depend on the transition from constitutionalising the institution to constitutionalising the practice, i.e., from establishing bodies to enabling them to perform their role as a countervailing power that guarantees the supremacy of the constitution and limits the encroachment of power. References Scholarly Literature: Abdellaoui, S., Zouagri, T. et al. (2025). The oversight role of the constitutional court in Algeria. Lex localis - Journal of Local Self-Government, Vol. 23 No. 11. Doi:10.52152/sb70y652; Agüero-San-Juan, S., Paredes-Paredes, F. (2025). The Relevance of Facts in Assessing the Constitutionality of Legislation. An Analysis Based on Abstract Review Mechanisms. Ius et Praxis, Vol. 31, no. 1. <https://doi.org/10.4067/s0718-00122025000100003>; Akrour, M. (2022). University Professors as Members of the Constitutional Court, Professor Researcher Journal for Legal Studies, 07(02); Alamri, M. (2025). Constitutional Courts and the Protection of Constitutional Rights: A Comparative Analysis of Institutional Authority in Indonesia and Morocco. International Journal of Constitutional and Administrative Law, Vol. 1, No. 2; Ben Ali, Z. (2021). The creation of the Constitutional Court instead of the Constitutional Council in Algeria. Algerian Journal of Legal and Political Sciences, 58 (04); Bernoussi, N. (2017). The 2011 Constitution and the Constitutional Judge under the direction of international studies. The 2011 Moroccan Constitution: Analyses and Comments: L.G.D.J/ Extenso edition; Boumediene, M. (2023). The Methodology of the 2020 Algerian Constitution in Organizing the Constitutional Court and its Shortcomings. Al-Haqiqa Journal for Social and Human Sciences, 22(02), University of Hadj Lakhdar, Batna, Algeria; Boumediene, M. (2023). The Constitutional and Legal Basis of the Legal Texts Regulating the Algerian Constitutional Court. African Journal of Legal and Political Studies, Ahmed Draia University of Adrar, Algeria, 07(01); Boumediene, M. (2020). Notification as a key formal criterion for distinguishing between conformity review, constitutional review and review of constitutionality exceptions under the 2016 constitutional reform. Revue des sciences juridiques et sociales, Ziane Achour University of Djelfa, vol. 5, No. 2; Brown, N. J., Waller, J. G. (2016). Constitutional courts and political uncertainty: Constitutional ruptures and the rule of judges. International Journal of Constitutional Law, Volume 14, Issue 4; Cardenas Gonzales, J. R. (2025). The Legislative Function of The Constitutional Court in Relation to the Omission of the Constituent. Constitutional Review, Vol. 11, Number 1. <https://doi.org/10.31078/consrev1113>; Epstein, L., Shvetsova, O., and Knight, J. (2024). The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government. Law & Society Review, Vol. 35, Issue 1. <https://doi.org/10.2307/3185388>; Francesco, A. (2015). The Moroccan Constitutional Transition: The Method of Contextualization and Mutual Interaction. Religion & Human Rights 10, no. 1. <https://doi.org/10.1163/18710328-12341282>; Khane, F., Mecheri, D. (2025). The constitutional court of Algeria between necessity and tradition. Russian Law Journal, Vol. 13 No. 01; Kirchoff-Foster, D. (2021). Constitutional Court Landscape Post-Arab Spring: A Survey of Design. Indiana Journal of Constitutional Design: Vol. 8. <https://www.repository.law.indiana.edu/ijcd/vol8/iss1/2> (Last access: 02.02.2025); Lamont, C. K., Pannwitz, H. (2016). Transitional Justice as Elite Justice? Compromise Justice and Transition in Tunisia, Global Policy, Vol. 7, Issue 2. <https://doi.org/10.1111/1758-5899.12291>; Lasledj, N. (2024). From the Constitutional Council to the Constitutional Court in Algeria: A Change in Names or the Establishment of an Effective Constitutional Model? Arab Organization for Constitutional Law, Eighth Session, 2024; Mardassi, M., Saleh, A. N. (2023). The composition of the Constitutional Court between independence and subordination. Numeros Academic Journal, 04(01); Menouni, A. L. (1999). The Experience of the Moroccan Constitutional Council. The Constitutions of Arab Countries, Proceedings of the 1998 Beirut Symposium, Brussels, Bruylant; Ramdani, F. Z. (2020). The Algerian Constitutional Amendment Project for the Year 2020. Kuwait International Law School Journal, 08(04); Tamburini, F. (2021). The Ghost of the Constitutional Review in Tunisia: Authoritarianism, Transition to Democracy and Rule of Law. Journal of Asian and African Studies, Vol. 57, Issue 4. <https://doi.org/10.1177/00219096211037039>; Turner, C. (2015). Transitional constitutionalism and the case of the arab spring. International & Comparative Law Quarterly, Vol. 64, Issue 2. <https://doi.org/10.1017/S0020589315000020>; Vanberg, G. (2015). Constitutional Courts in Comparative Perspective: A Theoretical Assessment. Annual Review of Political Science Volume 18, 2015. <https://doi.org/10.1146/annurev-polisci-040113-161150>; Ziani, K., Drid, K. (2022). The Composition of the Constitutional Court between Independence and Subordination. Al-Bahith Journal for Academic Studies, 07(02), University of Hadj Lakhdar, Batna, Algeria. Legal Acts: Algeria 1989 Constitution, adopted by referendum on 23 February 1989 (Official Gazette of Algeria No. 9 of 1 March 1989); Algeria 1996 Constitution, adopted by referendum on 28 November 1996 (Official Gazette of Algeria No. 76 of 8 December 1996), amended by Algerian law No. 02-03 of 10 April 2002 (Official Gazette of Algeria No. 25 of 14 April 2002), Algerian law No. 08-19 of 15 November 2008 (Official Journal No. 16 of 16 November 2008) and Algerian law No. 16-01 of 6 March 2016 (Official Gazette of Algeria No. 14 of 7 March 2016); Algeria 2020 Constitution, adopted by popular referendum on 1 November 2020 (Official Gazette of Algeria No. 82 of 30 December 2020); Algerian internal regulation of the Constitutional Council (Official Gazette of Algeria No. 75 of 13 November 2022); Algerian internal regulation of the Council of State (Official Gazette of Algeria No. 66 of 27 October 2019); Algerian internal regulation of the Supreme Court (Official Gazette of Algeria No. 34 of 16 June 2014); Algerian law No. 21-01 of 10 March 2021 amending and supplementing the Organic Law on the electoral system (Official Gazette of Algeria No. 17 of 10 March 2021); Algerian organic law No. 19-07 of 14 September 2019 on the Independent National Electoral Authority (Official Gazette of Algeria No. 55 of 15 September 2019); Algerian organic law No. 22-19 of 25 July 2022 establishing the procedures for notification and referral to the Constitutional Court (Official Gazette of Algeria No. 51 of 31 July 2022); Algerian Presidential Decree 21-304 of 4 August 2021, specifying the conditions and procedures for the election of professors of constitutional law as members of the Constitutional Court (Official Gazette No. 60 of 5 August 2021); Algerian presidential decree No. 16-210 of 27 July 2016 on the publication of the nominal composition of the Constitutional Council (Official Gazette of Algeria No. 45, dated 31 July 2016); Algerian regulation governing the functioning of the Constitutional Council (Official Gazette of Algeria No. 42 of 30 June 2019); Algerian regulation governing the functioning of the Constitutional Court (Official Gazette of Algeria No.04 of 22 January 2023); Moroccan Organic Law No. 24-93 on the Constitutional Council, promulgated on 20 February 1994, as amended and supplemented; Morocco 1962 Constitution; Morocco 2011 Constitution; Tunisia 1959 Constitution; Tunisia 1961 Constitution; Tunisia 2014 Constitution; Tunisia 2022 Constitution; Tunisian Organic Law No. 14 of 2014 dated 18 April 2014 on the Provisional Authority for the Review of the Constitutionality of Draft Laws. Constitutional Court decision: Decision No. 535-2003 of the Moroccan constitutional Council, issued on 9 September 2003; Decision No. 628-2006 of the Moroccan constitutional Council, issued on 30 August 2006; Decision No. 629-2007 of the Moroccan constitutional Council, issued on 10 January 2007; Decision No. 826-12 of the Moroccan constitutional Council, issued on 17 January 2012; Opinion No. 04 of the Constitutional Court, issued on 2 August 2018, concerning the review of the constitutionality of the organic law relating to the Algerian Academy of the Amazigh Language (Official Gazette of Algeria No. 54 of 5 September 2018); Decision No. 05 issued on July 28, 2022, concerning the constitutional review of the order containing the supplementary finance law for the year 2022 (Official Gazette of Algeria, No. 53, dated August 4, 2022). Supplementary Materials: Statistics of the Constitutional Court. <https://cour-constitutionnelle.dz/ar/%d8%a7%d9%84% d8%b1%d8%a6%d9%8a%d8%b3%d9%8a%d8%a9> Al-Qizani, T., Suspended since 2014: Why do Tunisia’s rulers fear the Constitutional Court? <https://www.dw.com/ar/%D9%85%D8%B9%D8%B7%D9%84%D8%A9 -%D9%85%D9%86%D8%B0-2014-%D9%84%D9%85%D8%A7%D8%B0%D8%A7-%D9%8A%D8%AE%D8%B4%D9%89-%D8%AD%D9%83%D8%A7%D9%85 -%D8%AA%D9%88%D9%86%D8%B3-%D8%A7%D9%84%D9%85%D8%AD%D9%83%D9%85%D8%A9 -%D8%A7%D9%84%D8%AF%D8%B3%D8%AA%D9%88%D8%B1%D9%8A%D8%A9/a-72487910>. Footnotes [1] Cardenas Gonzales, J. R. (2025). The Legislative Function of The Constitutional Court in Relation to the Omission of the Constituent. Constitutional Review, Vol. 11, Number 1, pp. 63-64. <https://doi.org/10.31078/consrev1113>. [2] Epstein, L., Shvetsova, O., and Knight, J. (2024). The Role of Constitutional Courts in the Establishment and Maintenance of Democratic Systems of Government. Law & Society Review, Vol. 35, Issue 1, p. 118. <https://doi.org/10.2307/3185388>. [3] Khane, F., Mecheri, D. (2025). The constitutional court of Algeria between necessity and tradition. Russian Law Journal, Vol. 13 No. 01, p. 1503. [4] Abdellaoui, S., Zouagri, T. et al. (2025). The oversight role of the constitutional court in Algeria. Lex localis - Journal of Local Self-Government, Vol. 23 No. 11, p. 1710. Doi:10.52152/sb70y652. [5] The current Algerian Constitution pays particular attention to the executive branch, to which it devotes two separate chapters: one relating to the President of the Republic and the other to the Government. This structure is a departure from previous constitutions, in which the three branches of government were grouped together in a single chapter, with each branch receiving specific treatment within that chapter. This formal imbalance between the branches of government is also reflected in substantive terms: the executive branch appears to be largely privileged, particularly with regard to the prerogatives of the President of the Republic. The latter is granted numerous powers affecting the legislative and judicial spheres, including: the power to legislate by decree, the possibility of dissolving the National People’s Assembly and appointing one third of the members of the Council of the Nation, the right to raise objections to laws and request a second reading, and the appointment of the Chief Justice of the Supreme Court and the President of the Council of State. In addition, he serves as President of the High Council of the Judiciary and has other important prerogatives, reflecting a considerable strengthening of the executive branch at the expense of the other branches of government. [6] Article 183 of the 2016 constitutional amendment, published pursuant to the Algerian law No. 16-01 of March 6, 2016 (Official Gazette No. 14 of March 7, 2016). [7] Algeria 2020 Constitution, adopted by popular referendum on 1 November 2020 (Official Gazette of Algeria No. 82 of 30 December 2020), Article 186. [8] The article 92 of Algeria 2020 Constitution above mentioned ,as well as Algerian internal regulation of the Council of State (Official Gazette of Algeria No. 66 of 27 October 2019) and the Algerian internal regulation of the Supreme Court (Official Gazette of Algeria No. 34 of 16 June 2014), determine how these judges are appointed and elected. [9] Algeria 2020 Constitution, Article 197. [10] Mardassi, M., Saleh, A. N. (2023). The composition of the Constitutional Court between independence and subordination. Numeros Academic Journal, 04(01), p. 119. [11] Algerian organic law No. 19-07 of 14 September 2019 on the Independent National Electoral Authority (Official Gazette of Algeria No. 55 of 15 September 2019), Article 19. [12] In the event of the resignation, death, or permanent incapacity of the President of the Constitutional Court, the Court convenes under the chairmanship of its most senior member to fill the vacancy. The President of the Republic is immediately informed, and a replacement is appointed within fifteen days preceding the end of the term. See Articles 6 and 7 of the Algerian internal regulation of the Constitutional Council (Official Gazette of Algeria No. 75 of 13 November 2022). [13] Lasledj, N. (2024). From the Constitutional Council to the Constitutional Court in Algeria: A Change in Names or the Establishment of an Effective Constitutional Model? Arab Organization for Constitutional Law, Eighth Session, 2024, pp. 8-9. [14] Akrour, M. (2022). University Professors as Members of the Constitutional Court, Professor Researcher Journal for Legal Studies, 07(02), p. 1942. [15] Algeria 2020 Constitutional, above mentioned, Article 187 (para. 2). [16] Algerian Presidential Decree 21-304 of 4 August 2021, specifying the conditions and procedures for the election of professors of constitutional law as members of the Constitutional Court (Official Gazette No. 60 of 5 August 2021). [17] Ziani, K., Drid, K. (2022). The Composition of the Constitutional Court between Independence and Subordination. Al-Bahith Journal for Academic Studies, 07(02), University of Hadj Lakhdar, Batna, Algeria, p. 619. [18] Boumediene, M. (2022).The Methodology of the 2020 Algerian Constitution in Organizing the Constitutional Court and its Shortcomings. Al-Haqiqa Journal for Social and Human Sciences, 22(02), University of Hadj Lakhdar, Batna, Algeria, p. 616. [19] Algeria 2020 Constitution, above mentioned, Article 94. [20] Ben Ali, Z. (2021). The creation of the Constitutional Court instead of the Constitutional Council in Algeria. Algerian Journal of Legal and Political Sciences, 58 (04), p. 311. [21] Algeria 2016 Constitutional Amendment, above mentioned, Article 186 (para. 1), Algeria 2020 Constitution, above mentioned, Article 190 (para. 2). [22] Algeria 2016 Constitutional Amendment , above mentioned, Article 186 (para. 3), Algeria 2020 Constitution, above mentioned, Article 190 (para. 6). [23] Algeria 2020 Constitution, above mentioned, Article 142. [24] Ibid., Article 98 (para. 07). [25] Ibid., Article 98. [26] Ibid., Article 193. [27] Algeria 2016 Constitutional Amendment, above mentioned, Article 187 (para. 2). [28] Algeria 2016 Constitutional Amendment, above mentioned, Article 116 (para. 5). [29] The parliamentary opposition has the right to refer matters to the Constitutional Court, but the conditions attached to this right make it difficult to exercise, particularly with regard to obtaining the quorum required to initiate a notification procedure and the time limit, which must be a maximum of 30 days before publication. Furthermore, there are few cases in which parliamentarians can exercise this right. [30] Statistics of the Constitutional Court. <https://cour-constitutionnelle.dz/ar/%d8%a7%d9%84% d8%b1%d8%a6%d9%8a%d8%b3%d9%8a%d8%a9> (Last access: 16.12.2025). [31] The composition of the Constitutional Council was finalized in July 2016 under Algerian presidential decree No. 16-210 of 27 July 2016 on the publication of the nominal composition of the Constitutional Council (Official Gazette of Algeria No. 45, dated 31 July 2016). [32] It should be noted that the Constitutional Council did not rely on the provisions of the first paragraph of Article 214 of Algerian presidential decree No. 16-210 above mentioned, on the publication of the nominal composition of the aforementioned Constitutional Council, which stipulates that “the Constitutional Council continues with its current representation in the exercise of the powers conferred upon it by the Constitution…”. [33] Algerian regulation governing the functioning of the Constitutional Court (Official Gazette of Algeria No.04 of 22 January 2023). [34] Algerian regulation governing the functioning of the Constitutional Council (Official Gazette of Algeria No. 42 of 30 June 2019), Article 102. [35] Algeria 2020 Constitution, above mentioned , Article 185 (para. 3). [36] Even Parliament, representing the will of the people, is required to submit internal regulation of each chamber to the Constitutional Court for a ruling on their constitutionality. Furthermore, any amendment to these regulations, even if it concerns only a single article, must be submitted to the Constitutional Court for verification of its constitutionality. This is a rigorous control process, distinct in both form and substance from constitutional review. For more details, see: Boumedienne , M. (2020). Notification as a key formal criterion for distinguishing between conformity review, constitutional review and review of constitutionality exceptions under the 2016 constitutional reform. Revue des sciences juridiques et sociales, Ziane Achour University of Djelfa, vol. 5, no. 2, pp. 113-138. [37] Algeria 2020 Constitution above mentioned , refers to the Court’s internal regulation, in accordance with Articles 188 and 189, concerning the organisation of the partial renewal of the members of the Constitutional Court and the lifting of their immunity. [38] Opinion No. 04 of the Constitutional Court, issued on 2 August 2018, concerning the review of the constitutionality of the organic law relating to the Algerian Academy of the Amazigh Language (Official Gazette of Algeria No. 54 of 5 September 2018). [39] Boumediene, M. (2023).The Constitutional and Legal Basis of the Legal Texts Regulating the Algerian Constitutional Court. African Journal of Legal and Political Studies, Ahmed Draia University of Adrar, Algeria, 07(01), pp. 28-29. [40] Boumediene, M. (2023). The Methodology of the Algerian Constitution of 2020 in Organizing the Constitutional Court and its Shortcomings, op.cit, p. 604. [41] Algerian organic law No. 22-19 of 25 July 2022 establishing the procedures for notification and referral to the Constitutional Court (Official Gazette of Algeria No. 51 of 31 July 2022). [42] Algerian law No. 21-01 of 10 March 2021 amending and supplementing the Organic Law on the electoral system (Official Gazette of Algeria No. 17 of 10 March 2021). [43] Although Article 98 of Algeria 2020 Constitution above mentioned , refers to them as ‘decisions’, it is intended to refer to ‘ordinances’, which is considered a mistake in wording. [44] Decision No. 05 issued on July 28, 2022, concerning the constitutional review of the order containing the supplementary finance law for the year 2022 (Official Gazette of Algeria, No. 53, dated August 4, 2022). [45] Ramdani, F. Z. (2020). The Algerian Constitutional Amendment Project for the Year 2020. Kuwait International Law School Journal, 08(04), p. 572. [46] Algeria 1989 Constitution, adopted by referendum on 23 February 1989 (Official Gazette of Algeria No. 9 of 1 March 1989). [47] Algeria 1996 Constitution, adopted by referendum on 28 November 1996 (Official Gazette of Algeria No. 76 of 8 December 1996), amended by Law No. 02-03 of 10 April 2002 (Official Gazette of Algeria No. 25 of 14 April 2002), Law No. 08-19 of 15 November 2008 (Official Journal No. 16 of 16 November 2008) and Law No. 16-01 of 6 March 2016 (Official Gazette of Algeria No. 14 of 7 March 2016) and Algerian law No. 16-01, above mentioned. [48] Algeria 2020 Constitution, above mentioned, Article 190. [49] Ibid., Article 192. [50] Ibid., Article 191. [51] Boumediene, M. (2022). The Methodology of the Algerian Constitution of 2020 in Organizing the Constitutional Court and its Shortcomings, op.cit, p. 610. [52] Turner, C. (2015). Transitional constitutionalism and the case of the arab spring. International & Comparative Law Quarterly, Vol. 64 , Issue 2, p. 267. <https://doi.org/10.1017/S0020589315000020>. [53] Kirchoff-Foster, D. (2021). Constitutional Court Landscape Post-Arab Spring: A Survey of Design. Indiana Journal of Constitutional Design: Vol. 8, Article 2. <https://www.repository.law.indiana.edu/ijcd/vol8/iss1/2> (Last access: 02.02.2025). [54] Bernoussi, N. (2017). The 2011 Constitution and the Constitutional Judge under the direction of international studies. The 2011 Moroccan Constitution: Analyses and Comments: L.G.D.J/ Extenso edition, p. 210. [55] Chapter 10, Article 100 of the Moroccan 1962 Constitution. [56] The Constitutional Chamber is mentioned in Chapter 10, Title X of the Constitution. Its late appearance in the constitutional architecture is symbolic of the place assigned to this institution within the Moroccan political system, compared to the position of bodies responsible for reviewing the constitutionality of laws in democratic constitutions. [57] There are no guarantees of independence in its work, as it lacks independence at the administrative, organisational, and financial levels. It is linked to the judiciary (the Supreme Council) and is one of its chambers. It also lacks adequate guarantees of the independence of its members, given that its president is the president of the Supreme Council, and that its members’ terms are short and renewable, which leads to fears that members may act according to the whims of the executive branch, which has the power to influence their continued membership. [58] Menouni, A. L. (1999). The Experience of the Moroccan Constitutional Council. The Constitutions of Arab Countries, Proceedings of the 1998 Beirut Symposium, Brussels, Bruylant, p. 273. [59] Article 78 and seq. of the Morocco 1996 Constitution. [60] Brown, N. J., Waller, J. G. (2016). Constitutional courts and political uncertainty: Constitutional ruptures and the rule of judges. International Journal of Constitutional Law, Volume 14, Issue 4, p. 818. [61] Article 38 of Moroccan organic law No. 24-93 on the Constitutional Council, promulgated on 20 February 1994, as amended and supplemented, and Article 80 of Morocco 1996 Constitution. [62] Article 40 of Moroccan organic law No. 24-93 on the Constitutional Council, above mentioned. [63] Alamri, M. (2025). Constitutional Courts and the Protection of Constitutional Rights: A Comparative Analysis of Institutional Authority in Indonesia and Morocco. International Journal of Constitutional and Administrative Law, Vol. 1 No. 2, p. 118. [64] For example: Decision No. 406-2000 of the Moroccan Constitutional Council, issued on 18 July 2000; Decision No. 535-2003 of the Moroccan Constitutional Council, issued on 9 September 2003; Decision No. 628-2006 of the Moroccan Constitutional Council, issued on 30 August 2006; Decision No. 629-2007 of the Moroccan Constitutional Council, issued on 10 January 2007; Decision No. 826-12 of the Moroccan Constitutional Council, issued on 17 January 2012. [65] Bernoussi, N. (2017), op. cit., p. 211. [66] Agüero-San-Juan, S., Paredes-Paredes, F. (2025). The Relevance of Facts in Assessing the Constitutionality of Legislation. An Analysis Based on Abstract Review Mechanisms. Ius et Praxis, Vol. 31, no. 1, p. 4. <https://doi.org/10.4067/s0718-00122025000100003>. [67] Francesco, A. (2015). The Moroccan Constitutional Transition: The Method of Contextualization and Mutual Interaction. Religion & Human Rights 10, no. 1, p. 78. <https://doi.org/10.1163/18710328-12341282>. [68] Article 8 of the Moroccan organic law No. 24-93 on the Constitutional Council, above mentioned. [69] Article 133 of the Morocco 2011 Constitution. [70] Lamont, C. K., Pannwitz, H. (2016). Transitional Justice as Elite Justice? Compromise Justice and Transition in Tunisia, Global Policy, Vol. 7, Issue 2, p. 279. <https://doi.org/10.1111/1758-5899.12291>. [71] Chapter 72 of the Tunisian 1959 Constitution. [72] A temporary body was established to oversee the constitutionality of draft laws until the establishment of the Constitutional Court, in accordance with paragraph 07 of Chapter 148 of the Tunisian 2014 Constitution and Tunisian organic law No. 14 of 2014 dated 18 April 2014 on the Provisional Authority for the Review of the Constitutionality of Draft Laws. [73] Bassam Hamdi, a political analyst working for media and international institutions in Tunisia, confirmed that “those who came to power did not want to establish the court, given its pivotal role, particularly in relation to monitoring legislation and the powers of the President of the Republic and the Speaker of Parliament. There was a desire to control the government without a court to act as a judge in cases of abuse of power or violation of the Constitution. Therefore, there is no doubt that the presidents of the republic in Tunisia and the political class missed an opportunity at the beginning of the democratic transition to complete the new institutions by establishing the Constitutional Court, which could have spared the political system the upheavals and risk of collapse in 2021”. See: Al-Qizani, T., Suspended since 2014: Why do Tunisia’s rulers fear the Constitutional Court? <https://www.dw.com/ar/%D9%85%D8%B9%D8%B7%D9%84%D8%A9 -%D9%85%D9%86%D8%B0-2014-%D9%84%D9%85%D8%A7%D8%B0%D8%A7-%D9%8A%D8%AE%D8%B4%D9%89-%D8%AD%D9%83%D8%A7%D9%85 -%D8%AA%D9%88%D9%86%D8%B3-%D8%A7%D9%84%D9%85%D8%AD%D9%83%D9%85%D8%A9 -%D8%A7%D9%84%D8%AF%D8%B3%D8%AA%D9%88%D8%B1%D9%8A%D8%A9/a-72487910> Last accsess: 01.02.2026. [74] Article 125 of the Tunisian 2022 Constitution. [75] Vanberg, G. (2015). Constitutional Courts in Comparative Perspective: A Theoretical Assessment. Annual Review of Political Science Volume 18, 2015, p. 168. <https://doi.org/10.1146/annurev-polisci-040113-161150>. [76] Tamburini, F. (2021). The Ghost of the Constitutional Review in Tunisia: Authoritarianism, Transition to Democracy and Rule of Law. Journal of Asian and African Studies, Vol. 57, Issue 4. <https://doi.org/10.1177/00219096211037039>.
Constitutional review, Constitutional Council, Constitutional Court, referral, executive branch.
The Dual Nature of Interim Measures in European Antitrust Enforcement: Administrative Implementation and Judicial Oversight
The European legislature established interim measures as a crucial protective mechanism to avert the impending harm. These measures are applied by various institutions, including European courts and the European executive authority, highlighting their critical role in addressing diverse conflicts, particularly the violation of competition regulations. Antitrust activities constitute a delicate domain where dangers threaten both the common market (public interest) and competitors (private interests). Consequently, offering this tool will prevent further deterioration of injuries. Nonetheless, despite their reputation, interim measures are challenging to obtain, rendering it nearly impossible to benefit from their advantages, prompting scrutiny of the legal frameworks upon which their efficacy relies. This article seeks to elucidate the applications of interim measures in accordance with pertinent European legislation and clarify the context that has resulted in their infrequency in competition disputes, emphasising their legal nature as a vital element in their effectiveness in preventing or deterring violations of competition rules. Keywords: Urgency, prima facie, antitrust, European Commission, European courts. Introduction The concept of interim measures was initially introduced into the European legal framework in 1980 by the European Court of Justice (ECJ) through the judgment of Camera Care. In this context, interim measures were characterised as “indispensable for the effective exercise of the European Commission’s functions and, in particular, for ensuring the effectiveness of any decisions requiring undertakings to cease identified infringements”.[1] The field of competition law appears to be the first to address the application of interim measures, as the primary issue involved the invocation of Article 3 of Regulation No. 17 of 1962. This regulation was the first to enforce Articles 85 and 86 (now Articles 101 and 102) of the TFEU concerning antitrust practices.[2] In 1992, the ECJ further clarified the scope of interim measures in case N C-261/90, stating, “Provisional, including protective, measures are designed to maintain a factual or legal situation to safeguard rights whose recognition is sought from the court with jurisdiction over the substance of the matter”.[3] The preceding definitions clearly demonstrate that the fundamental purpose of interim measures is to provide an appropriate remedy, thereby facilitating the execution of the final decision by the competent authority. Despite their critical function in averting harm, interim measures in European antitrust enforcement are notoriously difficult to obtain and are infrequently applied, particularly by the European Commission. Concerns arise regarding the effectiveness of current legal frameworks in protecting undistorted competition and the adequate use and understanding of existing tools. While existing scholarship often details the legal basis, there is a gap in comprehensively analysing practical implementation challenges and the divergent approaches of administrative bodies versus judicial oversight, especially in light of recent developments in the field. This study aims to address the following question: How may interim measures serve as effective remedies in competition disputes? This article contends that, despite their essential protective function, the existing legislative framework and actual implementation of interim measures by both the Commission and European courts are riddled with contradictions and obstacles, eventually undermining their efficacy. We assert that a major reassessment of the procedural and substantive criteria is essential to realise the complete potential of their dual nature in competition conflicts. Methodology This study employs a doctrinal legal research methodology, systematically analysing primary sources by interpreting relevant EU Regulations and Treaty articles both textually and contextually to uncover their legislative intent and evolution. It also examines judgments from the ECJ and General Court within a precedential framework, emphasising how interpretations have influenced the understanding and application of interim measures over time. Additionally, it critically reviews secondary sources to contextualise legal developments and identify prevailing scholarly debates concerning practical implementation challenges. Specific attention is paid to recent landmark cases, such as Illumina/GRAIL and Broadcom, and the implications of new legislative instruments like the Digital Market Act (DMA). To identify patterns, challenges, and discrepancies, the study employs a comparative analytical framework, juxtaposing the administrative implementation of interim measures by the Commission with their judicial oversight by the European courts. This comparison will highlight divergences in application criteria (prima facie, urgency, proportionality). Furthermore, a critical legal lens will be applied to assess the efficacy and fairness of the current legal frameworks to uncover ambiguities. Interim measures, by their very nature, are designed to provide rapid relief. This study will evaluate whether the current legal and practical frameworks truly facilitate swift intervention and achieve their protective objectives. To address this enquiry, this article is structured as follows: Section 1 delves into the implementation of interim measures by the Commission, focusing on their applications in merger control and antitrust enforcement. Section 2 shifts to the judicial implementation of interim measures, scrutinising the European Courts’ role in enacting them. 1. The Administrative Implementation of Interim Measures The Commission, which serves as the executive authority for EU competition legislation, has jurisdiction to enforce these measures in two specific contexts. The first pertains to merger control, which is executed prior to the market entry of a new entity. The second context arises when competitors enter the market, introducing varying degrees of economic risk. 1.1 The use of interim measures in regulating mergers The Commission is authorised to enact interim measures to protect the competitive environment from threats arising from a merger or acquisition project by invoking Article 8(5) of Regulation No. 139/2004,[4] particularly concerning the risk of abuse of a dominant position, in accordance with Article 102 of the TFEU. 1.1.1 Achieving effective competition Effective competition is a core objective of competition policy, as established in the European Economic Community Treaty (EEC).[5] Although this purpose is attained by outlawing any restrictive practices that do not qualify as exemptions (Article 101 TFEU) or that distort market structure through the actions of abusive dominant enterprises (Article 102 TFEU), a satisfactory description of this notion is still lacking. For instance, although the ECJ delineated effective competition in the Metro-SB-Grossmarkte case as the requisite level of competition to ensure adherence to fundamental principles and the attainment of treaty objectives,[6] it remained ambiguous. Regarding the Commission, Veljanoski explicitly articulated that: “It’s rare to find in EC antitrust texts, or in statements by the Commission, a clear expression of the nature of effective competition”.[7] Article 8 of Regulation 139/2004 explicitly articulates the concept of effective competition by delineating the objective of interim measures to maintain or restore it. The Commission has not yet provided further elaboration on this matter. To further understand this concept, it is crucial to reference John Maurice Clark’s theory of effective competition, which is described as a dynamic process that includes a sequence of subtle competitive actions and reactions that are constantly changing. This theory asserts that the short-term financial health of firms is paramount.[8] Effective competition necessitates a specific market structure characterised by moderate concentration and a loose oligopoly, indicating the earlier existence of dominant enterprises. This structural focus helps explain why Article 8 of Regulation 139/2004, designed for merger control, explicitly articulates the concept of effective competition, unlike Article 8 of Regulation 1/2003, which addresses ongoing infringement.[9] The Commission’s objective in this case is to prevent these corporations from exploiting their dominant position through antitrust actions, such as unfair, exclusive, or predatory tactics. Consequently, the use of interim measures appears suitable, as they correspond with the fundamental nature of this notion. 1.1.2 The reality of achieving effective competition in the Illumina/Grail case After several member states asked for a referral (notification), the Commission decided to start proceedings because it found that the acquisition raised “serious doubts” owing to the creation of vertical integration between two different supply chain companies. The merger in question is characterised as a “killer acquisition”, typically involving a huge corporation acquiring a creative startup, which often has minimal or non-existent turnover, as is the case with GRAIL. This form is exempt from the merger control criteria established in Article 4 of Regulation 139/2004, complicating the identification of the appropriate body, whether the Commission or National Competition Authorities. This prompted the Commission to adopt an expansive interpretation of Article 22 to incorporate flexibility into the regulatory standards. Consequently, subjecting mergers below-thresholds within its jurisdiction.[10] While the Commission was still conducting its investigation, Illumina publicly announced the finalisation of its acquisition of GRAIL, constituting a clear violation of the standstill obligation as stipulated in Article 7 of Regulation 139/2004. Over two months later, temporary steps were implemented in response to Illumina’s “gun jumping” conduct. A year later, the Commission enacted a second interim measure due to the issuance of an incompatible decision and failure to comply with the initial measures. - Substance of applied interim measures In both decisions, the Commission ensured that certain changes were implemented to prevent the formation of a new company, which helped keep Illumina separate from Grail, the primary goal they wanted to achieve. Additionally, it prepared Grail for a potential divestment to disrupt market dominance by introducing a new competitor, thus averting the risk of market power abuse by Illumina.[11] Furthermore, the commission implemented a behavioural remedy characterised by limitations on information exchange. Ezrachi believes that pursuing behavioural treatments is more adaptable, beneficial, and cost-effective than structural solutions for expanding markets, such as the European Union.[12] The resolution of the issue through an appropriate remedy relies on the Commission’s discretionary authority, which is determined by the nature of the infringement. Despite elevated expenses and purchaser difficulties, structural remedies are considered the most effective temporary options in merger cases because they immediately tackle anticompetitive behaviour by altering the market structure to promote competition. These commitments arose from prima facie, urgency, and proportionality considerations, despite Article 8(5) of Regulation No. 139/2004 not explicitly referencing them. This is due to the regulation’s distinct structure, which necessitates a more comprehensive evidentiary presentation prior to decision-making, aimed at averting premature and potentially detrimental interventions in mergers that may ultimately be approved.[13] Nonetheless, accomplishing this is challenging when temporary measures necessitate a swift response, which may mislead the Commission. - Legal ambiguities inherent in the implemented interim measures Notwithstanding the Commission’s efforts to ensure effective competition throughout the transaction, the protracted nature of the Illumina/GRAIL proceedings, culminating in identical obligations across multiple decisions, raises serious questions regarding the timeliness and effectiveness of the Commission’s interim measures. This protracted process deviates significantly from the ideal of swift, decisive intervention aimed at preventing irreversible harm, suggesting that the measures functioned more as an extended market test rather than a rapid protective mechanism. First, the interim measure decisions from October 2021 and 2022 display identical obligations, notably highlighting structural separation, financial discovery, autonomous management, and information restriction. This outcome indicates that either the transaction did not affect competition during the second instance (effective competition remains intact, so restoration is unnecessary) or that the Commission failed to recognise the alleged antitrust infringement because reinstating previously overlooked interim measures is irrational. This outcome is connected to the Commission’s ambiguity regarding its findings, as making a timely decision could compromise the interests of the merger initiators, thereby elucidating Illumina’s swift response. Schweitzer cautions that when the data is less extensive, we should approach temporary solutions with greater prudence.[14] Illumina is confident that vertical integration with GRAIL will enhance efficiency by expediting the introduction of GRAIL’s blood test within the European Economic Area (EEA). Furthermore, there were no existing competitors to Grail in the downstream market, only potential ones that may or may not materialise in the future, attributable to the creation of the “Gallery” cancer screening test. Moreover, Illumina is not the sole provider of next-generation sequencing systems in the upstream market; other rivals offer analogous services that match Illumina’s price and functionality, rendering the foreclosure action ineffective for the company.[15] Second, the Commission’s restorative measures. According to the press release dated April 12, 2024, the restorative measures will follow the interim measures, as explicitly stated: “As regards the transitional measures … They will replace the interim measures adopted by the Commission on October 22, 2022, which are currently in effect”. This affirms that “restoration” is not a temporary measure within merger control, which contradicts Article 8(5). Lastly, the Commission was mistaken in accepting the referral. The Commission overstepped its power by interpreting Article 22 TFEU as a remedial mechanism because it lacked the jurisdiction to review below-threshold mergers. This misapplication of the law resulted in ineffective interim remedies because Illumina halted the unwinding of Grail in June 2024 after the Commission accepted its planned commitments in April 2024.[16] Illumina invoked Article 9 of Regulation 1/2003 to modify the remedial measures to its advantage. 1.2 The use of interim measures in halting antitrust acts When the enquiry demonstrates to the Commission the presence of anticompetitive practices, and the impact of these actions poses a genuine threat, the nature of the interim measures will shift to serve as a deterrent to further obstructing competition. However, such metrics are associated with the fulfilment of specific criteria that distinguish between a conventional and digital market, such as the following: - The impact of the assessment factors on the efficacy of interim measures Article 8 of Regulation 1/2003 explicitly stipulates that in cases of urgency, where there is a threat of significant and irreversible damage to competition during investigations, the Commission may impose interim remedies based on a prima facie determination of the infringement. Nonetheless, only anticompetitive activities that exhibit “serious doubts of infringement at first glance” and cause “serious and irreparable harm” to competition are subject to these proceedings. Moreover, it is widely acknowledged that the principle of proportionality significantly influences the permissible scope of interim measures in each instance to provide an equitable balance among the various interests involved. This arises from the potential confrontation with the undertakings’ rights, including property rights in the context of structural remedies and business rights in the context of behavioural remedies.[17] These remarks are seen as a double-edged sword, as they provide extensive interpretation that may lead to adverse consequences, exemplified by the IMS Health case in 2001. The General Court’s ruling suspended the Commission’s temporary actions. Consequently, this resulted in the Commission’s inertia in implementing them. Frinhas attributes the limited application of Article 8 of Regulation 1/2003 to the Commission’s decision to implement a retrenching policy, which facilitated the emergence and economic development of firms, particularly in the early 2000s, by refraining from ordering interim measures due to concerns about potential errors,[18] referring to the widespread understanding that interim measures are excluded if the case raises new or complex matters of law or fact.[19] This apprehension clearly reflects the Commission’s challenges in addressing the legal framework of interim measures, rendering success nearly unattainable, particularly when complainants lack the right to request such measures. While this may alleviate some of the Commission’s burdens, it is not universally beneficial. In its ruling on Broadcom, the Commission seemingly achieved its prima facie case but did not fulfil the urgency requirement. The commission determined, via a market test, that there was an abuse of dominance characterised by “exclusivity-inducing provisions” in the chipset market for TV set-top boxes and modems that raised “serious doubts”.[20] The Commission has acknowledged that the final decision will not rectify the irreversible damage, aside from eliminating competitors or marginalising others.[21] The Commission’s delay in the Broadcom case, where it did not fulfil the urgency requirement, undermines the predictability and reliability of interim measures. If the very criterion of urgency, fundamental to the nature of interim relief, is inconsistently applied, it creates uncertainty for both complainants and undertakings, thereby diminishing the system’s overall effectiveness as a deterrent and protective tool. Nevertheless, the Commission took four months to order Broadcom to fix its actions by agreeing to end the exclusivity clauses with the companies it worked with and avoid using such unfair terms with them in the future.[22] This time, the Commission implemented only behavioural remedies owing to the changeable character of interim measures, particularly when the purported anticompetitive behaviour arises from the contractual relationship between the enterprise and the economic entities,[23] as in the case of Broadcom. The Commission’s interim measures seek to avert the occurrence of exclusivity provisions in the future while also terminating them. Nonetheless, the success of the case was attributed not to the Commission’s efforts but to proactive engagement in proposing alternative commitments. In response to interim remedies, Broadcom offered pledges to alleviate the Commission’s concerns, concluding the probe after a full year, in July 2020.[24] The Broadcom case, where commitments were ultimately preferred, illustrates that shifting the application from Article 8 to Article 9 of Regulation 1/2003 is regarded as the optimal approach for the Commission, particularly in terms of resource allocation. However, this change could potentially harm interim measures, reducing their importance compared to other enforcement mechanisms. This may have motivated the European legislator to reassess these norms when incorporating them into the DMA. - The relationship between Article 8 of Regulation 1/2003 and Article 24 of DMA By extrapolating Article 24 of the DMA,[25] it indicates that it has the same legal structure as Article 8 of Regulation 1/2003 regarding the assessment process: prima facie findings and urgency. This is also related to the provisional, renewable, and reversible attributes of these measures. Nonetheless, three deviations are present: the evaluation of pertinent elements, the aim of enacting these measures, and the legal tools used for their implementation. The DMA assessment pack indicates that the EU legislator has rendered the evaluation of prima facie and urgency more adaptable for applications. Demonstrating a “prima facie infringement” of Articles 5, 6, and 7 of the DMA will be unproblematic, particularly when the obligations of the gatekeeper are explicitly articulated and defined, in contrast to Article 8 of Regulation 1/2003, which necessitates a comprehensive examination of competition cases through two articles (101 and 102 TFEU).[26] These obligations are meant to target specific gatekeepers or core platform providers, consequently diminishing the necessity for context-dependent individual evaluations. Analogous to prima facie, demonstrating “serious and irreparable damage” is also unproblematic. The effect evaluation indicates that damage is significant when the gatekeeper is larger, a scenario readily observable as markets frequently move swiftly in favour of a singular gatekeeper that possesses a distinct advantage over its rivals. Consequently, gatekeepers are well-positioned to perpetrate anticompetitive actions. The term “irreparable damage” denotes the adverse consequences anticipated in the future, while interim remedies serve to avert the purported violation of responsibilities aimed at halting damage that cannot be rectified by a final ruling. Specific signs of this disadvantage have been noted, especially concerning previous competition procedures in which the Commission implemented interim remedies such as market departures, marginalisation, consumer unhappiness, and a reputation for inefficiency.[27] Article 8 of Regulation 1/2003 offers direct competition protection, necessitating compliance with a broad and intricate criterion, whereas Article 24 of the DMA establishes interim measures to safeguard both enterprises and end-users, delineating a straightforward threshold. These two objectives are fundamental components of core platforms, as they constitute an effective framework for the success of the gatekeeper. Mistreatment of both parties indicates a shifting power imbalance favouring the gatekeeper. The DMA recognised the Commission’s unilateral authority in its implementation, although it did not inhibit the provision of assistance to the Commission, particularly as the DMA functions as a system of ex-ante regulation, in comparison to the Regulation 1/2003 system that depends on the ex-post regulation.[28] Consequently, it is important to recognise the implicit acknowledgement of the involvement of both businesses and end users in the effective execution of Article 24 by assisting the Commission through the provision of evidence or testimony, in contrast to Article 8 of the Regulation, which unequivocally affirms the Commission’s ex officio authority. The gatekeeper’s duty encompasses various legal aspects, including anticompetitive practices, unfair competition, and consumer protection issues. Article 8 of Regulation 1/2003 explicitly pertains to anticompetitive behaviour. This discrepancy arises from the Regulation’s adherence to Articles 101 and 102 TFEU, in contrast to the DMA, which seeks to govern the digital market across all aspects, including preventing violations of Articles 101 and 102 TFEU. Multiple claims pertain to the practical execution of the system within the digital market context, which is crucial because the DMA’s function is limited to ex-ante regulation, while ex-post regulation falls under Regulation 1/2003.[29] However, the extent to which the formulation of Article 8 addresses the alteration of anticompetitive conduct in the market remains ambiguous. A crucial aspect is that the Commission might mandate temporary measures through an implementing act that must be adopted following advisory procedures.[30] The transition from a decision to an implementing act is significant as it signifies a modification of the Commission’s unilateral power to impose interim measures. The Commission typically enacts such measures to ensure the consistent application of EU legislation in all member states. Unlike decisions that demonstrate the Commission’s discretionary authority, the implementing act entails a cooperative procedure between the Commission and the Committee, known in this context as the “Digital Market Committee”.[31] This advisory approach entails initiating discussions on prospective provisional actions within the Committee by providing opinions without delineating a specific methodology. However, the article did not clarify if this opinion was obligatory for the Commission, although the phrase “taking utmost account of the conclusions…and of the opinion delivered”,[32] demonstrates that this was not the situation. Nonetheless, this collaboration negates the “initiative” aspect present in Article 8 by rendering interim measures a collective endeavour. The Commission has not yet enforced these remedies against gatekeepers. The Commission continues to favour pursuing promises to address competition disputes despite efforts to enhance the reliability of interim measures in the digital market. In its case against Google, the Commission determined that the corporation exploited its dominance in the AdTech industry and chose to pursue commitments rather than implement interim measures.[33] This suggests the Commission’s reluctance to act to prevent prolonging the procedures unnecessarily. 2. The Judicial Oversight Through Interim Reliefs According to Article 279 TFEU, the European Courts possess the authority to mandate interim measures in any matter presented to them if deemed necessary. Despite the absence of a definition of those provisions, it is plain that they maintain their urgent character, as shown by the phrase Necessary interim measures. In nature, interim measures are purely procedural centralised orders, issued by the presiding judge of the pertinent court. The procedural rights of the parties are elucidated, and equitable procedures are guaranteed, rather than assigning substantive rights and obligations, as it embodies strategic methods for conflict resolution.[34] The scope of the problems addressed by these methods is extensive, including competition disputes. Nonetheless, the judicial power of the European Courts subsequently affects the execution of these proceedings from the judge’s viewpoint, which is clarified as follows: 2.1 Criteria for suspending the contested act In accordance with Article 160(1) of the Rules of Procedure of the Court of Justice[35] and Article 156(1) of the Rules of Procedure of the General Court,[36] an application for interim measures to suspend the contested act must pertain to ancillary litigation to be accepted, which means that actions for annulment and appeals are the main actions that resolve disputes on their merits. Accordingly, the necessity of interim measures becomes apparent when the appellant’s interests are jeopardised by the ongoing consequences of disputed acts.[37] European courts use the same assessment criteria as the Commission. The sole distinction is that the appellant is responsible for invoking them by demonstrating a prima facie case, urgency, and proportionality of the disputed EU action. Farinhas asserts that a prima facie cause for judicial interim relief is formed when the circumstances present enquiries that existing case law does not definitively address, or when the applicant’s arguments introduce “serious doubts” regarding legal theories affirmed in prior judgements.[38] An illustration of the latter is the IMS Health case, which exemplifies the interplay between competition law and intellectual property rights. In implementing interim remedies, the Commission based its decision on a broad reading of the Magill judgment, recognising an extraordinary case in which the refusal to licence intellectual property rights constitutes an abuse of dominance. Through a General Court order, the corporation successfully suspended the Commission’s interim decision, which the ECJ affirmed following the Commission’s appeal. This fact raised doubts about the difficulty of applying interim measures when innovative approaches to Articles 101 and 102 are considered.[39] Nonetheless, the ECJ determined that a refusal to grant a licence constitutes abuse of dominance. Nevertheless, the exercise of exclusive rights may pertain to abusive dominance, particularly when abusive conduct obstructs the introduction of a new product sought by consumers.[40] This did not apply to the Commission, which failed to adhere to the stipulations of a new product, mandating IMS to compulsory licence its proprietary brick structure encompassing 1860 market segments that IMS had developed and safeguarded by copyright, to furnish analogous regional sales reports to pharmaceutical companies, contending that the industry was accustomed to this format and rejected data presented in any other manner.[41] The Commission did not establish prima facie based on the actual facts of the case; instead, it relied on precedent without assessing the two cases’ contestability. This reliance subjects the Commission’s prima facie to criticism, particularly as it articulated its interim measures in a definitive manner that contradicts their temporary nature.[42] Furthermore, the Commission failed to examine the remaining two reasons, as such a licence would inflict significant and irreparable harm to IMS copyrights and alter the equilibrium between private and public interests regarding the protection of innovations. The IMS case demonstrated the extensive discretion of the European Courts in implementing interim measures, allowing them to not only exercise judicial authority but also to establish the criteria for interim actions by the Commission. This led to a decrease in the scope of the Commission’s application. Nevertheless, temporary actions under the DMA provide a novel viewpoint for achieving the objectives of both the Commission and European courts by shifting towards regulatory theory. 2.2 Transition from competition law to regulatory theory The last case relevant to this issue was the ByteDance case in 2024.[43] Following its designation as a gatekeeper by the Commission through decision C (2023) on 5 September 2023 under the DMA, Bytedance submitted an application to the General Court for interim measures on 16 November 2023, seeking to suspend the Commission’s decision owing to the assertion of serious and irreparable harm threatening its marketplace and innovation.[44] The judge of the General Court remained unconvinced and consequently rejected the request due to insufficient demonstration of urgency or prima facie evidence, wherein the applicant must establish the existence of serious and irreparable harm resulting from the contested decision that cannot await resolution until the final decision is rendered. Bytedance’s action was to assert allegations lacking prima facie infringement evidence. The main accusation was that there was a breach of confidentiality by revealing how TikTok profiles its users based on the Commission’s use of Article 15 of the DMA. Nonetheless, the judge endorsed the Commission’s assertion that Article 15 aims to improve transparency and clarify profiling procedures, aligning with the DMA’s objective of consumer protection, while not encompassing the concept of consumer harm. This indicates that the DMA serves to enhance competition law through specific requirements.[45] Among these, privacy is highlighted by ByteDance in its assertion, as it is not regarded as a goal of competition legislation, but rather as a concern addressed by the DMA.[46] Since Article 15 does not necessitate publication or disclosure of trade secrets, but rather offers a mere report. This does not pose a risk to ByteDance, as competitors and third parties lack access to information classified as confidential by the company.[47] This case illustrates that, while seeking interim measures in a legal setting is considered a right to trial, it does not guarantee that this right will be granted to the accused.[48] The Court highlighted that the DMA is not conventional competition legislation but a regulatory mechanism intended to impose duties on major digital platforms prior to the onset of harm. The General Court’s methodology in the Bytedance case was formalistic and threshold-oriented, utilising the regulatory framework of gatekeeper designation under the DMA. The DMA operates on assumptions and quantitative criteria, allowing minimal opportunity for platforms to contest their designation unless they present persuasive counter evidence. This signifies a distinct shift from the effects-based rationale of competition law to a rules-based regulatory paradigm. Conclusion Interim remedies are justified when there is a threat of significant and irreparable harm to competition that cannot be rectified by the decision made by the pertinent body. Failing to implement interim measures in a timely manner may negatively impact competitiveness. The Commission is tasked with executing its interim measures judgments, while the European Courts provide judicial oversight, ensuring that such circumstances do not worsen, thus affirming the dual nature of these procedures. Nevertheless, the subsequent results were derived from this research. - The Commission does not implement interim measures efficiently, as the interaction between these measures and the assessment elements transforms their character from swift and provisional to lengthy and burdensome. The lack of an objective standard to differentiate between “serious doubts” and “mere uncertainties”, coupled with the extensive spectrum of urgency and the need to balance interests, incentivises the Commission to maintain those measures in the background. - The challenges faced by the Commission, particularly in cases such as Broadcom and Illumina/GRAIL, suggest that the application of interim measures often functions more as an extended market test than as a rapid, temporary solution. This protracted process, as evidenced by frequent recourse to commitments, indicates a divergence from the intended swiftness and provisional nature of such measures. - The Commission’s interim measures may receive minimal acknowledgement from the undertakings, as the factual and legal determinations could be predicated on erroneous evaluations or legislative deficiencies, thereby resulting in litigation before the European Courts in defence of the right to a fair trial. - Judicial interim measures exert greater influence than those of the Commission despite the shared assessment criteria because of the extensive discretionary authority held by European Courts in their issuance. Furthermore, European courts possess greater influence over the Commission by imposing stringent criteria for adopting interim measures, which may be deemed excessive. These conclusions necessitate legislative modifications to establish a contemporary, adaptable, and equitable framework for interim measures between the Commission and European Courts. References Scholarly literature: Art, J. Y. (2015). Interim relief in EU competition law: A matter of relevance. Italian antitrust Review, 2(1); Bagnoli, V., Faraone. M. F. N. (2025). Illumina/Grail: the “new normal” of killer acquisition and below-threshold acquisitions in search of reconsideration. Market and competition law review, 9(2); Baskoy, T. (2005). Effective Competition and EU Competition Law. Review of European and Russian Affaires, 1(1); Burnside, A. J., Kidane, A. (2018). Interim measures: An overview of EU and national case law. E-Competition Antitrust Case Laws e-Bulletin. N 86718. <https://www.concurrences.com>; Chocron Giraldez, A. M. (2016). Interim measures and EU legislation. E-Revista International de la Protection Social, 1(1); Colangelo, G., Martinez, A. R. The metrics of the DMA’s success. European Journal of Risk Regulation, 16(3); Ezrachi, A. (2006). Under and over-prescribing of behavioural remedies. Centre for Competition Law and Policy, University of Oxford. Working paper No. L 13/15. <https://doi.org/10.2139/ssrn.913773>; Farinhas, C. (2023). Are interim measures under Regulation 1/2003 excluded in new or complex cases? Journal of European Competition Law & Practice, 14(8); Farinhas, C. (2025). Interim measures in digital markets: interaction between the DMA and Regulation 1/2003. Utrecht Law Review, 21(2). DOI:10.36633/ulr.1118; Farinhas, C. (2025). The Commission’s evaluation of Regulation 1/2003 and Regulation 773/2004: implication for interim measures proceedings in competition law. European Competition Journal. <https://doi.org/10.1080/17441056.2025.2499331>; Iacovides, M. C., Stylianou, K. (2024). The new goals of EU competition law: Sustainability, labour rights and privacy. European Law Open Journal, 3(3); Leandro Vasconcelos, R. (2021). The adoption of remedies under Regulation 1/2003: between success and coherence. Market and competition law review, 5(2); Šadl, U., Zurita, L. L., Brekke, S. A., Naurin, D. (2022). Law and order: the orders of the European court of justice as a window in the judicial process and institutional transformations. European Law Open Journal, 1(3); Skara, G., Muçollari, O., Hijdini, B. (2024). Adopting the competition policy for the digital age: Assessing the EU’s approach. Laws, 13(5); Veljanovski, C. (2004). EC Merger policy after GE/Honeywell and Airtours. The Antitrust Bulletin, 49(1-2). Normative acts: Council Regulation (EC) No 1/2003. (2002). On the implementation of the rules on competition laid down in Article 81 and 82 of the Treaty, OJEU L 1/1; Regulation (EC) No 139/2004. (2004). On the control of concentrations between undertakings (merger control Regulation). OJEU L 024; Regulation (EU). (2022). On contestable and fair markets in the digital sector. EU Parliament and the Council. OJEU L 265/1; Regulation No 182/2011. (2011). Laying down the rules and general principles concerning mechanisms for control by Members States of the Commission’s exercise of implementing powers. EU Parliament and Council. OJEU L 55/13; Rules of procedure of the Court of Justice. (2012). OJEU L 265/1; Rules of procedure of the General Court. (2015). OJEU L 105/1. Court decisions Court of Justice. (1980). Case 792/79 R, Camera Care Ltd v. Commission of the European Communities, EU:C:1980:18. Luxembourg; Order of the president of the General Court. (2024). Case T-1077/23R Bytedance v. European Commission (interim relief). Luxemburg. European Commission decisions: Decision C (2019) 7406 final. (16 October 2019). Case AT.40608-Broadcom; Decision C (2024) 6433 final. (6 September 2024), Withdrawal decision Regulation (EC) 139/2004; Summary of Commission decision. (2020). Relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union and Article 54 of the EEA Agreement. OJEU C 81/9. Supplementing Materials: Commission staff working document. (2020). Impact assessment report; European Commission. (2024). Commission approves Illumina’s plan to unwind its completed acquisition of Grail. Press-release. <https://eu.europa.eu>; European Commission. (2025). Commission fines Google 2.95 billion euro over abusive practices in online advertising technology. Press-release. <https://ec.europa.eu>; Illumina/Grail. (2021). Briefing paper on the competition case and benefits of the transaction for EEA patients. <https://appliedantitrust.com>. Mergers Overview. Competition. European Union. <https://competition-policy.ec.europa.eu>; OECD. (2022). Interim measures in antitrust investigations. OECD Competition Policy Roundtable Background Note. <https://oecd.org>. Footnotes [1] Court of Justice. (1980). Case 792/79 R, Camera Care Ltd v. Commission of the European Communities, EU:C:1980:18. Luxembourg, p 129. [2] Burnside, A. J., Kidane, A. (2018). Interim measures: An overview of EU and national case law. E-Competition Antitrust Case Laws e-Bulletin. N 86718, p. 2. <https://www.concurrences.com>. [3] Chocron Giraldez, A. M. (2016). Interim measures and EU legislation. E-Revista International de la Protection Social, 1(1), p. 137. [4] Regulation (EC) No 139/2004. (2004). On the control of concentrations between undertakings (merger control Regulation). OJEU L 024. [5] Baskoy, T. (2005). Effective Competition and EU Competition Law. Review of European and Russian Affaires, 1(1), p. 2. [6] Ibid., p. 4. [7] Veljanovski, C. (2004). EC Merger policy after GE/Honeywell and Airtours. The Antitrust Bulletin, 49(1-2), p. 179. [8] Baskoy, T., op. Cit., pp. 7-8. [9] Council Regulation (EC) No 1/2003. (2002). On the implementation of the rules on competition laid down in Article 81 and 82 of the Treaty, OJEU L 1/1. [10] Bagnoli, V., Faraone. M. F. N. (2025). Illumina/Grail: the “new normal” of killer acquisition and below-threshold acquisitions in search of reconsideration. Market and competition law review, 9(2), pp. 117, 121. [11] Decision C (2024) 6433 final. (6 September 2024), Withdrawal decision Regulation (EC) 139/2004, pp. 2-4. [12] Ezrachi, A. (2006). Under and over-prescribing of behavioural remedies. Centre for Competition Law and Policy, University of Oxford. Working paper No. L 13/15, p. 4, 5. <https://doi.org/10.2139/ssrn.913773>. [13] Mergers Overview. Competition. European Union. <https://competition-policy.ec.europa.eu>. [14] OECD. (2022). Interim measures in antitrust investigations. OECD Competition Policy Roundtable Background Note, p. 14. <https://oecd.org>. [15] Illumina/Grail. (2021). Briefing paper on the competition case and benefits of the transaction for EEA patients. Paras. 3.4, 4.3, pp. 4-6. <https://appliedantitrust.com>. [16] European Commission. (2024). Commission approves Illumina’s plan to unwind its completed acquisition of Grail. Press-release, p. 1. <https://eu.europa.eu>. [17] Leandro Vasconcelos, R. (2021). The adoption of remedies under Regulation 1/2003: between success and coherence. Market and competition law review, 5(2), p. 158. [18] Farinhas, C. (2025). Interim measures in digital markets: interaction between the DMA and Regulation 1/2003. Utrecht Law Review, 21(2), p. 29. DOI:10.36633/ulr.1118. [19] Farinhas, C. (2023). Are interim measures under Regulation 1/2003 excluded in new or complex cases? Journal of European Competition Law & Practice, 14(8), p. 16. [20] Decision C (2019) 7406 final. (16 October 2019). Case AT.40608-Broadcom, p. 17. [21] Ibid., p. 98. [22] Ibid., p. 118. [23] OECD, op. Cit., p. 24. [24] Summary of Commission decision. (2020). Relating to a proceeding under Article 102 of the Treaty on the Functioning of the European Union and Article 54 of the EEA Agreement, p. 03. OJEU C 81/9. [25] Regulation (EU). (2022). On contestable and fair markets in the digital sector. EU Parliament and the Council. OJEU L 265/1. [26] Commission staff working document. (2020). Impact assessment report, para. 13, p. 4. [27] Farinhas, C. Interim measures in digital markets, op. Cit, p. 22. [28] Skara, G., Muçollari, O., Hijdini, B. (2024). Adopting the competition policy for the digital age: Assessing the EU’s approach. Laws, 13(5), p. 13. [29] Farinhas, C. (2025). The Commission’s evaluation of Regulation 1/2003 and Regulation 773/2004: implication for interim measures proceedings in competition law. European Competition Journal, p. 5. <https://doi.org/10.1080/17441056.2025.2499331>. [30] Regulation on contestable and fair markets in the digital sector, op. Cit, Art. 50. [31] Ibid, Art 50(1). [32] Regulation No 182/2011. (2011). Laying down the rules and general principles concerning mechanisms for control by Members States of the Commission’s exercise of implementing powers. EU Parliament and Council. OJEU L 55/13, Art. 4(2). [33] European Commission. (2025). Commission fines Google 2.95 billion euro over abusive practices in online advertising technology. Press-release. <https://ec.europa.eu>. [34] Šadl, U., Zurita, L. L., Brekke, S. A., Naurin, D. (2022). Law and order: the orders of the European court of justice as a window in the judicial process and institutional transformations. European Law Open Journal, 1(3), p. 561. [35] Rules of procedure of the Court of Justice. (2012). OJEU L 265/1. [36] Rules of procedure of the General Court. (2015). OJEU L 105/1. [37] Chocron Giraldez, A. M, op. Cit, p. 6-7. [38] Farinhas, C. Are interim measures under Regulation 1/2003 excluded in new or complex cases? op. Cit, p. 21. [39] Ibid., p. 27. [40] Ibid., p. 29. [41] Art, J. Y. (2015). Interim relief in EU competition law: A matter of relevance. Italian antitrust Review, 2(1), p. 63. [42] Ibid., p. 69. [43] Order of the president of the General Court. (2024). Case T-1077/23R Bytedance v. European Commission (interim relief). Luxemburg, paras. 2-6. [44] Ibid., para. 17. [45] Colangelo, G., Martinez, A. R. The metrics of the DMA’s success. European Journal of Risk Regulation, 16(3), p. 1027. [46] Iacovides, M. C., Stylianou, K. (2024). The new goals of EU competition law: Sustainability, labour rights and privacy. European Law Open Journal, 3(3), p. 607. [47] Order of the president of the general court, op. Cit, para. 17. [48] Chocron Giraldez, A. M, op. Cit, p. 137.
Urgency, prima facie, antitrust, European Commission, European courts.
Epistemic-Justificatory Proof Theory and the Legitimacy of Judicial Decisions
A judge’s decision plays a central role in the rule of law by establishing legal truth and legitimizing the state’s coercive power. This role has become increasingly complex in contemporary adjudication, where courts confront scientific, statistical, and algorithmic evidence amid normative uncertainty and heightened human rights demands. This article examines legal interpretation and proof in judicial decisions as a process of epistemic justification rather than procedural compliance. Using a qualitative normative approach supported by conceptual–philosophical and limited comparative analysis, the study explores how judges construct claims of legal truth through evidentiary reasoning. A review of the literature shows that existing studies on proof remain fragmented—doctrinal, probabilistic, or technological—and lack an integrated epistemological framework capable of explaining the inferential transition from evidence to legal fact. This fragmentation risks reducing judicial legitimacy to formal compliance or subjective judicial belief. The article’s primary contribution is the proposal of Epistemic-Justificatory Proof Theory, which defines proof as an epistemic practice that necessitates inferential transparency, rational coherence, and intersubjective testability. By integrating legal theory with the philosophy of science, this framework offers an evaluative model for assessing the legitimacy of judicial decisions and provides a normative response to the challenges of proof in contemporary justice systems. Keywords: Judicial decisions, legal proof, epistemic justification, judicial reasoning, rule of law. Introduction A judge’s decision is a central instrument in a state of law because it serves to establish legal truth while also legitimizing the state’s use of coercive power. The relevance of this study is increasingly strengthened in the context of modern justice, which is faced with the increasing complexity of evidence, ranging from scientific and statistical to algorithmic evidence, amidst the uncertainty of the meaning of legal norms and the demands for human rights protection. In such situations, interpretation and proof can no longer be understood as mere technical stages but rather as a crucial space where law is shaped through judicial reasoning. The subject of this research is the interpretation of law and evidence in judicial decisions, understood as the process of simultaneously seeking and justifying legal truth. This research aims to analyze how judges construct truth claims through evidentiary reasoning and to formulate a conceptual framework capable of explaining these standards of truth legitimacy. Specifically, this article aims to shift the understanding of proof from mere procedural compliance toward an epistemic practice that demands rational, coherent, and intersubjectively accountable justification. Several previous studies have examined the interpretation and rules of evidence from various perspectives. Hartanto and Hidayat determined that the implementation of the reverse burden of proof in drug money laundering cases was normatively suitable but not yet effective in significantly curtailing the crime.[1] These findings align with Morrison’s critique of the vulnerability of subjective forensic practices to bias and the urgency of shifting to transparent and validated data-driven methods,[2] as well as Curley et al.’s demonstration that bias in jury decisions is multifaceted, interactive, and potentially disruptive to the rationality and fairness of verdicts.[3] On the other hand, Cui et al. assert that advancements in natural language processing and big data have significantly improved the prediction of legal decisions, although the human-machine performance gap persists.[4] Meanwhile, Sachoulidou warns that the use of AI in law enforcement creates serious tension between efficiency and human rights protection, necessitating special procedural safeguards, particularly transparency and clarity of reasoning.[5] Roberts asserts that the history of comparative law enhances the comprehension of criminal procedure, yet necessitates methodological prudence to prevent misinterpretations and the genetic fallacy.[6] Chukwuma’s research on terrorism trials in Nigeria shows that proof actively shapes legal truth within the framework of pre-crime rationality.[7] Alpes and Baranowska’s research shows that evidence of pushback against asylum seekers is often reduced or left out of ECtHR judgments because of proof practices and the state’s assumption of good faith. This makes it harder to see the factual truth and the political side of border violence.[8] The literature consistently demonstrates that proof is neither neutral nor mechanistic. Numerous studies underscore the constraints of formal proof efficacy, the impact of cognitive bias on evidence evaluation, and the conflict between technological efficiency and the safeguarding of human rights. However, these studies still tend to discuss proof in a fragmented manner—whether from a doctrinal, probabilistic, or technological perspective—without developing an integrated epistemological framework that explains how the inferential transition from evidence to legal fact can be rationally justified and its truthfulness assessed. Based on these conditions, there is a research gap in the form of the absence of an approach that systematically links legal proof theory with epistemological and philosophical foundations. This gap leads to the legitimacy of legal truth in judicial decisions often being assumed as a consequence of procedural compliance or the judge’s subjective beliefs, rather than being critically evaluated based on the quality of reasoning and its epistemic justification. The novelty of this article lies in the introduction of Epistemic-Justificatory Proof Theory, an approach that views proof as an epistemic practice requiring inferential transparency, rational coherence, and intersubjective testability. By integrating legal theory and the philosophy of science, this article offers a new evaluative framework for assessing the legitimacy of judicial decisions while also placing evidence within the value horizon of a democratic rule of law, including in the context of Indonesia, which is based on Pancasila. This article is structured as follows. The first part discusses judicial interpretation and proof as a process of seeking truth. The second part outlines the epistemological basis of judicial reasoning in proof. The third part analyzes the judge’s decision as a practice of language and rational justification and formulates Epistemic-Justificatory Proof Theory as the main theoretical contribution of this research. Methodology This research uses a qualitative-normative (doctrinal) approach, supported by conceptual-philosophical and limited comparative analysis. The doctrinal approach is used to map the concepts of interpretation, standards of proof, and decision-making within the framework of the rule of law, while conceptual-philosophical analysis is used to reconstruct proof as an epistemic practice—that is, to assess how the inferential transition from evidence to legal facts is constructed, tested, and rationally justified. Limited comparison is used to examine the development of modern proof problems (e.g., scientific, statistical, and algorithmic evidence) as material to sharpen arguments in the Indonesian context. This combination of methods was chosen because the research objective was not to empirically measure the behavior of judicial actors but rather to explain the structure of judges’ reasoning and justification and formulate an evaluative framework for Epistemic-Justificatory Proof Theory. Therefore, the use of these methods directly supports the achievement of the research objective: to produce a model for assessing the legitimacy of legal truth that emphasizes coherence, transparency, and intersubjective testability. 1. Judicial Interpretation and Proof as a Process of Truth-Finding 1.1. Indeterminacy of legal meaning and the role of judges in shaping judicial decisions Ronald Dworkin argued that legal interpretation is never neutral; when a rule is recognized as legitimate law, that recognition implicitly provides a moral basis for the state to use coercion in enforcing rights and obligations.[9] This view asserts that legal interpretation always operates within a specific value horizon, thus fundamentally challenging Hans Kelsen’s position, which views law as a pure normative order free from non-legal elements.[10] This belief confirms that from the initial interpretation stage, claims of legal truth have been bound to normative considerations that cannot be fully neutralized. This argument is also supported by H. L. A. Hart, who, through his analysis, addressed the uncertainty of the meaning of legal rules. Hart argues that in certain situations, judges cannot fully base their decisions on existing positive rules because primary rules contain the possibility of ambiguity or uncertainty about meaning. A classic example is the rule, “No vehicles are allowed in the park”. In many situations, this ban clearly applies to cars, but a gray area (penumbra) emerges when faced with other types of “vehicles”, such as motorized wheelchairs or toy cars.[11] In that penumbral space, the judge legitimately used discretion and considered non-legal norms, including moral considerations, to build a justifiable basis for the decision. So in this case, the uncertainty of meaning is not an anomaly but rather an inherent characteristic of primary rules, making the use of discretion not only legitimate but also a structural consequence of the very practice of interpreting law. 1.2. Proof as a rational endeavor to establish truth The uncertainty of legal meaning that arises at the interpretation stage does not stop at the level of the norm but continues directly to the evidence stage in court. In this context, a standard of proof is needed as a normative threshold to determine when evidence can be considered strong enough to render a positive decision, such as finding the defendant guilty in a criminal case.[12] In other words, the law of evidence does not merely function to determine right or wrong procedurally but serves as an epistemic mechanism to justify the transition from evidence to valid legal facts. In this regard, judges can be understood to act like “researchers”: every fact established as a “legal fact” must be testable, and its truth accountable. Tom R. Tyler asserts that the court’s decision does not sufficiently rely on positive law or intuition but must be based on empirical evidence that can be rationally evaluated.[13] The argument shows that the demands can only be met if the judge has an adequate epistemological perspective, namely, a deep understanding of the foundations of knowledge within the framework of the philosophy of science. This perspective is necessary to achieve clarity of meaning and ensure that the basic statements of theory and the scientific method can be understood and used meaningfully in the judicial process. Therefore, the next section discusses the role of judges and the relevance of the philosophy of science as a framework for assessing and justifying truth claims in court decisions. 2. Philosophy of Science and the Formation of Truth in Judicial Decisions 2.1. Judicial reasoning in the age of legislation: from statutory texts to epistemic foundations Justice Scalia stated that “we live in an era of legislation, and most law is statutory law”.[14] This statement confirms the dominance of written law in modern judicial practice. However, the application of legal norms does not work automatically; judges still need to construct meaning through legal reasoning. Inductive reasoning is often used here, which means making general conclusions based on specific case patterns.[15] This process is not only technical but also rests on three foundations of knowledge: ontology about the nature of legal norms, epistemology about how legal knowledge is acquired and justified, and axiology about the values that guide interpretation.[16] Thus, the judge’s epistemic ability becomes a fundamental requirement for the formation of correct and accountable decisions. 2.2. Philosophy of science as a framework for establishing truth in proof The philosophy of science explains the epistemological framework of law enforcement. Karl Popper showed that scientific knowledge is not supported by final proof, but rather by its resistance to falsification. A theory is considered robust to the extent that it withstands testing and is open to refutation.[17] This analogy is relevant to legal proof: a judge’s conclusions about facts are never absolute but are the result of eliminating alternatives through applicable standards of proof. Thomas Kuhn later emphasized that the prevailing paradigm influences a community’s assessment of truth. Paradigms shape our understanding of fact, legitimate methods, and acceptable forms of argumentation. When anomalies accumulate, paradigms may disintegrate, resulting in conceptual transformations.[18] In law, a change in the standard of proof or method of interpretation can be understood as a shift in the interpretive paradigm due to case pressure and the dynamics of social values. Imre Lakatos then refined the tension between Popper and Kuhn through the concept of research programs. A program is progressive if it can create new, coherent solutions to problems, but it is degenerative if it only fixes problems with patchwork solutions.[19] This analogy is relevant for understanding the development of legal doctrine: an interpretive theory capable of providing answers to new problems will drive changes in jurisprudence and become the dominant interpretive program. Paul Feyerabend cautioned against the perils of the dominance of a singular methodology. According to him, the dominance of Western science has the potential to silence other forms of knowledge, leading to epistemicide.[20] In a legal context, this view reminds us that truth in the judiciary is not built solely on the text of the law or positivist logic. Evaluating facts and interpreting norms requires space for social experience, morality, and cultural context to make decisions more just and contextual. Michael Polanyi reinforced this notion by asserting the existence of tacit knowledge: aspects of knowledge that cannot be fully formalized, such as professional intuition and institutional habits.[21] Therefore, the judge’s reasoning is not merely a literal application of the text but also a process of synthesizing professional experience and intuition that is not entirely written into the norms. Furthermore, Jürgen Habermas emphasized that the legitimacy of normative claims requires communicative rationality, not merely internal consistency. A decision is normatively valid if it can be justified through uncoerced discourse with the strongest arguments.[22] So, the judge’s decision should be open to rational evaluation by more than one person, not just claims from the text. Wilfrid Sellars deconstructed the presumption that empirical experience exists in a neutral state. It indicates that experience is always understood through certain concepts and rules, so “the given” is an epistemological myth.[23] In law, the term means that facts do not simply exist but are constructed through legal categorization and the values that accompany it. Quine deepened that criticism through epistemological holism. For him, knowledge claims are part of a network of beliefs, and empirical testing does not apply to a single proposition but rather to the coherence of the knowledge system as a whole.[24] In the practice of proof, the strength of an argument does not rely solely on a single piece of evidence but on the inferential coherence of all integrated evidence. To affirm the connection between the epistemological foundations of the philosophy of science and the judge’s reasoning process in proving and interpreting the law, various epistemological theories can be read as a complementary conceptual flow from the realm of theory to judicial practice. Dworkin, Hart, and Habermas place judicial reasoning within a normative-communicative horizon, emphasizing that the legitimacy of a decision requires moral accountability, recognition of the uncertainty of meaning, and openness to intersubjective rational testing. Conversely, Popper, Kuhn, Lakatos, and Quine highlighted the methodological dimensions of truth formation, demonstrating that assessments of facts and norms are never final but are always subject to tests of coherence, potential falsification, and the dynamics of paradigms and belief networks. Feyerabend and Polanyi criticized the inclination towards methodological formalism by advocating for epistemic pluralism and the significance of tacit knowledge in the judicial inference process. Conversely, Sellars, through his critique of “the given”, emphasized that legal facts are never presented neutrally but are always constructed through conceptual categories and legal language. The synthesis of these thoughts confirms that proof and interpretation are not mechanistic processes but rather layered epistemic practices that are tentative, discursive, and value-laden. Thus, the legitimacy of a decision is not sufficiently determined by internal logical consistency or textual adherence to the law but also by inferential coherence, transparency of reasoning, and the judge’s ability to rationally explain why one conclusion is more reasonable than others within the prevailing values and paradigms. This epistemological perspective enriches legal analysis by shifting the focus of evaluation from merely the operative part of a judgment to the quality of judicial reasoning as the basis for the legitimacy of legal truth. 3. Language of Proof and Judicial Truth in Judicial Decisions 3.1. Judicial decisions as linguistic practices and legal reasoning A court decision is a written ruling issued by a court to resolve disputes and determine the rights and obligations of the parties in a case.[25] Peter M. Tiersma’s statement that “our law is a law of words, and words are the lawyer’s primary tool” affirms that law inherently operates through language. Legal norms do not function as neutral, abstract structures but are present, understood, and enforced through linguistic practices.[26] Therefore, language cannot be reduced to a mere technical medium but is an ontological prerequisite for the existence and effectiveness of law. Developments in the study of legal linguistics indicate that language use directly influences how law is interpreted, applied, and legitimized in judicial practice. Thereby, in this case, the quality of legal reasoning in court decisions significantly depends on the accuracy and consistency of the judge’s interpretation of legal language. This view aligns with Arthur Kozak’s theory of juriscentrism, which understands law as a cultural phenomenon that lives within the mental structures and institutional practices of the legal community, rather than as a normative system that exists independently before being interpreted. According to Kozak, law is formed through the internal rationality of jurists, which operates through professional discretion, methods of interpretation, and conceptual frameworks learned institutionally. Legal reality is, therefore, intra-institutional: it exists within the technical language, reasoning patterns, and interpretive practices of legal professionals. Consequently, legal language represents social reality and actively constructs factual experiences into legal categories that are often inaccessible to lay understanding. In this context, the judge’s decision can be perceived as the outcome of a process of interpreting legal significance through systematic legal reasoning. This process demands a theoretical framework of proof that is not only procedurally valid but also rationally accountable. In the law of evidence, at least four classic theories are recognized. Positief Wettelijk limits proof to the evidence determined by law without the normative relevance of the judge’s conviction.[27] Negatief Wettelijk, which is adopted in Indonesia, requires a combination of valid evidence and the judge’s belief as the basis for sentencing.[28] C Conviction Intime places the judge’s inner conviction as the basis for the decision but still requires its formation through a rational evaluation of the evidence.[29] Meanwhile, Conviction Raisonnée demands that such a conviction be accompanied by a rational justification that can be tested and intersubjectively accounted for, particularly through the standard of beyond a reasonable doubt.[30] 3.2. Proof, rationality, and the construction of judicial decisions However, contemporary philosophy of science shows that adherence to proof procedures and recognition of judges’ subjective beliefs are no longer sufficient to support claims of legal truth. The core issue of proof lies in its epistemic dimension, namely “how the inferential steps from evidence to legal facts are constructed, tested, and accounted for”. In this context, structural tension arises between formal procedurality—such as rules of evidence and court procedures—and the demands of epistemic rationality, which require coherent, testable, and open-to-criticism reasoning as a prerequisite for the legitimacy of judicial decisions in a democratic rule of law state. From the perspective of legal epistemology, as previously outlined, the thinking of Dworkin, Hart, Popper, Kuhn, Lakatos, Feyerabend, Polanyi, Habermas, Sellars, and Quine clarifies this tension. Dworkin asserts that legal interpretation always contains a moral dimension. Hart demonstrated that semantic ambiguity in legal rules renders judicial discretion unavoidable. Popper emphasized testability and the possibility of falsification as conditions for the rationality of knowledge. Kuhn and Lakatos explained that knowledge develops through paradigm shifts and the dynamics of research programs. Feyerabend criticized the monopoly of a single method and defended epistemic pluralism. Polanyi highlighted the role of tacit knowledge, which cannot be fully reduced to explicit rules. Habermas links legitimacy to communicative rationality and domination-free deliberation. Sellars and Quine subsequently repudiated the presumption of a “given” foundation of knowledge devoid of a coherent conceptual framework. The epistemological consequence of this overall view is that the standard of proof cannot stop at the formula of “judicial belief” but must be raised to an epistemic condition worthy of being called accountable rational knowledge.[31] Proof, therefore, must be conducted professionally and reliably, avoiding inferential errors and treating evidence proportionally to the severity of the consequences that will be imposed.[32] This epistemic challenge is evident in the proof paradox, which is a situation where the statistical probability is very high but is still not felt to be sufficient as a basis for a judge’s decision.[33] The Blue Bus case, Prisoners, Gatecrasher, Riot, Smith v. Rapid Transit Inc., and cold-hit DNA show that probability alone is insufficient to identify individuals, especially when there is still uncertainty about the accuracy of the statistical model used (meta-uncertainty).[34] The conjunction paradox and the judgment paradox illustrate that the probability of each component of a case may appear sufficient in isolation; however, when aggregated, it fails to satisfy the burden of proof, resulting in a discord between the evaluation of individual components and the overall conclusion during judicial deliberations.[35] The paradox of expertise also highlights the limitations of non-technical judges in assessing the reliability and admissibility of expert testimony.[36] On the other hand, Ross shows that under certain epistemic gap conditions—when factual harm is real but individual perpetrators cannot be identified—the use of statistics can be morally and legally justified to achieve corrective and distributive justice.[37] From the perspective of legal epistemology, the proof paradox teaches that proof cannot be reduced to just two things: the fulfillment of formal evidence or the highest statistical probability. Both are important, but they do not automatically produce adequate intersubjective justification. Fratantonio shows that a purely epistemic approach—which focuses only on knowledge, the risk of error, or the structure of justification—fails to explain why testimony is often accepted while purely statistical evidence is rejected, even though the statistics may be more accurate.[38] This preference is based on moral and institutional ideas about how the legal system should treat people with respect, not just as numbers in a probability distribution. Therefore, the proof paradox is not only an epistemic problem but also a moral-institutional problem that touches upon the fundamental design and values of the justice system. If this overall perspective is drawn into the law of evidence, then ideal proof must be understood as an “epistemic practice” subject to the demands of rationality, transparency, and testability. In determining what should be believed, epistemic reasons have an independent and normative status that cannot be overridden by practical reasons except indirectly, namely, through practical reasons for believing correctly according to epistemic standards.[39] Consequently, proof can no longer be perceived as a procedural instrument for formally validating evidence; instead, it should be regarded as an intellectual endeavor for substantiating factual assertions through a publicly accountable framework of reasoning. Within this framework, the reasoning and inferences contained in the judge’s decision-making considerations must be logically, explicitly, and systematically structured so that they can be reconstructed step by step by other parties. Proof reasoning is required to be publicly accessible, open to intersubjective verification, and—if necessary—ready to be corrected or refuted through stronger arguments or counter-evidence. This principle is reflected, among other things, in the case of Compulife Software Inc. v. Newman (2020), where the court affirmed that the fact that the data came from a publicly accessible source does not automatically make the method of obtaining it lawful. Manual access within human capabilities is qualitatively different from the use of automated programs capable of collecting data in quantities practically impossible for humans, thus raising its own normative issues. A similar approach is also evident in the case of DHI Group, Inc. v. Kent (2019), when the court refused to grant summary judgment in a trade secret dispute arising from the unauthorized taking of a database, as well as in United States v. Nosal (2016), which asserts that trade secrets can be a compilation of data from public, closed, or a combination of both sources.[40] In this case, the compilation’s overall confidentiality, not the origin of each data element, determines it. Thus, the credibility of the decision no longer rests solely on procedural compliance but on the quality of the rational justification supporting the factual conclusions reached. This framework demands the adoption of a new paradigm in proof theory, which can be called Epistemic-Justificatory Proof Theory. This paradigm is based on the idea that the validity of a decision is not determined solely by the fulfillment of formal evidentiary requirements, but rather by the quality of the reasoning used to justify the factual conclusions. Proof reasoning must meet the standards of epistemic justification, meaning it must be constructed rationally, coherently, and intersubjectively acceptable to those using the same standards of reasoning. In this perspective, the legitimacy of proof undergoes a fundamental shift: from formal certainty toward epistemic testability, from reliance on institutional authority toward argumentative strength open to scrutiny, and from procedural legality toward rational legitimacy that respects the values of truth and epistemic justice. So, a valid decision is not only one that follows the law, but also one that can be justified epistemologically and intellectually in front of the public of legal reasoning. The urgency of the epistemic-justificatory paradigm is becoming increasingly prominent as the complexity of evidence in modern legal practice grows, including scientific, statistical, algorithmic, and data analysis evidence. Open science practices demonstrate potential benefits for various actors in the legal system, including increased accuracy in assessing the strength of scientific evidence and improved trust in expert testimony.[41] A 2019 Pew Research Center survey showed that 54% of respondents trust scientific findings more when the data is transparently open. In this context, purely statistical evidence (PSE) is understood as evidence that provides support solely through probability figures, without the support of other individual evidence such as witnesses, visual recordings, motive, or confessions. The classic example is the Prisoners and Blue Bus case. Ross emphasized that DNA profiling is essentially statistical evidence as well, because at trial, experts typically present the odds of a random match, for example, “one in a billion”. However, the law does not automatically prohibit statistical evidence; the main issue is not admissibility, but whether the evidence is sufficient to meet the burden and standard of proof according to the objectives of the justice system. Therefore, statistical evidence can be considered usable under certain conditions, such as DNA evidence with a tiny error rate, but not always, as in the case of Prisoners.[42] The advent of algorithms and the utilization of artificial intelligence have significantly transformed the domain of evidence. Algorithms are understood as “decision-making machines” that can assist various processes, but their acceptance heavily depends on the user’s level of understanding and risk perception, particularly regarding bias and privacy.[43] At the same time, the theory of evidence-based inference using probabilistic reasoning shows that Dempster’s rule is a direct extension of Bayes’ rule and still operates on basic probabilities, not just degrees of subjective belief. Criticism of Dempster’s rule often arises from the misuse of posterior probabilities or double-counting priors, rather than from inherent weaknesses in its probabilistic rationality.[44] This reinforces the view that evidence-based reasoning can still be probabilistically justified, even under conditions of uncertainty and imperfect data. The intricacy of contemporary proof necessitates a thorough assessment of reliability, validity, and possible inferential inaccuracies. Without an adequate epistemological framework, the process of proof risks falling into epistemic overreach, which is the tendency to uncritically accept factual conclusions solely because they are supported by specific technical methods or scientific authority, without an adequate understanding of the methodological assumptions, empirical limitations, and normative context of their use. In such conditions, judicial rationality has the potential to be reduced to technocratic compliance, rather than the practice of intellectually and ethically responsible reasoning. In the epistemic-justificatory paradigm, the legitimacy of decisions no longer primarily rests on the institutional authority of the decision-makers but rather on the quality of the epistemic reasoning that establishes inferential relationships between evidence, facts, and norms. An epistemically valid decision is required to exhibit epistemic transparency, which means an explicit explanation of the inference steps, the basis for choosing the reasoning model, the evaluation of error risks, and the rational reasons for accepting one inference and rejecting others. This epistemic transparency not only strengthens public accountability but also enables institutional learning within the judicial system, preventing judicial errors from being structurally reproduced. Furthermore, Epistemic-Justificatory Proof Theory challenges the conventional separation between formal proof and the normative dimension. Because proof always takes place within a specific epistemic horizon, it is never completely value-free. Evidence, facts, and norms are constructed through a framework of knowledge that contains both methodological assumptions and ethical choices about how the risk of error is allocated and who bears the consequences. Therefore, epistemically valid proof must be open to rational evaluation that considers epistemic justice, the proportionality of the risk of error, and the fairness of the distribution of the burden of proof, particularly for parties in structurally vulnerable positions. This framework gains a distinctive normative relevance within the context of Pancasila as the philosophical foundation of Indonesia’s rule of law.[45] The principle of fair and humane treatment affirms that individuals should not be reduced to mere objects of proof or statistical variables,[46] but must be treated as dignified subjects entitled to understandable and accountable judicial reasons.[47] Meanwhile, the principle of social justice demands that the distribution of the risk of evidentiary error be done proportionally,[48] so that epistemic uncertainty is not unfairly placed on those who are socially and institutionally in a weaker position. Thus, epistemic justification in proof not only serves as a methodological requirement but also as a concrete embodiment of the basic values of Pancasila in modern judicial practice. Consequently, the reform of the theory and practice of proof cannot be limited to procedural aspects alone but must target the epistemic structures that underpin judicial and administrative practices. The reforms include developing reflective standards of proof, improving the epistemic literacy of legal decision-makers, and standardizing reasoning techniques and judgment writing that emphasize public justification. On a theoretical level, this paradigm opens up space for interdisciplinary dialog between law, epistemology, philosophy of science, cognitive psychology, and argumentative linguistics. On a practical level, it provides an evaluative framework for assessing whether a decision truly meets the demands of rational legitimacy in a pluralistic and value-based democratic society. Thus, Epistemic-Justificatory Proof Theory offers a direction for conceptual transformation in how law understands and practices proof. The shift from proof as a procedural ritual toward proof as an epistemic practice allows legal systems to produce decisions that are more transparent, rational, and intellectually accountable. Within this framework, judicial reasoning is no longer understood as a closed technical activity but rather as a public practice that connects knowledge, power, and justice into a single normative unity that is open to scrutiny and accountability—in line with the demands of the rule of law, human rights protection, and the values of substantive justice in contemporary legal societies. Conclusion The judge’s decision can no longer be understood as a “legitimate” procedural outcome simply because it meets the rules of evidence, but rather as an epistemic act that establishes legal truth and simultaneously bears the burden of legitimizing the use of state coercion. The research findings indicate that the complexity of contemporary evidence—scientific, statistical, and algorithmic—exacerbates the risk of bias, inferential errors, and the reduction of judicial deliberation to a formality or subjective belief. The main finding of this article is the need to assess the evidence based on the quality of its inferential transitions: how evidence is sorted, weighed, connected, and used as the basis for legal facts through coherent, explicit, and intersubjectively testable reasoning. The scientific novelty of this research lies in proposing Epistemic-Justificatory Proof Theory, an evaluative framework that shifts the focus of legitimacy from procedural compliance toward transparency of reasoning, rational coherence, and public testability of decision-making considerations. The added value of this approach is that it provides a conceptual standard for auditing the quality of evidentiary reasoning, including when courts are dealing with purely statistical evidence, expert testimony, or AI-based systems. Actionable recommendations include standardizing judgment writing techniques that display the steps of inference, improving epistemic literacy for judges to assess the reliability and validity of scientific/algorithmic evidence, and strengthening procedural safeguards that demand clear reasoning when technology is used in law enforcement processes. Looking ahead, further research could develop operational indicators for “inferential transparency”, test their application to concrete rulings, and formulate standard proof designs that are more adaptable to data-driven evidence without sacrificing the protection of human rights and the dignity of legal subjects. References Aldyan, A. (2023). 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Journal of Control and Decision. <https://doi.org/10.1080/23307706.2025.2495805>; Yasir, M., Gunarto, G., Bawono, B. T. (2024). Legal reconstruction of suspect investigation based on Pancasila justice values. Scholars International Journal of Law, Crime and Justice, 7(01). <https://doi.org/10.36348/sijlcj.2024.v07i01.002>. Footnotes [1] Hartanto, D., Hidayat, N. (2021). Application of reverse evidence for the crime of money laundering based on the origin of narcotics. Croatian International Relations Review, 27(88), pp. 14–33. <https://doi.org/10.2478/CIRR-2021-0009>. [2] Morrison, G. S. (2022). Advancing a paradigm shift in evaluation of forensic evidence: The rise of forensic data science. Forensic Science International: Synergy, 4, 100270. <https://doi.org/10.1016/j.fsisyn.2022.100270>. [3] Curley, L. J., Munro, J., Dror, I. E. (2022). Cognitive and human factors in legal layperson decision making: Sources of bias in juror decision making. Medicine, Science and the Law, 62(3), pp. 197–206. <https://doi.org/10.1177/00258024221080655>. [4] Cui, J., Shen, X., Wen, S. (2023). A survey on legal judgment prediction: Datasets, metrics, models and challenges. IEEE Access, 11, pp. 102050–102071. <https://doi.org/10.1109/ACCESS.2023.3317083>. [5] Sachoulidou, A. (2023). Going beyond the ‘common suspects’: To be presumed innocent in the era of algorithms, big data and artificial intelligence. Artificial Intelligence and Law, pp. 1–54. <https://doi.org/10.1007/s10506-023-09347-w>. [6] Roberts, P. (2025). Standards and methods of proof: An English perspective on Della Torre’s comparative legal history. Quaestio Facti, no. 9, pp. 225–239. <https://doi.org/10.33115/udg_bib/qf.i9.23151>. [7] Chukwuma, K. H. (2025). Evidencing terrorism: Juridical truth-making in terrorism trials. European Journal of International Security, pp. 1–18. <https://doi.org/10.1017/eis.2024.60>. [8] Alpes, M. J., Baranowska, G. (2025). The politics of legal facts: The erasure of pushback evidence from the European Court of Human Rights. Law and Social Inquiry, 50(1), pp. 225–248. <https://doi.org/10.1017/lsi.2024.27>. [9] Lefkowitz, D. (2024). A new philosophy for international legal skepticism? International Theory, 16(2), pp. 237–268. <https://doi.org/10.1017/S1752971924000010>. [10] Dziadzio, A. (2021). The academic portrait of the creator of the pure theory of law: Several facts from Thomas Olechowski’s book entitled Hans Kelsen. Biographie eines Rechtswissenschaftlers. Tübingen: Mohr Siebeck, 2020 (1027 pp.). Krakowskie Studia z Historii Państwa i Prawa, 14(3), pp. 383–395. <https://doi.org/10.4467/20844131ks.21.028.14093>. [11] Riesthuis, T. (2023). The legitimacy of judicial decision-making: Towards empirical scrutiny of theories of adjudication. Utrecht Law Review, 19(2), pp. 75–76. <https://doi.org/10.36633/ulr.877>. [12] Ross, L. (2024). The philosophy of legal proof. Cambridge University Press. [13] Liu, W., Li, X., Li, G. (2025). The contributions of philosophy of science in science education research: A literature review. Science and Education, 34(3), pp. 1203–1222. <https://doi.org/10.1007/s11191-023-00485-w>. [14] Molnár, S. J. (2024). US constitution and the notion of family: The risks of the Supreme Court’s judicial activism through family and privacy cases. Pázmány Law Review, 11(1), pp. 81–99. <https://doi.org/10.55019/plr.2024.1.81-99>. [15] Garbuio, M. Lin, N. (2021). Innovative idea generation in problem finding: Abductive reasoning, cognitive impediments, and the promise of artificial intelligence. Journal of Product Innovation Management, 38(6), pp. 701–725. <https://doi.org/10.1111/jpim.12602>. [16] Smith, M., McCulloch, T., Daly, M. (2025). Being, knowing and doing: Aligning ontology, epistemology, and axiology to develop an account of social work as practice. Social Work Education, 44(3), pp. 522–537. <https://doi.org/10.1080/02615479.2024.2330598>. [17] Archer, R. (2024). Retiring Popper: Critical realism, falsificationism, and the crisis of replication. Theory and Psychology, 34(5), pp. 561–584. <https://doi.org/10.1177/09593543241250079>. [18] Sciortino, L. (2021). The emergence of objectivity: Fleck, Foucault, Kuhn and Hacking. Studies in History and Philosophy of Science, 88, pp. 128–137. <https://doi.org/10.1016/j.shpsa.2021.06.005>. [19] Özdemir, N. Türkben, Y. (2022). The problem of objectivity in science in Imre Lakatos. Türkiye İlahiyat Araştırmaları Dergisi, 6(1), pp. 247–264. <https://doi.org/10.32711/tiad.1070222>. [20] Muller, S. M. (2024). Feyerabend and decolonisation. Epistemology and Philosophy of Science, 61(3). <https://doi.org/10.5840/eps202461349>. [21] Preston, J. (2022). Gestalt epistemology: From Gestalt psychology to phenomenology in the work of Michael Polanyi. Philosophia Scientiae, 26(3), pp. 233–254. <https://doi.org/10.4000/philosophiascientiae.3668>. [22] Duvenhage, P. N. J. (2024). Reflections on Habermas’s discourse ethics. Verbum et Ecclesia, 45(1), pp. 1–9. <https://doi.org/10.4102/ve.v45i1>. [23] O’Shea, J. R. (2021). What is the myth of the given? Synthese, 199(3–4), pp. 10543–10567. <https://doi.org/10.1007/s11229-021-03258-6>. [24] Parrini, P. (2021). Quine on analyticity and holism: A critical appraisal in dialogue with Sandro Nannini. Philosophical Inquiries, 9(1), pp. 95–112. <https://doi.org/10.4454/philinq.v9i1.359>. [25] Su, Y., Liu, K., Cheung, A. K. F. (2023). Epistemic modality in translated and non-translated English court judgments of Hong Kong: A corpus-based study. Journal of Specialised Translation, no. 40, pp. 56–80. <https://doi.org/10.26034/cm.jostrans.2023.525>. [26] Glogar, O. (2023). The concept of legal language: What makes legal language ‘legal’? International Journal for the Semiotics of Law, 36(3), pp. 1081–1107. <https://doi.org/10.1007/s11196-023-10010-5>. [27] Pangestu, K., Suyanto, H., Agustanti, R. D., (2021). Application of circumstantial evidence in criminal laws in Indonesia. Jurnal Hukum Novelty, 12(1), pp. 54–66. <https://doi.org/10.26555/novelty.v12i01.a16996>. [28] Giri Santosa, D. G., Ibnu Kamali, K. M. (2022). Acquisition and presentation of digital evidence in criminal trial in Indonesia. Jurnal Hukum dan Peradilan, 11(2), pp. 195–218. <https://doi.org/10.25216/jhp.11.2.2022.195-218>. [29] Tuzet, G. (2021). Evidence assessment and standards of proof: A messy issue. Quaestio Facti, no. 2, pp. 87–113. <https://doi.org/10.33115/udg_bib/qf.i2.22480>. [30] Ambos, K. (2023). ‘Intime conviction’ in Germany: Conceptual foundations, historical development and current meaning. Quaestio Facti. Revista Internacional Sobre Razonamiento Probatorio, 4(1), pp. 167–189. <https://doi.org/10.33115/udg_bib/qf.i1.22839>. [31] Summers, S. J. (2023). The epistemic ambitions of the criminal trial: Truth, proof, and rights. Quaestio Facti. Revista Internacional Sobre Razonamiento Probatorio, 4(1), pp. 249–272. <https://doi.org/10.33115/udg_bib/qf.i1.22809>. [32] Guerrero, A. (2021). The interested expert problem and the epistemology of juries. Episteme, 18(3), pp. 428–452. <https://doi.org/10.1017/epi.2021.36>. [33] Spottswood, M. (2021). Philosophical foundations of the law of evidence: Chapter 7 – Paradoxes of proof. Oxford University Press. [34] Steele, K., Colyvan, M. (2023). Meta-uncertainty and the proof paradoxes. Philosophical Studies, 180(7). <https://doi.org/10.1007/s11098-023-01951-5>. [35] Pardo, M. S. (2019). The paradoxes of legal proof: A critical guide. Boston University Law Review, 99(1). [36] Martini, C. (2015). The paradox of proof and scientific expertise. Humana.Mente Journal of Philosophical Studies, 8(28), pp. 1–16. [37] Ross, L. (2021). Justice in epistemic gaps: The ‘proof paradox’ revisited. Nous-Supplement: Philosophical Issues, 31(1). <https://doi.org/10.1111/phis.12193>. [38] Fratantonio, G. (2021). Evidence, risk, and proof paradoxes: Pessimism about the epistemic project. International Journal of Evidence and Proof, 25(4). <https://doi.org/10.1177/13657127211035831>. [39] Kauppinen, A. (2023). The epistemic vs. the practical. In Oxford Studies in Metaethics (Vol. 18, pp. 137–162). <https://doi.org/10.1093/oso/9780198884699.003.0007>. [40] Sobel, B. L. W. (2021). A new common law of web scraping. Lewis & Clark Law Review, 25(1), pp. 147–207. [41] McAuliff, B. D. et al. (2023). Psychology and law, meet open science. In The Oxford Handbook of Psychology and Law (pp. 71–96). <https://doi.org/10.1093/oxfordhb/9780197649138.013.5>. [42] Ross, L. (2021). Rehabilitating statistical evidence. Philosophy and Phenomenological Research, 102(1), pp. 3–23. <https://doi.org/10.1111/phpr.12622>. [43] Horowitz, M. C., Kahn, L. (2021). What influences attitudes about artificial intelligence adoption: Evidence from U.S. local officials. PLoS ONE, 16(10), pp. 1–20. <https://doi.org/10.1371/journal.pone.0257732>. [44] Xu, D. L., Yang, J. B., Wang, Y. M. (2025). Make evidence theory probabilistic again. Journal of Control and Decision, pp. 1–16. <https://doi.org/10.1080/23307706.2025.2495805>. [45] Susilo, E. (2025). Natural justice, procedural justice, and the judge’s role in the Pancasila-based rule of law. Yurispruden: Jurnal Fakultas Hukum Universitas Islam Malang, 8(2), pp. 177–196. <https://doi.org/10.33474/yur.v8i2.23835>. [46] Aldyan, A. (2023). The Indonesian state law system is based on the philosophy of Pancasila and constitution. Res Judicata, 6(1). <https://doi.org/10.29406/rj.v6i1.4939>. [47] Yasir, M., Gunarto, G., Bawono, B. T. (2024). Legal reconstruction of suspect investigation based on Pancasila justice values. Scholars International Journal of Law, Crime and Justice, 7(01). <https://doi.org/10.36348/sijlcj.2024.v07i01.002>. [48] Sumadi, T., Casmana, A. R., Maiwan, M. (2024). The implementation of Pancasila values to early children through traditional ceremonies in Banceuy community. European Journal of Theoretical and Applied Sciences, 2(1). <https://doi.org/10.59324/ejtas.2024.2(1).36>.
Judicial decisions, legal proof, epistemic justification, judicial reasoning, rule of law.
Artificial Intelligence in Judicial Decision-Making: Can a Robot Replace a Judge?
This article examines the concept of the “robot judge” and evaluates the legal, ethical, and human rights implications of using artificial intelligence in judicial decision-making. The study explores whether AI can partially or fully perform judicial functions and assesses the extent to which algorithmic tools may be integrated into courts without undermining the fundamental principles of justice. The article is based on doctrinal legal analysis, comparative review, and a human-rights-oriented approach. It distinguishes between administrative automation, decision-support systems, and fully automated adjudication, arguing that these forms of technological involvement raise different levels of legal concern. The paper demonstrates that AI may offer important benefits for judicial systems, including greater efficiency, faster case processing, improved consistency, and enhanced access to justice, especially in repetitive or low-value disputes. At the same time, the article identifies serious risks associated with algorithmic bias, lack of transparency, limited explainability, accountability gaps, and threats to the right to a fair trial. Attention is given to the relationship between AI and judicial discretion, emphasizing that legal reasoning is not a purely mechanical exercise but a process involving interpretation, contextual evaluation, proportionality, and moral judgment. The article concludes that AI should not replace human judges in the exercise of final judicial authority. A legally acceptable model is the use of AI as a supportive instrument under meaningful human supervision, clear regulatory safeguards, transparency requirements, and effective mechanisms of review. Such an approach best reconciles technological innovation with the rule of law and the protection of human dignity. Keywords: Algorithmic bias, judicial discretion, fair trial. Introduction The rapid advancement of digital technologies and the expanding use of artificial intelligence (AI) across public and private sectors have fundamentally reshaped contemporary legal and institutional frameworks. This transformation is particularly visible in the field of justice, where increasing demands for efficiency, speed, consistency, and accessibility have encouraged the adoption of data-driven and algorithmic tools. The use of AI in judicial systems is no longer a speculative or purely theoretical matter. It is already associated with functions such as case allocation, legal research, document analysis, risk assessment, and other forms of decision support within courts. Against this background, the concept of the “robot judge” has emerged as one of the most provocative and controversial issues in modern legal scholarship. It raises a central question: can artificial intelligence partially or fully perform the functions traditionally exercised by a human judge? The importance of this question lies not only in technological progress but also in the unique constitutional and social role of the judiciary. The administration of justice is among the most sensitive functions of the state, as it is directly connected with the rule of law, legal certainty, public confidence in courts, and the effective protection of human rights. Judicial decision-making cannot be reduced to the mechanical processing of information. It involves the interpretation of legal norms, the contextual assessment of facts, the balancing of competing principles and interests, the exercise of discretion, and the articulation of reasons capable of justifying the outcome. In this sense, the debate on the “robot judge” concerns far more than the possibility of increasing institutional efficiency. It concerns the very nature of adjudication and whether algorithmic systems can be reconciled with the normative, moral, and human dimensions of justice. The term “robot judge” itself is not univocal. It may refer to a fully automated system that independently renders judicial decisions; it may describe algorithmic systems that support judges in analysis and reasoning; or it may function as a broader metaphor for the increasing automation of judicial processes. This conceptual ambiguity makes careful legal analysis particularly necessary. It is essential to distinguish between administrative automation, algorithmic decision-support, and autonomous adjudication, as each of these models raises different legal, ethical, and institutional concerns. The central issue is therefore not simply whether technology can be introduced into the judicial sphere, but under what conditions such use remains compatible with the fundamental principles of justice. This article aims to examine the concept of the “robot judge” and to assess the extent to which AI may be integrated into judicial decision-making without undermining the foundational values of the legal order. More specifically, the article seeks, first, to identify the potential advantages of AI in the administration of justice and, second, to determine the legal and ethical limits that must constrain its use. The article also addresses whether AI may realistically be viewed as a substitute for the human judge or whether it should instead be understood solely as a supportive tool operating under meaningful human control. The research is guided by several key questions. Can artificial intelligence partially or fully perform judicial functions? What legal, ethical, and human rights risks accompany the use of AI in judicial decision-making? How does the increasing reliance on algorithmic systems affect judicial discretion, independence, and the requirement that decisions be reasoned and reviewable? Finally, what model of AI integration can be regarded as normatively acceptable in contemporary justice systems? These questions are of particular importance because the introduction of AI into adjudication cannot be evaluated solely in terms of efficiency or innovation; it must also be assessed against the standards of fair trial, accountability, transparency, equality, and human dignity. Methodologically, the article is based on doctrinal legal analysis, comparative legal research, and a human-rights-oriented approach. It examines the theoretical foundations of artificial intelligence and the “robot judge”, analyzes current forms of AI use in judicial systems, and considers relevant comparative practices. At the same time, it evaluates the principal risks associated with algorithmic bias, opacity, limited explainability, accountability deficits, and possible interference with fair trial guarantees. Attention is devoted to judicial discretion, since legal reasoning is not merely a formal or technical exercise but also a context-sensitive and value-laden process that cannot easily be translated into algorithmic logic. The central argument of the article is that artificial intelligence may serve as a valuable auxiliary instrument in the administration of justice, but it should not replace the human judge as the final bearer of judicial authority. While AI may improve efficiency, consistency, and the management of judicial workloads, adjudication remains a fundamentally human responsibility. It requires interpretation, proportionality assessment, moral judgment, responsibility, and the capacity to provide reasons in a manner that is intelligible and legitimate for the parties and for society. Accordingly, the “robot judge” should be approached not as an inevitable endpoint of technological development, but as a legal and ethical challenge that demands careful normative boundaries. The structure of the article reflects this objective. It first outlines the theoretical foundations of artificial intelligence and the concept of the “robot judge”. It then examines existing forms of AI use in judicial practice and the potential advantages associated with such technologies. The following sections analyze the principal legal, ethical, and human rights risks, with separate attention devoted to the relationship between AI and judicial discretion. Finally, the article considers possible future models of AI integration in justice and proposes recommendations for legal policy. In doing so, it argues that technological innovation in the judicial sphere is acceptable only where it remains subject to human oversight, clear legal safeguards, and rights-based limitations. Methodology This article employs a doctrinal legal method as its primary research approach, supplemented by a comparative legal analysis and a human-rights-oriented analytical framework. The doctrinal method is used to examine the concept of the “robot judge” through the interpretation of legal principles, scholarly literature, and normative standards relevant to judicial decision-making, fairness, accountability, and the rule of law. This method was selected because the subject of the study is fundamentally normative in nature and requires an assessment of whether the use of artificial intelligence in adjudication is compatible with the core principles of justice. In addition, the article applies a comparative approach to review how different jurisdictions and legal systems address the use of artificial intelligence in courts. Comparative analysis makes it possible to identify common tendencies, regulatory differences, and emerging models of technological integration in judicial practice. This method was chosen because the issue of AI in justice is developing unevenly across countries, and a comparative perspective helps to evaluate both practical experiences and normative responses. The article also adopts a human-rights-based analytical perspective, particularly in relation to the right to a fair trial, judicial independence, equality, transparency, and data protection. This approach is necessary because the use of AI in judicial decision-making cannot be assessed solely from the standpoint of efficiency; it must also be examined considering fundamental rights and procedural guarantees. The combination of these methods supports the aims of the research by enabling a structured evaluation of the legal nature, practical implications, and normative limits of artificial intelligence in the administration of justice. Theoretical Foundations of Artificial Intelligence and the Concept of the “Robot Judge” There is still no single and universally accepted definition of artificial intelligence; however, in contemporary scholarly and institutional discourse, AI is generally understood as a machine-based system capable of generating predictions, recommendations, content, or decisions on the basis of input data in ways that affect real or virtual environments.[1] This understanding makes clear that AI is not a single technology, but rather an umbrella concept that encompasses different methods, models, and functional capacities whose common feature is the ability to process information in a manner that, at least partially, resembles human intellectual activity. For this reason, any discussion of AI in the judicial sphere must be based not only on a technical understanding of the technology but also on a functional analysis of the role that the system plays in the decision-making process and the extent of its autonomy. This understanding makes clear that AI is not a single technology, but rather an umbrella concept that encompasses different methods, models, and functional capacities whose common feature is the ability to process information in a manner that, at least partially, resembles human intellectual activity. For this reason, any discussion of AI in the judicial sphere must be based not only on a technical understanding of the technology but also on a functional analysis of the role that the system plays in the decision-making process and the extent of its autonomy.[2] One of the most important branches of artificial intelligence is machine learning, which refers to the development and use of computer systems that adapt and learn from data with the goal of improving accuracy.[3] Unlike traditional programming, where a machine follows a fixed set of explicitly predefined instructions, machine learning systems detect patterns in data and build models that allow them to generate predictions or assessments. At the current stage of technological development, generative AI has also become especially significant. According to NIST, generative AI refers to a class of AI models that emulate the structure and characteristics of input data in order to generate synthetic content, including text, images, audio, video, and other forms of digital material. This category is particularly relevant for judicial settings, because it is capable not only of classification or prediction, but also of simulating legal reasoning, drafting, and justification.[4] At the same time, it is essential to distinguish between automation and intelligent decision support. Automation usually concerns the execution of predefined, repetitive, and technical tasks, such as the registration of cases, document sorting, or the management of procedural deadlines. Intelligent decision support, by contrast, is a more complex category: the system processes data, identifies patterns, produces recommendations, and may influence the reasoning of the decision-maker. The key difference lies in the fact that, in the first case, technology replaces only an administrative or procedural action, whereas in the second case, it touches upon the substantive core of legal reasoning itself. For that reason, when AI is introduced into judicial systems, the crucial question is whether the system is merely a technical tool or whether it affects the normative content of adjudication.[5] The term “robot judge” is not univocal, and its meaning depends on the degree of technological involvement that a particular author, policymaker, or legal system has in mind. In a broad sense, it may refer to any model in which artificial intelligence participates in judicial activity. In a narrower sense, it denotes a system that renders a legally significant decision with little or no human intervention. In legal scholarship, the expression “robot judge” is often used as an analytical concept through which one may assess both the feasibility and the legitimacy of transferring judicial functions to technology.[6] Thus, the term is more than a technical description; it reflects a deeper debate about the relationship between human judgment and algorithmic governance. From a theoretical perspective, several models of the “robot judge” may be identified. The first is fully automated adjudication, in which a system independently processes facts, links them to relevant legal norms, and produces a final decision. This is the most radical model, because it effectively transfers the judicial function to technology. The second model is partially automated decision support, where AI analyses case materials, offers risk assessments, predicts possible outcomes, or drafts preliminary reasoning, while the final decision still remains in the hands of a human judge. The third, more moderate, model is AI as an auxiliary judicial tool, where technology is used for legal research, the identification of precedents, document organization, or administrative support, without directly exercising normative judgment.[7] Much of the confusion surrounding the notion of the “robot judge” stems from a failure to distinguish clearly among these different levels of technological involvement. Contemporary European approaches have been particularly clear in stressing that AI in judicial systems should remain a tool “under user control” and should not become a prescriptive mechanism that effectively takes the place of the judge.[8] This position is grounded in the recognition that adjudication cannot be reduced to a purely computational exercise. For this reason, the most realistic contemporary understanding of the “robot judge” does not involve the complete replacement of the human judge, but rather a hybrid model in which AI performs analytical and organizational functions, while legal authority and responsibility remain with the human decision-maker. The role of the human judge extends well beyond the mechanical application of legal rules to facts. Judicial decision-making requires not only the identification of relevant norms, but also their interpretation, the balancing of competing principles, the individualized assessment of circumstances, the application of proportionality, and the provision of reasons in a manner that is intelligible and legitimate to the parties and to society.[9] It is precisely here that a fundamental distinction emerges between human reasoning and algorithmic calculation. Algorithms may be highly effective at identifying patterns and correlations, yet legal judgment often depends on normative evaluation, contextual sensitivity, and responsibility in ways that exceed statistical inference. A central element of adjudication is judicial discretion. Discretion does not mean arbitrariness; rather, it refers to the legally bounded capacity to choose among permissible alternatives in light of the specific circumstances of the case. Judges therefore evaluate elements that are difficult to fully formalize: the conduct of the parties, the singularity of factual situations, the proportionality of consequences, broader social implications, and, at times, moral intuition. By contrast, algorithmic systems operate within the parameters of the data they are given, the variables selected by designers, and the structure of the model itself. As a result, their ability to appreciate context in a deep and normatively meaningful way remains limited.[10] For this reason, scholarship increasingly emphasizes that algorithmic systems may assist judges, but they cannot easily replace the discretionary and responsibility-laden role of the human judge.[11] Moreover, the human judge acts not only as an interpreter of rules, but also as a public authority whose decision must be perceived as fair. In this sense, the legitimacy of adjudication depends not only on the outcome, but also on the process: the opportunity to be heard, the careful consideration of individual circumstances, the reasoning provided, and the perception that the case has been examined by a human decision-maker rather than merely processed by a computational system. Empirical research further suggests that attitudes toward algorithmic involvement in courts vary significantly depending on the stage at which automation is introduced: automation is generally perceived as more acceptable in information acquisition and analytical support than in the final stages of decision selection or implementation.[12] In this respect, the human judge and the algorithmic system should not be understood as fully interchangeable actors. A more accurate view is that they are fundamentally different in nature and function: the latter may support the former, but cannot fully substitute for it.[13] Accordingly, at the theoretical level, the concept of the “robot judge” demonstrates that the problem is not limited to the speed or technical accuracy of artificial intelligence. The deeper issue is whether core elements of adjudication—discretion, the perception of justice, moral judgment, contextual reasoning, and accountable justification—can truly be translated into algorithmic form. The answer to this question ultimately determines whether AI in the judicial sphere should remain a supportive instrument or whether it could one day challenge the human judge as the author of legal decisions.[14] Existing Forms of the Use of Artificial Intelligence in the Administration of Justice The current use of artificial intelligence in judicial systems is neither purely hypothetical nor limited to futuristic experimentation. Contemporary practice shows that AI is already being integrated into courts through a wide variety of tools designed to improve efficiency, accessibility, and the management of growing caseloads. According to the first annual report of the CEPEJ Resource Centre on Cyberjustice and Artificial Intelligence, by the end of 2024, at least 125 cyberjustice tools had been identified, with systems based especially on machine learning and natural language processing becoming increasingly important in courts.[15] These tools are used not only for administrative purposes, but also for tasks that come closer to legal reasoning, such as analyzing case materials, extracting relevant information, generating summaries, identifying legal issues, and supporting the preparation of judicial work.[16] At the same time, the same report emphasizes that no fully autonomous “robot justice” currently exists in actual court practice and that the most advanced systems remain supportive rather than substitutive.[17] In practical terms, one of the most widespread areas of AI use concerns case management and document processing. Courts and judicial administrations increasingly employ AI-enabled systems to classify incoming materials,[18] extract metadata, anonymize judgments, transcribe hearings, translate texts, and summarize large volumes of legal documents.[19] The OECD has documented, for example, that Spain has developed in-house NLP and generative AI tools to classify, analyze, summarize, and anonymize court-related texts, while also supporting document retrieval and workflow management within the justice system.[20] Such systems do not decide cases themselves, but they substantially reduce the time required for repetitive and information-intensive tasks. AI is also being used in legal research, precedent retrieval, and the identification of relevant norms or comparable decisions. In this respect, modern judicial AI often operates as an advanced research and knowledge-management tool, enabling judges and court staff to navigate complex legal material more quickly and systematically.[21] A more controversial field of application concerns risk assessment instruments and sentencing prediction models, especially in criminal justice. In the United States, algorithmic tools such as COMPAS have been used to support decisions relating to bail, sentencing, and parole by estimating the likelihood of recidivism.[22] The well-known case of State v. Loomis illustrates this development: the Wisconsin Supreme Court accepted the use of COMPAS as a sentencing support tool, but made clear that such an assessment could not be the determinative factor and had to be treated with caution.[23] More broadly, these tools do not generate a sentence in a legally autonomous sense; rather, they offer probabilistic assessments meant to inform judicial discretion. Even where predictive systems are used, they remain embedded within a human decision-making process, precisely because criminal adjudication involves constitutional guarantees, individualized assessment, and responsibility that cannot be delegated entirely to an opaque model.[24] The United States offers one of the clearest examples of selective and function-specific use of AI in judicial settings. Algorithmic tools have been most visibly used in criminal justice, especially for recidivism and risk assessment, while more recent developments concern generative AI in research, drafting, and court administration.[25] At the institutional level, the U.S. judiciary has taken a cautious but practical approach. The Federal Judicial Center has issued guidance for federal judges explaining how AI may be used in the judicial process and what legal questions arise from its use.[26] In parallel, the National Center for State Courts reports that more than 50 courts are actively testing AI tools for legal research, document review, and case management, while also urging courts to begin with low-risk tasks and to establish governance safeguards.[27] Chief Justice John Roberts likewise recognized in his 2023 Year-End Report that many AI applications can assist courts in achieving “just, speedy, and inexpensive” resolutions, while stressing that judicial work still includes quintessentially human functions that AI can inform but not perform on its own.[28] China represents a broader and more ambitious model of judicial digitalization. The Chinese “smart court” reform integrates big data, algorithmic tools, online proceedings, and AI-assisted functions into a wider platform of judicial informatization.[29] Scholarly analyses show that Chinese courts use such systems for case management, online filing, evidence exchange, document service, workflow coordination, and analytical support for judges.[30] More recent official materials from the Supreme People’s Court describe AI-generated platforms designed to help judges search legal materials, compare electronic files, extract key points, and reduce the burden of handling rising numbers of cases.[31] Although this model goes further than most Western systems in the breadth of digitization, even there, the language used by official institutions presents AI primarily as a “legal assistant” that enhances efficiency rather than as a fully independent judge.[32] At the same time, the Chinese experience has generated significant debate concerning oversight, surveillance, judicial autonomy, and the relationship between technology and political control.[33] The case of Estonia is especially important because it is often surrounded by misinformation in public debate. Estonia has frequently been cited as a country developing a “robot judge”, yet the Estonian Ministry of Justice publicly clarified in 2022 that it was not developing an AI judge for small claims or general court procedures to replace human judges.[34] Instead, Estonia has focused on optimization, automation of procedural steps, and other ICT tools intended to reduce administrative burdens.[35] Academic writing confirms that Estonia has long used semi-automatic procedures in certain simplified processes, such as payment-order procedures, and that its judiciary uses AI-related tools in support functions within the e-filing and court information systems, but not for autonomous judicial decision-making.[36] Thus, the Estonian experience is better understood as an example of digital procedural support rather than genuine machine adjudication.[37] Within the European Union, the prevailing approach is normative caution combined with controlled experimentation. At the policy level, the Council of Europe’s CEPEJ Ethical Charter has long insisted that AI in justice must remain consistent with fundamental rights, transparency, non-discrimination, and user control.[38] This orientation has been reinforced by the EU AI Act. Regulation (EU) 2024/1689 treats certain AI systems used in the administration of justice as high-risk, including systems intended to assist judicial authorities in researching and interpreting facts and the law and in applying the law to concrete facts.[39] Recital 61 of the Act expressly links such systems to potentially significant effects on the rule of law, the right to an effective remedy, and the right to a fair trial.[40] The European model, therefore, does not prohibit the use of AI in courts as such, but it subjects judicial AI to heightened safeguards and signals that systems operating in this field must remain tightly controlled and reviewable. A comparative assessment of current practice shows that AI is used in courts predominantly as a decision-support tool rather than as a final and autonomous decision-maker. The CEPEJ’s 2025 report is explicit on this point: according to the information currently available, there are no fully automated AI systems functioning entirely independently in courts, and the idea of replacing judges with machines is not supported by the evidence gathered in the Resource Centre.[41] The same report concludes that AI should serve as an assistant rather than a replacement and that judges must retain their own judgment throughout the process.[42] This finding is highly significant because it demonstrates that actual institutional practice remains far more cautious than some public narratives about “robot judges” might suggest. The reasons for this restraint are structural rather than merely technological. Judicial authority is inseparable from responsibility, reason-giving, procedural fairness, and the protection of rights. Even where AI can classify cases, summarize documents, retrieve precedents, or provide predictive assessments, final adjudication still requires interpretation, contextual judgment, and legal accountability. This is why, in practice, courts and regulators tend to accept AI for low-risk and preparatory functions, while resisting its use as a substitute for judicial authority.[43] The U.S. judiciary’s own reflections emphasize that AI may support judges, but cannot itself perform those “quintessentially human functions” that arise in fact-sensitive and discretionary adjudication.[44] Similarly, the EU regulatory approach classifies judicial AI as high-risk precisely because of its possible effects on fair trial rights and the rule of law.[45] Accordingly, the dominant contemporary model is not that of automated justice, but of augmented adjudication: AI may assist, inform, and streamline, yet the final decision remains the responsibility of a human judge. Possible Advantages of the Robot Judge One of the most frequently cited advantages of artificial intelligence in the administration of justice is its potential to improve efficiency and procedural speed. Judicial systems in many countries face chronic delays, heavy caseloads, and administrative congestion, which undermine the timely delivery of justice. In this context, AI-based tools may assist courts by accelerating repetitive and information-intensive tasks, including case registration, document classification, anonymization of judgments, transcription, summarization, and the preparation of draft materials.[46] The CEPEJ has reported that, by early 2025, 125 AI-related tools had already been identified in its Resource Centre on Cyberjustice and AI, many of them expressly aimed at improving judicial efficiency and accessibility.[47] Likewise, the OECD notes that AI applications in justice range from automating routine case-management functions to supporting legal research and predictive analytics, thereby reducing the time spent on tasks that would otherwise consume substantial judicial and administrative resources.[48] The practical implications of such use are significant. Where courts are burdened by large numbers of routine filings and document-heavy proceedings, AI systems can shorten processing time and relieve court personnel of manual tasks. OECD examples show that AI-assisted tools are already being used to automate anonymization, assist in legal research, and generate standardized summaries, thereby streamlining workflows within judicial institutions.[49] Particularly illustrative is the Peruvian “Amauta Pro” system, which, according to the OECD, reduced the time needed to draft protective resolutions in cases of violence from approximately three hours to forty seconds.[50] Although such examples do not imply that AI replaces adjudication itself, they do suggest that AI may contribute to reducing backlogs indirectly by freeing judges and clerks to focus on the substantive and discretionary dimensions of cases. In this respect, the appeal of the “robot judge” lies not only in the prospect of faster decisions, but also in the redistribution of institutional effort within the court system.[51] A second important advantage commonly associated with AI in justice is its capacity to support greater consistency and predictability in the treatment of similar cases. In legal systems committed to equality before the law and legal certainty, significant divergences in judicial outcomes may undermine trust in courts and make litigation outcomes harder to foresee.[52] AI tools trained on large corpora of case law may assist judges and legal professionals in identifying patterns, locating comparable precedents, and highlighting the range of outcomes that have historically been adopted in similar factual and legal situations.[53] From this perspective, algorithmic support is often presented as a means of strengthening coherence in judicial practice rather than replacing individualized adjudication. The potential value of such consistency should not be overstated, but it is nevertheless important. The OECD’s justice overview explicitly states that AI can support justice systems by improving consistency, efficiency, and accessibility.[54] In a similar vein, the CEPEJ Ethical Charter recognizes that the use of AI in justice may contribute to the efficiency and quality of judicial systems, provided that it remains compatible with fundamental rights.[55] Scholarly analysis has also linked predictive and analytical tools to the broader objectives of foreseeability, legal certainty, and equality in adjudication, especially in areas where courts decide large numbers of structurally similar cases.[56] Used carefully, AI may therefore help reduce unjustified fragmentation in case law, encourage more uniform judicial practice, and offer judges a clearer map of existing legal tendencies. At the same time, this advantage is best understood as an aid to coherence rather than as a promise of mechanical uniformity, since justice still requires sensitivity to the facts and circumstances of each case.[57] A further advantage of AI lies in its capacity to process and analyze large volumes of legal and factual data at a speed impossible for human actors alone. Courts operate in an environment saturated with legislation, case law, procedural records, expert reports, and evidentiary materials. AI systems—especially those based on natural language processing and machine learning—can assist by searching across massive datasets, detecting patterns, cross-referencing authorities, extracting relevant information, and generating structured reports on specific issues.[58] The CEPEJ’s 2025 reflections note that some AI systems can cross-reference large amounts of data and provide reports on particular points, which can be useful for analyzing case documents and facts as part of preparatory assistance.[59] This kind of analytical support is especially valuable in complex litigation, repetitive claims, and areas of law characterized by extensive case-law development. The significance of this advantage is not limited to speed alone. Large-scale analysis can also improve the informational quality of judicial work. AI tools may help judges and court staff discover tendencies that are difficult to identify manually, such as recurring procedural bottlenecks, statistically unusual outcomes, patterns in case duration, or clusters of similar claims. In legal research and case preparation, this may enhance the capacity of judicial actors to navigate precedent, compare decisions, and identify relevant normative material more comprehensively.[60] In this sense, the “robot judge” is often attractive not because it promises autonomous legal wisdom, but because it appears capable of augmenting the cognitive reach of human decision-makers. The ability to process large datasets rapidly and systematically is therefore one of the clearest functional advantages of AI in judicial settings, even when final legal evaluation remains entirely human.[61] AI is also frequently associated with the possibility of improving access to justice, particularly for individuals facing barriers related to cost, complexity, distance, and procedural opacity. Digital tools, including chatbots, virtual assistants, automated triage systems, and online dispute resolution platforms, may help users understand procedures, identify relevant legal pathways, and obtain timely information without the need for immediate in-person legal assistance.[62] The OECD emphasizes that digital technologies and data have considerable potential to support access to justice, resilience, efficiency, and fairness, while its Online Dispute Resolution Framework stresses that ODR can significantly enhance access to justice by improving affordability, reducing the need to travel, and enabling more effective and timely dispute resolution.[63] These developments are especially relevant for low-value, repetitive, or standardized disputes, where traditional court processes may be too expensive or cumbersome in relation to the amount at stake. Examples identified by the OECD and the NCSC illustrate how digital and AI-supported justice services can make justice pathways more user-friendly. In Portugal, an AI-powered chatbot has been used to provide accessible guidance and practical information to the public about justice-related matters.[64] The NCSC similarly highlights the use of triage tools to improve civil justice accessibility and to expedite certain categories of proceedings.[65] More broadly, the prospect of a digital court or AI-supported court ecosystem suggests a model in which certain disputes—especially small claims, consumer conflicts, or administrative matters—could be handled more quickly and more conveniently through online interfaces, supported by automated information tools and structured digital workflows.[66] While such developments do not eliminate the need for human adjudication, they strengthen the argument that AI, when used responsibly, may contribute to making justice systems more accessible, people-centered, and responsive to modern social needs.[67] Taken together, these advantages explain why artificial intelligence has attracted serious institutional attention in the judicial sphere. AI promises not only procedural acceleration, but also better information management, greater regularity in judicial practice, and new pathways for access to justice. Yet these benefits are strongest when AI is used as a supportive infrastructure rather than as an autonomous adjudicator.[68] The very features that make the “robot judge” attractive—speed, scale, standardization, and digital accessibility—also reveal that its most realistic contribution lies in strengthening the functioning of human-centered justice, not in displacing the human judge.[69] Artificial Intelligence and Judicial Discretion Any discussion of artificial intelligence in adjudication must begin with the principle of judicial independence, which is a prerequisite for the rule of law and a fundamental guarantee of a fair trial.[70] Judicial independence has both an institutional and an individual dimension: courts must be free from improper external influence, and judges must also be able to decide cases according to their own assessment of the facts and the law, without pressure from internal hierarchies, political actors, or technological systems.[71],[72] In this respect, the growing use of AI in courts raises a new question: can algorithmic recommendations subtly constrain the judge’s freedom of judgment, even when the final decision is formally taken by a human being? This concern is particularly relevant where AI tools are presented as highly accurate, neutral, or efficient, because such framing may create pressure to follow machine-generated outcomes rather than to exercise genuine independent reasoning.[73],[74],[75] Judicial independence is therefore closely linked to inner conviction and discretionary authority. A judge does not merely apply predetermined instructions; rather, adjudication requires a reasoned personal evaluation of the case within the bounds of law. If AI is allowed to shape the outcome too strongly, the danger is not only technical dependence but also a gradual erosion of judicial autonomy. For this reason, contemporary European guidance emphasizes that AI in justice must remain under user control and must not replace the judge’s own responsibility for legal assessment.[76],[77] Artificial intelligence can undoubtedly assist with the reading of legal texts, the retrieval of case law, and the identification of patterns across large volumes of legal material. It can also support judges by summarizing arguments, comparing precedents, or highlighting relevant factors in similar disputes.[78],[79] Yet the central issue is whether AI can move beyond information processing and perform genuine legal evaluation. Legal judgment is not exhausted by locating the applicable norm. It also requires interpretation, the reconciliation of competing principles, the assessment of proportionality, and the justification of why one solution is more consistent with justice than another. These tasks are not purely computational; they involve normative reasoning and context-sensitive judgment.[80] This limitation becomes especially visible in hard cases. The interpretation of open-textured legal standards, the balancing of rights and public interests, and the application of proportionality tests require more than prediction based on past data. They require legal reasoning that is sensitive to the singularity of the dispute and to the normative meaning of the law in context. Current policy and scholarly analysis, therefore, treat AI as a support mechanism for reasoning rather than as an autonomous bearer of legal judgment.[81],[82],[83] The limits of AI in adjudication reflect a deeper theoretical point: law is not only a system of rules, but also a practice of value-based judgment. Legal reasoning is not reducible to formal logic alone. Judicial decisions often involve fairness, equity, proportionality, social consequences, and the moral significance of the facts. Even when the legal rule appears clear, its application frequently depends on interpretation and on the weighing of values that cannot be fully translated into code or statistically inferred from prior cases.[84] Accordingly, the role of the judge goes beyond the mere processing of information. The judge acts as a public authority who must give reasons, assume responsibility, and produce a decision that can be accepted as legitimate by the parties and by society. This human dimension of adjudication explains why the concept of the “robot judge” remains problematic at the level of final decision-making. AI may strengthen judicial work, but it cannot fully replicate the normative responsibility that lies at the heart of judging.[85],[86],[87] Human Rights Perspective The use of AI in courts must be assessed through the lens of the right to a fair trial. Article 6 of the European Convention on Human Rights guarantees a hearing by an independent and impartial tribunal established by law, together with core elements of due process such as reasoned adjudication and procedural fairness.[88] In the context of judicial AI, these guarantees raise immediate concerns. If an algorithm influences the resolution of a dispute, the parties must still be able to understand how the outcome was reached, challenge the basis of the decision, and have their arguments genuinely considered by a tribunal that remains independent in substance, not only in form. The EU AI Act reflects the gravity of this issue by classifying certain AI systems used in the administration of justice as high-risk, precisely because of their potentially significant impact on the rule of law, the right to an effective remedy, and the right to a fair trial.[89] The fair trial dimension also includes the requirement of reviewability. Even where AI is used only in support of a judicial decision, the result must remain open to meaningful human reconsideration and, where applicable, appeal. A system that produces opaque or effectively unchallengeable outcomes would be difficult to reconcile with procedural justice. For that reason, judicial AI cannot be acceptable unless it preserves the parties’ ability to contest the reasoning, the data, and the relevance of machine-generated outputs.[90],[91],[92] AI systems often depend on the processing of large volumes of data, including personal and sometimes highly sensitive information. In judicial settings, this may involve criminal history, financial status, health-related material, family circumstances, or behavioral indicators. This makes privacy and data protection central concerns. Council of Europe Convention 108+ applies to automated processing of personal data, while the Council of Europe’s AI and data protection guidelines stress that human dignity and fundamental rights must remain central in AI deployment.[93] In the EU context, GDPR Article 22 provides that a person has the right not to be subject to a decision based solely on automated processing that produces legal or similarly significant effects, and accompanying guidance stresses safeguards such as meaningful information, contestability, and human intervention.[94] In the judicial sphere, the relevance of these safeguards is obvious. Where courts rely on AI tools trained on large datasets, questions arise about data minimization, security, accuracy, secondary use, and the risks created by the inclusion of sensitive personal information. These risks become even more serious when the data reflects structural social inequalities or historical over-policing, since such distortions may later influence judicial outcomes. Data protection is therefore not a peripheral issue in the debate on the robot judge; it is one of the legal foundations for limiting the use of automated decision-making in justice.[95],[96] The principle of equality before the law is directly implicated by algorithmic decision-making. AI systems learn from existing data, and where that data contains historical bias or structural inequalities, algorithmic outputs may reproduce or intensify discriminatory patterns. The CEPEJ Ethical Charter, therefore, places non-discrimination among the core principles governing the use of AI in judicial systems.[97] Likewise, the EU Agency for Fundamental Rights has warned that biased algorithms can reinforce or even create discrimination against certain groups.[98] These concerns are especially important for vulnerable groups, whose treatment in legal and administrative systems has often already been affected by social disadvantage, unequal surveillance, or discriminatory institutional practices. In courts, unequal algorithmic impact may appear in multiple ways: through skewed risk scores, distorted predictive models, selective correlations, or the use of proxies that indirectly encode race, class, gender, disability, or other protected characteristics. The fact that an AI system appears neutral on its face does not remove this danger. On the contrary, the opacity and technical authority of algorithmic systems may make discriminatory effects harder to detect. For this reason, equality in the age of judicial AI requires not only formal neutrality but active monitoring, testing, and auditing for disparate impact.[99] For all these reasons, human oversight has become a central principle in the governance of AI. Article 14 of the EU AI Act requires human oversight for high-risk systems, with the explicit aim of preventing or minimizing risks to health, safety, and fundamental rights.[6] In the justice context, this requirement has special significance: it means that a human actor must remain capable of understanding the system’s role, identifying anomalies, disregarding inappropriate outputs, and taking responsibility for the final decision. The same logic is reflected in Council of Europe materials, which stress user control and caution against non-explainable AI influencing the judge’s autonomy.[100] The human-in-the-loop model is therefore not merely a technical preference but a rights-based necessity. It preserves accountability, protects judicial independence, and ensures that technology remains subordinate to law rather than the reverse. In the field of adjudication, meaningful human control is the minimum condition for reconciling innovation with fundamental rights protection.[101] The most radical vision of the robot judge is the idea of full replacement: the automation of the judicial function itself. This theory assumes that, at least in some categories of cases, adjudication could be reduced to the processing of facts and rules through a sufficiently advanced algorithm. Such a model is most often discussed in relation to small, standardized, and repetitive disputes, where legal rules are relatively clear and factual complexity is limited. In theory, certain procedural areas—such as payment orders, uncontested claims, or highly formalized low-value disputes—may appear more suitable for extensive automation than complex constitutional, criminal, or rights-sensitive litigation.[102] Yet even in these domains, the idea of full replacement remains problematic. Current evidence does not show the existence of fully autonomous judicial AI operating independently in courts, and European guidance remains skeptical of such a model.[103] More importantly, even seemingly simple cases may raise issues of context, fairness, vulnerability, or procedural justice that resist purely automated treatment. Full replacement, therefore, remains more a theoretical provocation than a legally accepted model of justice. A more realistic approach is the collaborative model, in which AI functions as a support system within a judge-led process. In this model, the relationship is not “judge or machine”, but judge plus AI. The system may assist with research, pattern recognition, summarization, document management, or draft analysis, while the human judge retains interpretive and decision-making authority. This arrangement allows courts to benefit from technological speed and scale without abandoning the safeguards associated with human adjudication.[104] The collaborative model also reduces risk through human control. It permits judicial scrutiny of algorithmic outputs, preserves reason-giving and accountability, and makes it easier to correct errors or reject inappropriate recommendations.[105] For these reasons, cooperation rather than substitution has become the dominant practical and normative direction in contemporary debates on AI in justice.[106] From a normative standpoint, AI should not replace the judge. It may be used as a valuable supportive mechanism, but final judicial authority should remain with a human decision-maker. This position follows not only from technological caution, but from the nature of adjudication itself: judging requires discretion, interpretation, legitimacy, and responsibility in ways that cannot be fully transferred to an algorithm. The most legally acceptable model is therefore a human-centered and human-controlled framework, in which AI augments judicial work but does not determine the outcome.[107] Recommendations for Legal Policy Considering the above analysis, a prudent legal policy for AI in justice should include the following elements. First, states should adopt a clear legal framework defining which judicial functions may be supported by AI and which must remain exclusively human. Second, transparency standards should require disclosure of the role played by AI in judicial processes.[108] Third, systems used in courts should be subject to an explainability requirement, at least to the extent necessary for meaningful challenge and review. Fourth, human oversight must be mandatory wherever AI affects legally significant outcomes. Fifth, judicial AI should undergo regular audits for accuracy, robustness, and rights-related risks. Sixth, courts should implement anti-discrimination controls, including testing for biased data and disparate impact. Seventh, judicial institutions should adopt ethical guidelines for the responsible use of AI, consistent with fair trial and data protection standards. Finally, judges and legal professionals should receive training not only in the technical use of AI tools, but also in their legal limits and human rights implications.[109],[110],[111],[112],[113] Conclusion Artificial intelligence creates important opportunities for the administration of justice. It can improve efficiency, accelerate the handling of cases, support consistency, strengthen data analysis, and expand access to justice in certain categories of disputes.[114] At the same time, judicial decision-making is not merely a technical process. Justice requires fairness, explainability, accountability, equality, and respect for fundamental rights. It also requires a human judge capable of interpretation, discretion, and responsibility. For this reason, the concept of the “robot judge” should not be understood as a viable substitute for the human judge in the full sense of adjudication.[115] The most realistic and legally acceptable model is therefore not replacement, but cooperation. AI may serve as a powerful auxiliary instrument within judicial systems, provided that its use is framed by clear law, effective oversight, procedural safeguards, and meaningful human control. Only under such conditions can technological innovation remain compatible with the rule of law and the protection of human dignity. References Scholarly Literature: Barysė, D., Sarel, R. (2023). Algorithms in the court: Does it matter which part of the judicial decision-making is automated? Artificial Intelligence and Law, 32(1). DOI:10.1007/s10506-022-09343-6; de la Osa, D. U. S., Remolina, N. (2024). Artificial intelligence at the bench: Legal and ethical challenges of informing—or misinforming—judicial decision-making through generative AI. Data & Policy, 6, e59. DOI:10.1017/dap.2024.53; Dolidze T. (2026) Integration of Artificial Intelligence in Criminal Investigation and Criminal Proceedings. Generis Publishing; Donati, F. (2025). The use of artificial intelligence in judicial systems: Ethics and efficiency. In Artificial intelligence, judicial decision-making and fundamental rights (JuLIA Handbook). Scuola Superiore della Magistratura; Fortes, P. R. B. (2020). Paths to digital justice: Judicial robots, algorithmic decision-making, and due process. Asian Journal of Law and Society. DOI:10.1017/als.2020.12; Härmand, K. (2023). AI systems’ impact on the recognition of foreign judgements: The case of Estonia. Juridica International, 32; Morison, J., Harkens, A. (2019). Re-engineering justice? Robot judges, computerised courts and (semi) automated legal decision-making. Legal Studies, 39(4). DOI:10.1017/lst.2019.5; Reiling, A. D., Papagianneas, S. (2025). Lessons from China’s smart court reform? International Journal for Court Administration, 16(1). Normative acts: Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, ETS No. 5; Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108+), October 10, 2018, CETS No. 223. Council of Europe, Committee of Ministers. (2010). Recommendation CM/Rec(2010)12 on judges: independence, efficiency and responsibilities; Council of Europe. (2019). Guidelines on artificial intelligence and data protection. European Commission for the Efficiency of Justice. (2018). European ethical charter on the use of artificial intelligence in judicial systems and their environment. Council of Europe; European Data Protection Board. (2018). Guidelines on automated individual decision-making and profiling for the purposes of Regulation 2016/679; European Parliament and Council of the European Union. (2016). Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation). Official Journal of the European Union, L 119; European Union. (2024). Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence (Artificial Intelligence Act). Official Journal of the European Union, L, 2024/1689; United Nations Office on Drugs and Crime. (2002/2006). The Bangalore Principles of Judicial Conduct. UNODC. Court decision: State v. Loomis, 881 N.W.2d 749 (Wis. 2016). Supplementary Materials: Baker, J., Hobart, L., Mittelsteadt, M. (2023). An introduction to artificial intelligence for federal judges. Federal Judicial Center; European Commission for the Efficiency of Justice. (2025). 1st report on the use of artificial intelligence (AI) in the judiciary, based on the information contained in the CEPEJ’s Resource Centre on Cyberjustice and AI. Council of Europe; European Commission for the Efficiency of Justice. (2025). Reflections of the AIAB on the use of artificial intelligence in judicial systems. Council of Europe; European Court of Human Rights. (2022). Guide on Article 6 of the European Convention on Human Rights: Right to a fair trial (civil and criminal limbs); European Union Agency for Fundamental Rights. (2025). Fundamental Rights Report 2025. FRA; Ministry of Justice and Digital Affairs of Estonia. (2022). Estonia does not develop AI Judge; National Center for State Courts. (2026). Guidance for implementing AI in courts; National Institute of Standards and Technology. (n.d.). Machine learning. NIST Computer Security Resource Center Glossary; OECD.AI. (n.d.). AI in government: Issues – Justice. OECD; OECD. (2024). Explanatory memorandum on the updated OECD definition of an AI system. OECD Artificial Intelligence Papers, No. 8. OECD Publishing; Organisation for Economic Co-operation and Development. (2024). OECD online dispute resolution framework. OECD Publishing; Organisation for Economic Co-operation and Development. (2025). AI in justice administration and access to justice. In Governing with artificial intelligence: The state of play and way forward in core government functions. OECD Publishing; Roberts, J. G., Jr. (2023). 2023 Year-End Report on the Federal Judiciary. Supreme Court of the United States; Supreme People’s Court of the People’s Republic of China. (2024). SPC launches AI-generated platform to help judges, public. Footnotes [1] OECD. (2024). Explanatory memorandum on the updated OECD definition of an AI system. OECD Artificial Intelligence Papers, No. 8. OECD Publishing. [2] Ibid. [3] National Institute of Standards and Technology. (n.d.). Machine learning. NIST Computer Security Resource Center Glossary. [4] Ibid. [5] European Commission for the Efficiency of Justice. (2018). European ethical charter on the use of artificial intelligence in judicial systems and their environment. Council of Europe. [6] Morison, J., Harkens, A. (2019). Re-engineering justice? Robot judges, computerised courts and (semi) automated legal decision-making. Legal Studies, 39(4), 618–635. DOI:10.1017/lst.2019.5. [7] Fortes, P. R. B. (2020). Paths to digital justice: Judicial robots, algorithmic decision-making, and due process. Asian Journal of Law and Society. DOI:10.1017/als.2020.12. [8] European Commission for the Efficiency of Justice. (2018). European ethical charter on the use of artificial intelligence in judicial systems and their environment. Council of Europe. [9] Fortes, P. R. B. (2020). Paths to digital justice: Judicial robots, algorithmic decision-making, and due process. Asian Journal of Law and Society. DOI:10.1017/als.2020.12. [10] Morison, J., Harkens, A. (2019). Re-engineering justice? Robot judges, computerized courts and (semi) automated legal decision-making. Legal Studies, 39(4), 618–635. DOI:10.1017/lst.2019.5. [11] Barysė, D., Sarel, R. (2023). Algorithms in the court: Does it matter which part of the judicial decision-making is automated? Artificial Intelligence and Law, 32(1). DOI:10.1007/s10506-022-09343-6. [12] Ibid. [13] de la Osa, D. U. S., Remolina, N. (2024). Artificial intelligence at the bench: Legal and ethical challenges of informing—or misinforming—judicial decision-making through generative AI. Data & Policy, 6, e59. DOI:10.1017/dap.2024.53. [14] Ibid. [15] European Commission for the Efficiency of Justice. (2025). 1st report on the use of artificial intelligence (AI) in the judiciary, based on the information contained in the CEPEJ’s Resource Centre on Cyberjustice and AI. Council of Europe. [16] Ibid. [17] Ibid. [18] Ibid. [19] Organisation for Economic Co-operation and Development. (2025). AI in justice administration and access to justice. In Governing with artificial intelligence: The state of play and way forward in core government functions. OECD Publishing. [20] Ibid. [21] National Center for State Courts. (2026). Guidance for implementing AI in courts. [22] State v. Loomis, 881 N.W.2d 749 (Wis. 2016). [23] Ibid. [24] Baker, J., Hobart, L., Mittelsteadt, M. (2023). An introduction to artificial intelligence for federal judges. Federal Judicial Center. [25] State v. Loomis, 881 N.W.2d 749 (Wis. 2016). [26] Baker, J., Hobart, L., Mittelsteadt, M. (2023). An introduction to artificial intelligence for federal judges. Federal Judicial Center. [27] National Center for State Courts. (2026). Guidance for implementing AI in courts. [28] Roberts, J. G., Jr. (2023). 2023 Year-End Report on the Federal Judiciary. Supreme Court of the United States. [29] Reiling, A. D., Papagianneas, S. (2025). Lessons from China’s smart court reform? International Journal for Court Administration, 16(1). [30] Ibid. [31] Supreme People’s Court of the People’s Republic of China. (2024). SPC launches AI-generated platform to help judges, public. [32] Ibid. [33] Reiling, A. D., Papagianneas, S. (2025). Lessons from China’s smart court reform? International Journal for Court Administration, 16(1). [34] Ministry of Justice and Digital Affairs of Estonia. (2022). Estonia does not develop AI Judge. [35] Ibid. [36] Härmand, K. (2023). AI systems’ impact on the recognition of foreign judgements: The case of Estonia. Juridica International, 32, 107–118. [37] Ibid. [38] European Commission for the Efficiency of Justice. (2018). European ethical charter on the use of artificial intelligence in judicial systems and their environment. Council of Europe. [39] European Union. (2024). Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence (Artificial Intelligence Act). Official Journal of the European Union, L, 2024/1689. [40] Ibid. [41] European Commission for the Efficiency of Justice. (2025). 1st report on the use of artificial intelligence (AI) in the judiciary, based on the information contained in the CEPEJ’s Resource Centre on Cyberjustice and AI. Council of Europe. [42] Ibid. [43] Roberts, J. G., Jr. (2023). 2023 Year-End Report on the Federal Judiciary. Supreme Court of the United States. [44] Baker, J., Hobart, L., & Mittelsteadt, M. (2023). An introduction to artificial intelligence for federal judges. Federal Judicial Center. [45] European Union. (2024). Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence (Artificial Intelligence Act). Official Journal of the European Union, L, 2024/1689. [46] Organisation for Economic Co-operation and Development. (2025). AI in justice administration and access to justice. In Governing with artificial intelligence: The state of play and way forward in core government functions. OECD Publishing. [47] Ibid. [48] Ibid. [49] Ibid. [50] Ibid. [51] European Commission for the Efficiency of Justice. (2025). Reflections of the AIAB on the use of artificial intelligence in judicial systems. Council of Europe. [52] OECD.AI. (n.d.). AI in government: Issues – Justice. OECD. [53] Donati, F. (2025). The use of artificial intelligence in judicial systems: Ethics and efficiency. In Artificial intelligence, judicial decision-making and fundamental rights (JuLIA Handbook). Scuola Superiore della Magistratura. [54] OECD.AI. (n.d.). AI in government: Issues – Justice. OECD. [55] European Commission for the Efficiency of Justice. (2018). European ethical charter on the use of artificial intelligence in judicial systems and their environment. Council of Europe. [56] Donati, F. (2025). The use of artificial intelligence in judicial systems: Ethics and efficiency. In Artificial intelligence, judicial decision-making and fundamental rights (JuLIA Handbook). Scuola Superiore della Magistratura. [57] Ibid. [58] European Commission for the Efficiency of Justice. (2025). 1st report on the use of artificial intelligence (AI) in the judiciary, based on the information contained in the CEPEJ’s Resource Centre on Cyberjustice and AI. Council of Europe. [59] European Commission for the Efficiency of Justice. (2025). Reflections of the AIAB on the use of artificial intelligence in judicial systems. Council of Europe. [60] Ibid. [61] Organisation for Economic Co-operation and Development. (2025). AI in justice administration and access to justice. In Governing with artificial intelligence: The state of play and way forward in core government functions. OECD Publishing. [62] European Commission for the Efficiency of Justice. (2025). Reflections of the AIAB on the use of artificial intelligence in judicial systems. Council of Europe. [63] Organisation for Economic Co-operation and Development. (2024). OECD online dispute resolution framework. OECD Publishing. [64] Organisation for Economic Co-operation and Development. (2025). AI in justice administration and access to justice. In Governing with artificial intelligence: The state of play and way forward in core government functions. OECD Publishing. [65] National Center for State Courts. (2026). Guidance for implementing AI in courts. [66] Organisation for Economic Co-operation and Development. (2024). OECD online dispute resolution framework. OECD Publishing. [67] National Center for State Courts. (2026). Guidance for implementing AI in courts. [68] European Commission for the Efficiency of Justice. (2025). Reflections of the AIAB on the use of artificial intelligence in judicial systems. Council of Europe. [69] European Commission for the Efficiency of Justice. (2018). European ethical charter on the use of artificial intelligence in judicial systems and their environment. Council of Europe. [70] United Nations Office on Drugs and Crime. (2002/2006). The Bangalore Principles of Judicial Conduct. UNODC. [71] Ibid. [72] Council of Europe, Committee of Ministers. (2010). Recommendation CM/Rec(2010)12 on judges: independence, efficiency and responsibilities. [73] United Nations Office on Drugs and Crime. (2002/2006). The Bangalore Principles of Judicial Conduct. UNODC. [74] Council of Europe, Committee of Ministers. (2010). Recommendation CM/Rec(2010)12 on judges: independence, efficiency and responsibilities. [75] European Commission for the Efficiency of Justice. (2025). Reflections of the AIAB on the use of artificial intelligence in judicial systems. Council of Europe. [76] Ibid. [77] European Commission for the Efficiency of Justice. (2018). European ethical charter on the use of artificial intelligence in judicial systems and their environment. Council of Europe. [78] European Commission for the Efficiency of Justice. (2025). Reflections of the AIAB on the use of artificial intelligence in judicial systems. Council of Europe. [79] de la Osa, D. U. S., Remolina, N. (2024). Artificial intelligence at the bench: Legal and ethical challenges of informing—or misinforming—judicial decision-making through generative AI. Data & Policy, 6, e59. DOI:10.1017/dap.2024.53. [80] Ibid. [81] European Commission for the Efficiency of Justice. (2025). Reflections of the AIAB on the use of artificial intelligence in judicial systems. Council of Europe. [82] de la Osa, D. U. S., Remolina, N. (2024). Artificial intelligence at the bench: Legal and ethical challenges of informing—or misinforming—judicial decision-making through generative AI. Data & Policy, 6, e59. DOI:10.1017/dap.2024.53. [83] European Union. (2024). Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence (Artificial Intelligence Act). [84] de la Osa, D. U. S., Remolina, N. (2024). Artificial intelligence at the bench: Legal and ethical challenges of informing—or misinforming—judicial decision-making through generative AI. Data & Policy, 6, e59. DOI:10.1017/dap.2024.53. [85] United Nations Office on Drugs and Crime. (2002/2006). The Bangalore Principles of Judicial Conduct. UNODC. [86] European Commission for the Efficiency of Justice. (2025). Reflections of the AIAB on the use of artificial intelligence in judicial systems. Council of Europe. [87] de la Osa, D. U. S., Remolina, N. (2024). Artificial intelligence at the bench: Legal and ethical challenges of informing—or misinforming—judicial decision-making through generative AI. Data & Policy, 6, e59. DOI:10.1017/dap.2024.53. [88] European Court of Human Rights. (2022). Guide on Article 6 of the European Convention on Human Rights: Right to a fair trial (civil and criminal limbs). [89] European Union. (2024). Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence (Artificial Intelligence Act). [90] European Court of Human Rights. (2022). Guide on Article 6 of the European Convention on Human Rights: Right to a fair trial (civil and criminal limbs). [91] European Union. (2024). Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence (Artificial Intelligence Act). [92] European Data Protection Board. (2018). Guidelines on automated individual decision-making and profiling for the purposes of Regulation 2016/679; European Union. (2016). Regulation (EU) 2016/679 (General Data Protection Regulation), Art. 22. [93] Council of Europe. (2018). Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108+); Council of Europe. (2019). Guidelines on artificial intelligence and data protection. [94] European Data Protection Board. (2018). Guidelines on automated individual decision-making and profiling for the purposes of Regulation 2016/679; European Union. (2016). Regulation (EU) 2016/679 (General Data Protection Regulation), Art. 22. [95] Ibid. [96] Council of Europe. (2018). Protocol amending the Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data (Convention 108+); Council of Europe. (2019). Guidelines on artificial intelligence and data protection. [97] European Commission for the Efficiency of Justice. (2018). European ethical charter on the use of artificial intelligence in judicial systems and their environment. Council of Europe. [98] European Union Agency for Fundamental Rights. (2025). Fundamental Rights Report 2025. FRA. [99] Ibid. [100] European Commission for the Efficiency of Justice. (2018). European ethical charter on the use of artificial intelligence in judicial systems and their environment. Council of Europe. [101] European Union. (2024). Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence (Artificial Intelligence Act). [102] Ibid. [103] European Commission for the Efficiency of Justice. (2025). Reflections of the AIAB on the use of artificial intelligence in judicial systems. Council of Europe. [104] European Commission for the Efficiency of Justice. (2018). European ethical charter on the use of artificial intelligence in judicial systems and their environment. Council of Europe. [105] European Union. (2024). Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence (Artificial Intelligence Act). [106] European Commission for the Efficiency of Justice. (2018). European ethical charter on the use of artificial intelligence in judicial systems and their environment. Council of Europe. [107] de la Osa, D. U. S., Remolina, N. (2024). Artificial intelligence at the bench: Legal and ethical challenges of informing—or misinforming—judicial decision-making through generative AI. Data & Policy, 6, e59. [108] Dolidze T. (2026) Integration of Artificial Intelligence in Criminal Investigation and Criminal Proceedings. Generis Publishing, 20-21. [109] European Commission for the Efficiency of Justice. (2025). Reflections of the AIAB on the use of artificial intelligence in judicial systems. Council of Europe. [110] European Union. (2024). Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence (Artificial Intelligence Act). [111] European Data Protection Board. (2018). Guidelines on automated individual decision-making and profiling for the purposes of Regulation 2016/679; European Union. (2016). Regulation (EU) 2016/679 (General Data Protection Regulation), Art. 22. [112] European Commission for the Efficiency of Justice. (2018). European ethical charter on the use of artificial intelligence in judicial systems and their environment. Council of Europe. [113] European Union Agency for Fundamental Rights. (2025). Fundamental Rights Report 2025. FRA [114] European Commission for the Efficiency of Justice. (2018). European ethical charter on the use of artificial intelligence in judicial systems and their environment. Council of Europe. [115] European Union. (2024). Regulation (EU) 2024/1689 of the European Parliament and of the Council of 13 June 2024 laying down harmonised rules on artificial intelligence (Artificial Intelligence Act).
Legal Protection Mechanisms for Electronic Consumers from Misleading Advertising
This study addresses the legal protection of electronic consumers from misleading advertisements. Fair electronic advertising is a fundamental requirement of e-commerce and a means for advertisers to promote their products. However, violations of advertising integrity rules occur in attempts to mislead consumers. Considering that the electronic consumer is a weak party in electronic commercial transactions, the Algerian legislator has established legal protection through several laws enshrining the principles of transparency and establishing penalties for violations by electronic suppliers. Legal systems vary between countries in the level of protection provided, with developed countries advancing comprehensive legislation and effective mechanisms compared to developing countries still striving to keep pace with technological developments. Addressing these challenges requires developing national legislation, enhancing international cooperation, investing in advanced monitoring technology, and intensifying consumer awareness programs on digital rights. This contributes to building a safe and reliable e-commerce environment that effectively protects consumer rights from misleading and fraudulent business practices. Keywords: Consumer protection law, misleading electronic advertising, e-commerce regulation, unfair commercial practices, digital advertising. Introduction Electronic commerce has transformed commercial transactions globally, enabling consumers to purchase goods and services across borders with unprecedented ease. However, this development has exposed consumers to new risks, particularly misleading electronic advertising. The rise of influencer marketing has blurred the line between genuine opinion and paid endorsement, creating new vectors for consumer deception that traditional legal frameworks struggle to address.[1] The Algerian legislator has drawn on comparative models, including the European Union’s Digital Services Act[2] and Directive 2005/29/EC,[3] the American FTC[4] framework, and British consumer protection regulations.[5] At the soft-law level, the OECD Guidelines for Multinational Enterprises on Responsible Business Conduct (2023)[6] call on enterprises to ensure that marketing and advertising are fair and not misleading, and that consumers receive accurate information about products and services. Recent comparative research demonstrates that challenges arising from data-intensive business models and cross-border e-commerce weaken the overall effectiveness of legal protection for electronic consumers, calling for more harmonised rules and enhanced cross-border cooperation.[7] The European regulatory architecture for electronic commerce rests on two complementary instruments. Directive 2000/31/EC of 8 June 2000 on electronic commerce[8] established the foundational legal framework for information society services in the internal market, including specific requirements for commercial communications under Articles 6 and 7. Article 6 mandates that commercial communications be clearly identifiable as such, that the natural or legal person on whose behalf they are made be clearly identifiable, and that promotional offers and conditions be easily accessible and presented clearly and unambiguously. This transparency-based approach sought to prevent consumer deception by ensuring that electronic advertising could be distinguished from other content. Twenty-two years later, Regulation (EU) 2022/2065 (Digital Services Act) amended this directive to address new challenges posed by online platforms, including the dissemination of misleading information and manipulative interface designs, while preserving the foundational liability framework established by Articles 12-14 of Directive 2000/31/EC.[9] The Algerian legislator issued E-Commerce Law 18-05 dated May 10, 2018,[10] and Law No. 09-03 of February 25, 2009, relating to consumer protection and suppression of fraud.[11] Recent Algerian scholarship has examined Law 18-05 as a comprehensive framework for protecting online consumers, with particular focus on pre-contractual information duties and safeguards against misleading electronic advertising, though important gaps remain, including the lack of an explicit definition of misleading electronic advertising.[12] This study aims to clarify the most important aspects of legal protection for the electronic consumer from misleading advertising, evaluate the adequacy of national legal texts in comparison with international standards, and urge electronic advertisers to adhere to legal rules to avoid unfair practices. This topic raises an important problem: To what extent do current legal mechanisms for protecting the electronic consumer fit with the challenges posed by misleading electronic advertising in the contemporary digital environment? Several hypotheses branch out from this main problem: First, how can traditional legal frameworks keep pace with the rapid development of advanced digital advertising technologies? Second, current legal mechanisms for protecting electronic consumers suffer from legislative and enforcement gaps that limit their effectiveness in confronting advanced methods of misleading advertising, which calls for the development of innovative legal approaches that combine technical flexibility with effective protection; Third, protecting consumers from misleading advertising requires incorporating technical standards into legal texts; Fourth, effective regulation requires unified international cooperation mechanisms between regulatory authorities. Methodology This study employs analytical, descriptive, and comparative approaches to examine the legal texts governing electronic consumer protection from misleading advertising. The analytical approach deconstructs the research problem and extracts protective provisions from relevant legal texts. The descriptive approach provides a deep understanding of fundamental concepts such as electronic consumer, electronic advertising, and misleading advertising. The comparative approach encompasses three dimensions: horizontal comparison between different legal traditions (Anglo-Saxon, civil law, mixed systems), vertical comparison between regulatory levels (international soft law, regional instruments, national legislation), and temporal comparison tracking the evolution of consumer protection legislation from Directive 2000/31/EC to the Digital Services Act. The study is divided into two chapters: the conceptual framework for misleading advertising and the legal basis for electronic consumer protection (Chapter One), and legal mechanisms to protect the electronic consumer from misleading electronic advertising (Chapter Two). 1. The Conceptual Framework for Misleading Advertising and the Legal Basis for Electronic Consumer Protection Commercial advertising plays a major role in influencing consumer behavior. However, consumers may be exposed to deception through advertising, and therefore, adequate legal protection must be provided. Modern legislation has tended towards criminalizing false claims and misleading advertising. 1.1. Definition of misleading advertising The dishonest practice of false statements and impressions made by advertisers to persuade consumers to make a purchase is known as deceptive advertising.[13] The Internet in e-commerce is a double-edged sword: facilitating commercial exchanges while also enabling crimes. Legislative intervention is necessary to control the consumer process in this virtual environment. 1.1.1 Definition of misleading advertising in Algerian law The crime of misleading electronic advertising is considered a form of information crimes in which the victim is the electronic consumer,[14] whom the Algerian legislator defined in the Electronic Commerce Law 18-05, Article 06, as “any natural or legal person who acquires, for compensation or free of charge, a good or service through electronic communications from the electronic resource for the purpose of end use”.[15] Misleading electronic advertising is defined as an advertisement in which the advertiser uses false words or phrases about the essential characteristics of the product or service advertised electronically, leading to consumer deception.[16] The Algerian legislator did not provide an explicit definition, but defined electronic advertising requirements under Law No. 18-05.[17] Law 09-03 considers advertising that deceives consumers through writings or publications as an aggravating circumstance for the misdemeanor of deception.[18] Article 28 of Law 04-02 relating to commercial practices states that all misleading advertising is illegal and prohibited, especially if it includes misleading information about product definition, quantity, availability, or features, or could lead to confusion with another seller’s products.[19] 1.1.2 Definition of misleading advertising in comparative legislation Comparative legal systems converge on three constitutive elements of misleading advertising: (1) the presence of false, inaccurate, or incomplete information; (2) the capacity to influence the economic decision of the average consumer; and (3) the deliberate omission of material information. At the European Union level, Directive 2005/29/EC establishes a harmonised prohibition of unfair commercial practices, including misleading actions and omissions that materially distort the economic behaviour of the average consumer.[20] Recent scholarship defines evolving deceptive techniques as “dark patterns”, interface designs deliberately crafted to manipulate user autonomy and steer consumer choices.[21] This development is reflected in the Digital Services Act, whose Article 25 prohibits designing interfaces that deceive or manipulate service recipients.[22] Annex I complements this framework with a blacklist of practices that are in all circumstances unfair, several of which directly target misleading advertising techniques such as bait advertising, bait-and-switch strategies, false endorsements, and advertorials.[23] The interaction between the E-Commerce Directive and unfair commercial practices legislation creates a layered regulatory framework. While Directive 2000/31/EC establishes formal transparency requirements for commercial communications—mandating clear identification of advertising content and the advertiser’s identity—Directive 2005/29/EC addresses the substantive truthfulness of such communications by prohibiting misleading actions and omissions. This complementary structure means that electronic advertising may violate European consumer protection law either by failing to meet formal identification requirements (Article 6 of Directive 2000/31/EC) or by containing materially misleading content (Articles 6-7 of Directive 2005/29/EC). The Digital Services Act reinforces this framework by imposing additional due diligence obligations on online platforms, including the prohibition of deceptive interface designs under Article 25. This evolution reflects the recognition that effective protection against misleading electronic advertising requires addressing both the formal presentation and the substantive content of commercial messages, as well as the structural conditions that facilitate their dissemination. The French Consumer Code (Article L121-1) qualifies as misleading any commercial practice containing false information or likely to mislead, even if formally correct.[24] Under the US Federal Trade Commission Act,[25] an advertisement is misleading where it involves misrepresentation or omission, is likely to mislead consumers acting reasonably, and concerns material information affecting purchasing decisions.[26] British law, through the Consumer Protection from Unfair Trading Regulations 2008, criminalises practices that deceive the average consumer through false information, undue influence, or concealment of essential facts.[27] From this definition, the basic elements of misleading advertising can be identified as follows: First, the presence of an advertising message directed to the public to promote a good or service; Second, providing false or misleading information, whether this information relates to the nature of the product, its characteristics, its price, or the guarantees provided with it; Third, the possibility of advertising influencing the consumer’s decision, meaning that advertising would push the consumer to make a purchase decision that he would not have made without that information. Article L121-2 of the Consumer Code further stipulates that the deliberate concealment of essential information can constitute a misleading practice, even in the absence of explicit false information.[28] According to the US Federal Trade Commission (FTC),[29] an advertisement is considered misleading if three main elements are present: First, incorrect representation or omission of information, such as providing incorrect data or withholding essential information; Second, the capacity to mislead, meaning that advertising would mislead the average consumer who relies on this information; Third, the materiality of the information in the purchasing decision, meaning that the misinformation must be related to a factor influencing the consumer’s decision to purchase the product or service. Therefore, misleading advertising in the US law is a clear violation of the consumer’s right to correct information, constitutes illegal commercial behavior, and is combated at the federal and state levels through special legislation and effective regulatory bodies. 1.2. Elements of the crime of misleading electronic advertising Every crime requires three pillars: the legal pillar, the material pillar, and the moral pillar. The crime of misleading advertising is a formal crime that occurs as soon as the conduct criminalized by law is committed. 1.2.1. Material element The material element presupposes the existence of a commercial advertisement disseminated through electronic means,[30] containing misleading information likely to confuse consumers regarding the nature, quantity, or characteristics of the product or service.[31] Neither Algerian nor French law requires a specific professional status for the perpetrator; liability attaches to any natural or legal person who publishes a misleading advertisement.[32] The forms of misleading advertising are represented in the elements stipulated by the legislator in Article 28 of Law 04-02. Jurisprudence divides these into two categories: misleading related to the good or service itself (availability, components, origin, method and date of manufacture, quantity, price),[33] and misleading related to elements independent of it (terms and motives of sale, advertiser’s obligations and identity). 1.2.2. Moral element Most French court rulings have tended to assume bad faith in misleading advertisements. The French Court of Cassation, in its decision of 5/1/1994, considered that the misdemeanor of misleading advertising occurs even without bad faith; the advertiser is obligated to verify the advertisement before publishing it.[34] Judges are not obligated to search for bad faith; negligent error suffices for liability.[35] Failure to require intentionality or bad faith of the advertiser: Most French court rulings have tended to assume bad faith in misleading advertisements, including a notable ruling convicting a real estate agent who had made a false advertisement for an advertised property, relying on the trust confirmed by the property owner. The court did not consider bad faith a condition for liability for false advertising, stating that “a lie is necessarily voluntary, i.e., intentional”. Thus, the court ruled that a false commercial message triggers liability regardless of the advertiser’s bad faith.[36] The French Court of Cassation definitively settled this matter in its decision of 5 January 1994, which held that the misdemeanor of misleading advertising occurs even without the advertiser having bad faith.[37] Negligence or lack of precaution cannot serve as an excuse to escape responsibility, as the advertiser is obligated to verify the advertisement and its authenticity and to be aware of everything it contains before publishing it. In the face of this decisive ruling, judges are not obligated to search for the advertiser’s bad faith; it is sufficient that the latter committed a negligent or careless error to be considered guilty. As for the Algerian legislator, based on Article 28 of Law 04-02,[38] it is clear that he did not refer to the requirement of bad faith or its exclusion, meaning that the advertiser’s will is directed towards the material actions that represent lying and misleading. In Brazilian legislation, Article 67 of the Consumer Defense Code establishes criminal liability for misleading advertising where the person “knows or should know” the advertisement is misleading, covering both intent (dolo) and negligence (culpa).[39] European Union laws focus on “the possibility of misleading the average consumer” regardless of the advertiser’s intention.[40] 1.2.3. Consumer misinformation assessment criteria Consumer assessment is subject to two criteria. The subjective criterion considers the recipient’s personal characteristics—intelligence, perception, experience. However, this criterion is criticized for requiring research into hidden personal attributes.[41] The objective criterion uses the standard of the ordinary person of average intelligence representing the general public, according to which misleading advertising occurs only if likely to mislead the average consumer. 2. Ways to Legally Protect the Electronic Consumer from Misleading Advertisements Commercial advertising pushes consumers to contract, necessitating protection from advertisers displaying misleading electronic advertisements. False and misleading advertisements can be categorized into violations of the consumer’s right to information and choice, and violations of the consumer’s right to safety.[42] This protective framework is grounded in the United Nations Guidelines for Consumer Protection (UNGCP, 2015). Guideline 11(b) requires businesses to avoid “illegal, unethical, discriminatory or deceptive practices”, while Guideline 63 urges Member States to ensure consumer protection in e-commerce is not less than in other forms of commerce.[43] The 2016 OECD Recommendation on Consumer Protection in E-commerce sets standards for fair business practices, clear online disclosures, and effective dispute resolution, requiring that consumer protection in e-commerce be not less effective than in offline commerce.[44] 2.1. Preventive protection for the electronic consumer from misleading advertisements Preventive protection means legal and regulatory measures aimed at preventing the publication of advertisements containing incorrect or misleading data before reaching the consuming public. These measures include prior censorship, binding standards for advertising content, and special obligations on advertisers. In Algeria, Law No. 18-05 and Law No. 09-03 prohibit the publication of advertisements containing false data or likely to mislead consumers.[45] The legislator obliges advertisers to accurately state essential data and grants competent authority to stop or withdraw violating advertisements.[46] Recent Algerian scholarship emphasises that these mechanisms seek to rebalance the contractual relationship in electronic commerce by deterring misleading advertising and providing enforceable rights and remedies, though legal measures must be complemented by sustained awareness-raising efforts.[47] Developed jurisdictions have established robust preventive mechanisms. In France, the DGCCRF may prevent misleading advertisements before publication.[48] The US Federal Trade Commission possesses the authority to issue cease and desist orders and impose fines.[49] Egypt’s Consumer Protection Law No. 181 of 2018 gives the Consumer Protection Agency authority to stop advertisements containing misleading information,[50] with the possibility of referring violators to the Public Prosecution.[51] Japan’s Fair Trade Commission reviews advertisements and issues corrective orders under the Act against Unjustifiable Premiums and Misleading Representations.[52] At the European Union level, the Digital Services Act establishes a harmonised preventive framework based on due diligence obligations for intermediary service providers, requiring online platforms to actively assess and mitigate systemic risks, including the dissemination of misleading information.[53] The OECD Guidelines (2023) reinforce preventive standards by calling on enterprises to refrain from deceptive commercial practices and conduct risk-based due diligence.[54] The Council of Europe’s 1989 European Convention on Transfrontier Television prohibits subliminal and surreptitious advertising and imposes safeguards for advertising addressed to children.[55] The preventive framework established by Directive 2000/31/EC operates through transparency mechanisms rather than prior authorisation. Article 6 requires that commercial communications transmitted by electronic means satisfy four cumulative conditions: they must be clearly identifiable as commercial communications; the natural or legal person on whose behalf the communication is made must be clearly identifiable; promotional offers must be clearly identifiable as such, with conditions easily accessible and presented clearly; and promotional competitions or games must likewise be clearly identifiable, with participation conditions easily accessible. Article 7 complements these requirements by regulating unsolicited commercial communications, requiring Member States to ensure that service providers undertaking such communications consult and respect opt-out registers. These provisions establish a preventive logic based on consumer empowerment through information rather than administrative censorship. However, the effectiveness of this approach has been questioned in the context of contemporary digital markets, where the proliferation of native advertising, influencer marketing, and algorithmic content curation has blurred the boundaries between commercial and non-commercial content. The Digital Services Act responds to these challenges by requiring online platforms to ensure that advertisements are clearly distinguishable from other content and that recipients can identify the advertiser and the parameters used for targeting. Article 26 specifically mandates that online platforms label advertisements and provide meaningful information about their commercial nature, thereby updating the transparency requirements of Directive 2000/31/EC for the platform economy. Recent scholarship on advertising self-regulation emphasises that preventive consumer protection in digital markets also depends on how power and responsibility are distributed among advertisers, media, self-regulatory organisations, digital platforms, and consumers.[56] Influencer marketing and social media advertising create specific risks of misleading endorsements; emerging regulatory frameworks now require clear disclosure of paid partnerships.[57] Recent Indian scholarship confirms that technology-responsive legal frameworks are decisive factors in building consumer trust in digital markets,[58] while Chinese scholarship on live streaming commerce illustrates governance gaps related to the allocation of responsibility among platforms, streamers, and merchants.[59] Similar regulatory fragmentation has been documented in South Africa.[60] Applying the Power-Responsibility Equilibrium framework, recent scholarship shows that the rise of global platforms and cross-border digital campaigns has disrupted traditional national self-regulatory systems, as those actors with the greatest structural power do not yet bear commensurate regulatory responsibilities.[61] It therefore calls for embedding responsibility within corporate and platform cultures, aligning standards and funding models across jurisdictions, and strengthening proactive monitoring and cross-country cooperation to restore the balance of power and ensure effective protection against misleading online advertising. 2.2. Therapeutic protection for the electronic consumer from misleading advertisements Remedial protection relates to legal mechanisms allowing consumers or competent authorities to address damage resulting from misleading advertising after it occurs. It encompasses legal, administrative, and judicial means aimed at addressing negative effects, restoring disturbed balance, and ensuring violations are not repeated.[62],[63] 2.2.1. Civil liability Civil liability is based on compensating damage caused to consumers as a result of misleading advertising, including material and moral damages.[64] The French Consumer Code allows affected consumers to file lawsuits before civil courts to claim compensation.[65] The FTC has the authority to issue orders to stop advertising, impose fines, and oblige companies to compensate those affected; class actions can also be filed.[66] Egyptian consumer protection agencies can stop violating advertisements and refer those responsible to the Public Prosecution.[67] In Britain, the Advertising Standards Authority can impose withdrawal of advertisements and refer violators to courts.[68] Comparable challenges have been documented in developing e-commerce markets. In Bangladesh, fragmented oversight has resulted in weak enforcement against misleading advertisements; proposed reforms include a unified E-Commerce Consumer Protection Act.[69] In Indonesia, general consumer protection laws have proved insufficient to address online false advertising, confirming that effective redress depends on institutional capacity, consumer awareness, and smart regulatory mixes.[70] Article 30(6) of the Algerian Electronic Commerce Law explicitly prohibits misleading and ambiguous electronic advertising formulated in terms that deceive consumers and cause confusion, stating: “...Ensure that all conditions that must be met to benefit from the commercial offer are neither misleading nor ambiguous”. Similarly, Article 28 of Law No. 04-02 on commercial practices prohibits misleading advertising, particularly when it includes statements, data, or presentations that could mislead consumers regarding the definition, quantity, availability, or characteristics of a product. Although the latter provision does not specifically address electronic advertising, its principles can be applied by analogy to digital commercial communications. This regulatory gap underscores the need for the Algerian legislator to address the matter more comprehensively, as traditional legal texts have become inadequate to counter sophisticated electronic advertising deception methods.[71] The liability framework for misleading electronic advertising must be understood in light of the safe harbour provisions established by Directive 2000/31/EC. Articles 12-14 provide conditional exemptions from liability for intermediary service providers acting as mere conduits, caching services, or hosting providers, provided they meet specific conditions regarding knowledge and expeditious removal of illegal content. These provisions, preserved by the Digital Services Act, create a distinction between the liability of advertisers who create misleading content and the liability of platforms that host or transmit such content. The practical consequence is that effective remedial protection requires identifying the appropriate defendant: while advertisers bear direct liability for misleading commercial communications, platform liability depends on proof of actual knowledge and failure to act expeditiously. This distinction is particularly relevant in the Algerian context, where Law 18-05 does not explicitly address the allocation of liability between content creators and intermediary service providers. 2.2.2. Criminal liability Criminal liability punishes advertisers who intentionally publish false or misleading advertisements through fines, imprisonment, or both. The French Penal Code stipulates criminal penalties of up to two years in prison and fines if intentional deception is proven.[72] Under Algerian law, Article 40 of the Electronic Commerce Law provides: “Without prejudice to the rights of victims to compensation, anyone who violates the provisions of Articles 30, 31, 32, and 34 of this law shall be punished with a fine of 50,000 to 500,000 DZD”.[73] The fine is doubled for repetition within twelve months.[74] Both the advertiser and service provider publishing the misleading advertisement are held responsible for criminal and civil liability. The basis for imposing financial penalties without deprivation of liberty lies in the economic nature of these crimes committed for illegal profit. However, the fine value remains small compared to potential profits, and does not achieve the required deterrence, especially since this crime affects consumer health and safety. 2.2.3. Removal of misleading advertising Removal involves obligating the advertiser to withdraw the advertisement from publishing media and issue a corrective statement. Under Japanese law, the Consumer Protection Authority may issue immediate orders to stop misleading advertising and oblige advertisers to correct false information.[75] Conclusion This study demonstrates that while e-commerce offers significant advantages, it poses new challenges for consumer protection against misleading advertising. Comparative analysis reveals a disparity between developed countries, which have established comprehensive legal frameworks with effective enforcement mechanisms, and developing countries still adapting their legislation to technological developments. Key findings include: consumers’ lack of digital awareness makes them more vulnerable to misleading practices; the cross-border nature of e-commerce makes enforcing local laws complex; and the rapid development of artificial intelligence and targeted advertising creates new forms of misleading advertising difficult to detect with traditional means. Recent legal scholarship on “dark patterns” shows that deceptive online choice architectures have become a central regulatory challenge, calling for a shift from ex post, harm-based enforcement towards proactive, design-embedded regulatory approaches. 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United Nations. https://unctad.org/system/files/official-document/ditccplpmisc2016d1_en.pdf United States. Federal Trade Commission Act, 15 U.S.C. Other supplementing materials: Advertising Standards Authority. (2021). The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code). https://www.asa.org.uk/codes-and-rulings/advertising-codes/non-broadcast-code.html Organisation for Economic Co-operation and Development. (2023). OECD Guidelines for Multinational Enterprises on Responsible Business Conduct. OECD Publishing. https://www.oecd.org/content/dam/oecd/en/publications/reports/2023/06/oecd-guidelines-for-multinational-enterprises-on-responsible-business-conduct_a0b49990/81f92357-en.pdf United States. (1983). Federal Trade Commission. Policy Statement on Deception. https://www.ftc.gov/system/files/documents/public_statements/410531/831014deceptionstmt.pdf Footnotes [1] Mukherjee, S. (2025). Social media and e-commerce: A study of the legal issues in influencer marketing and online advertising with special reference to India. International Journal for Multidisciplinary Research, 7(3), 1-12. https://doi.org/10.36948/ijfmr.2025.v07i03.45519. [2] European Union. Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act). Official Journal of the European Union, L 277. http://data.europa.eu/eli/reg/2022/2065/oj. [3] European Union. Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market (Unfair Commercial Practices Directive). Official Journal of the European Union, L 149, 22-39. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32005L0029. [4] Federal Trade Commission. (1983). Policy Statement on Deception. https://www.ftc.gov/system/files/documents/public_statements/410531/831014deceptionstmt.pdf. [5] United Kingdom. (2008). Consumer Protection from Unfair Trading Regulations 2008, SI 2008/1277. https://assets.publishing.service.gov.uk/media/5a74d389e5274a3cb28677f4/oft1008.pdf. [6] Organisation for Economic Co-operation and Development. (2023). OECD Guidelines for Multinational Enterprises on Responsible Business Conduct. OECD Publishing. https://www.oecd.org/content/dam/oecd/en/publications/reports/2023/06/oecd-guidelines-for-multinational-enterprises-on-responsible-business-conduct_a0b49990/81f92357-en.pdf. [7] Babayev, J. (2023). Safeguarding consumer rights in the digital age: Challenges and strategies. Uzbek Journal of Law and Digital Policy, 1(1), 1-11. https://doi.org/10.59022/ujldp.70. [8] European Union. Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act). Official Journal of the European Union, L 277. http://data.europa.eu/eli/reg/2022/2065/oj [9] European Union. Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act). Official Journal of the European Union, L 277. http://data.europa.eu/eli/reg/2022/2065/oj [10] Algeria. (2018). Law No. 18-05 of May 10, 2018, relating to electronic commerce. Official Gazette of the People’s Democratic Republic of Algeria (JORA), No. 28. https://www.joradp.dz/FTP/jo-francais/2018/F2018028.pdf. [11] Algeria. (2009). Law No. 09-03 of February 25, 2009, relating to consumer protection and the repression of fraud. Official Gazette of the People’s Democratic Republic of Algeria (JORA), No. 15. https://www.joradp.dz/FTP/jo-francais/2009/F2009015.pdf. [12] Kettab, Z. (2025). Legal mechanisms for consumer protection under Algerian e-commerce law. Journal of Law and Sustainable Development, 13(1), 1-18. https://doi.org/10.55908/sdgs.v13i1.4261. [13] Ahmed, A. M. A., Othman, A. K. (2024). The effect of false advertising on consumer online purchase behavior with mediating effect of e-WOM: Consumer in Malaysia. Information Management and Business Review, 16(2(I)S), 115-128. https://doi.org/10.22610/imbr.v16i2(I)S.3774. [14] Lasami, R. B. D., Kahoul, W. (2022). Misleading electronic advertising: A new side of cybercrime (in Arabic). Journal of Law and Political Science, 9(1), 714-728. https://asjp.cerist.dz/en/article/186120. [15] Law No. 18-05, Art. 6. [16] Abu-Kaif, A. M. (2023). Consumer protection from misleading electronic advertising: A comparative study (in Arabic). Journal of Legal and Economic Research, 13(86), 1-41, 4. https://doi.org/10.21608/mjle.2023.340162. [17] Law No. 18-05, Art. 30. [18] Law No. 09-03, Art. 69. [19] Algeria. (2004). Law No. 04-02 of June 23, 2004, defining the rules applicable to commercial practices (as amended). Official Gazette of the People’s Democratic Republic of Algeria (JORA), No. 41. https://www.joradp.dz/FTP/jo-francais/2004/F2004041.pdf. [20] European Union. Directive 2005/29/EC of the European Parliament and of the Council of 11 May 2005 concerning unfair business-to-consumer commercial practices in the internal market. Official Journal of the European Union, L 149, 22-39. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:32005L0029. [21] Yi, W., Li, Z. (2025). Mapping the scholarship of the regulation of dark patterns: A systematic review of concepts, regulatory paradigms, and solutions from law and HCI perspectives. Computer Law & Security Review, 59, 106225. <https://doi.org/10.1016/j.clsr.2025.106225>. [22] European Union. Regulation (EU) 2022/2065 of the European Parliament and of the Council of 19 October 2022 on a Single Market for Digital Services and amending Directive 2000/31/EC (Digital Services Act). Official Journal of the European Union, L 277. http://data.europa.eu/eli/reg/2022/2065/oj. [23] European Union. Regulation (EU) 2022/2065 (Digital Services Act), Annex I. [24] France. (n.d.). Code de la Consommation (Légifrance). Retrieved on December 16, 2025. https://www.legifrance.gouv.fr/codes/texte_lc/LEGITEXT000006069565. [25] Federal Trade Commission. (1983). Policy Statement on Deception. https://www.ftc.gov/system/files/documents/public_statements/410531/831014deceptionstmt.pdf. [26] United States. (1983). Federal Trade Commission. [27] United Kingdom. (2008). The Consumer Protection from Unfair Trading Regulations 2008 (SI 2008/1277). Reg. 5(2)(a)(b). https://www.legislation.gov.uk/uksi/2008/1277. [28] France. Code de la Consommation (Légifrance). [29] Federal Trade Commission. (1983). [30] Shaoua, H. (2015). Consumer protection from the crime of misleading or false commercial advertising (in Arabic). Journal of Legal Studies, 23, 147-158. https://asjp.cerist.dz/en/article/64272. [31] Alaoua, H., Azzaouz, S. (2017). Criminal protection of the consumer from unfair practices (in Arabic). Journal of Rights and Freedoms, 5(1), 221-246. <https://asjp.cerist.dz/en/article/32913>. [32] Petty, R. D. (1996). The law of misleading advertising: An examination of the difference between common and civil law countries. International Journal of Advertising, 15(1), 33-47. https://doi.org/10.1080/02650487.1996.11104632. [33] Bouguendoura, A. H. (2018). Controls for criminalizing false advertising in the commercial advertising market (in Arabic). Hawliyat Jamieat Qalama lil-Ulum al-Ijtimaiyahwa al-Insaniyah, 12(1), 165-182. https://asjp.cerist.dz/en/article/56298. [34] Shaoua (2015), 150. [35] Ibid., 152. [36] Ibid., 154. [37] Ibid., 156. [38] Law No. 04-02, Art. 28. [39] Santiago, M. R., Alves, D. S. (2019). A legal analysis of surrogate advertising and its accountability in Brazil in the consumer society paradigm. Revista Jurídica, 2(55), 106-132. [40] Golecki, M. J., Tereszkiewicz, P. (2019). Taking the prohibition of unfair commercial practices seriously. In Mathis, K., Tor, A. (Eds.). New developments in competition law and economics (pp. 91–106). Springer. https://doi.org/10.1007/978-3-030-11611-8_5. [41] Bliman, Y. (2009). False or misleading advertising (in Arabic). Journal of Humanities, 20(4), 289-313, 294. https://asjp.cerist.dz/en/article/3553. [42] Meenakumary, S. (2021). Legal regulation of false and misleading advertisements with special reference to Consumer Protection Act, 2019. Commerce & Business Researcher, 14(2), 53-61, 56. https://doi.org/10.59640/cbr.v14i2.53-61. [43] United Nations Conference on Trade and Development. (December 22, 2015). United Nations Guidelines for Consumer Protection. United Nations. https://unctad.org/system/files/official-document/ditccplpmisc2016d1_en.pdf. [44] Organisation for Economic Co-operation and Development. (March 24, 2016). Recommendation of the Council on Consumer Protection in E-commerce (OECD/LEGAL/0422). OECD Publishing. https://doi.org/10.1787/9789264255258-en. [45] Law No. 09-03, Art. 17. [46] Law No. 18-05, Art. 30. [47] Medjahed, H. (2025). Consumer protection mechanisms from misleading electronic advertising in light of Algerian legislation. The International Tax Journal, 52(6), 3208-3215. https://internationaltaxjournal.online/index.php/itj/article/view/315. [48] France. Code de la Consommation, Art. L121-1. [49] United States. Federal Trade Commission Act, 15 U.S.C. § 45. [50] Egypt. (2018). Consumer Protection Law No. 181 of 2018 (in Arabic). WIPO Lex. <https://www.wipo.int/wipolex/ar/legislation/details/19866>. [51] Egypt. (2018). Consumer Protection Law No. 181 of 2018, Art. 15. [52] Japan. (1962). Act against Unjustifiable Premiums and Misleading Representations No. 134 of May 15, 1962 (as amended). https://www.japaneselawtranslation.go.jp/en/laws/view/2303/en. [53] European Union. Regulation (EU) 2022/2065 (Digital Services Act), Art. 25. [54] Organisation for Economic Co-operation and Development. (2023). Chap. VIII. [55] Council of Europe. (1998). Protocol amending the European Convention on Transfrontier Television (ETS No. 171). Strasbourg, October 1, 1998. https://rm.coe.int/168007f2cd. [56] Dickinson-Delaporte, S., Mortimer, K., Kerr, G., Waller, D. S., Kendrick, A. (2020). Power and responsibility: Advertising self-regulation and consumer protection in a digital world. Journal of Consumer Affairs, 54(2), 675-700. https://doi.org/10.1111/joca.12295. [57] Mukherjee. (2025). [58] Chawla, N., Kumar, B. (2022). E-commerce and consumer protection in India: The emerging trend. Journal of Business Ethics, 180, 581-604. https://doi.org/10.1007/s10551-021-04884-3. [59] Liu, H. (2025). Consumer rights protection law in the governance of false advertising: A case study of live streaming commerce. Scientific Journal of Humanities and Social Sciences, 7(8), 117-122. https://doi.org/10.54691/g623mg68. [60] Mupangavanhu, Y., Kerchhoff, D. (2023). Online deceptive advertising and consumer protection in South Africa: The law and its shortcomings? De Jure Law Journal, 56, 86-106. https://doi.org/10.17159/2225-7160/2023/v56a7. [61] Dickinson-Delaporte et al. (2020). [62] Abdullah, A. G. B. (2015). Commercial law and consumer protection (in Arabic). Dar Al Nahda Al Arabiya, 233. [63] Al-Sanhuri, A. (2011). The intermediary in explaining the new civil law: Sources of obligation, Vol. 1 (in Arabic). Dar Nahdat Misr, 89. ISBN 9786144010037. [64] Abdullah. (2015), 235. [65] France. Code de la Consommation (Légifrance). [66] United States. Federal Trade Commission Act, 15 U.S.C. § 45. [67] Egypt. (2018). Consumer Protection Law No. 181 of 2018, Art. 9. [68] Advertising Standards Authority. (2021). The UK Code of Non-broadcast Advertising and Direct & Promotional Marketing (CAP Code). https://www.asa.org.uk/codes-and-rulings/advertising-codes/non-broadcast-code.html. [69] Chowdhury, J. (2025). Strengthening e-commerce consumer protection in Bangladesh: Legal challenges, regulatory gaps, and reform strategies. International Journal of Research and Innovation in Social Science, 9(1), 2548-2567. https://doi.org/10.47772/IJRISS.2025.9010206. [70] Zulham, Z. (2023). A critical review of Indonesian online consumer protection: Online shopping, false advertising, and legal protection for Indonesian e-commerce customers. Journal of Law and Sustainable Development, 11(5), 1-15. https://doi.org/10.55908/sdgs.v11i5.740. [71] Algeria. (1990). Executive Decree No. 90-367 of November 10, 1990 (in Arabic), Art. 13. Official Gazette of the People’s Democratic Republic of Algeria (JORA), No. 50. https://www.joradp.dz/FTP/jo-arabe/1990/A1990050.PDF; Algeria. (2013). Executive Decree No. 13-378 of November 9, 2013 (in Arabic), Art. 56. Official Gazette of the People’s Democratic Republic of Algeria (JORA), No. 58. https://www.joradp.dz/FTP/jo-arabe/2013/A2013058.pdf. [72] France. Code de la Consommation, Art. L132-2 (Légifrance). [73] Lakhal, I. E., Islam, S. (2023). Consumer protection from misleading electronic advertising under Law 18-05 (in Arabic). Al-Hikma Journal for Media and Communication Studies, 11(3), 54-74, 68. https://asjp.cerist.dz/en/article/231633. [74] Algeria. Law No. 18-05, Art. 48. [75] Japan. (1962). Act against Unjustifiable Premiums and Misleading Representations No. 134.
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Criminalization of Electronic Begging in Algerian Legislation
This study addresses a very important topic represented in electronic begging as a dangerous and emerging global phenomenon based on deception and fraud, which has developed instantaneously using internet technologies and various modern methods, as a result of the misuse of technology, where the electronic beggar takes the digital space as a tool to achieve illegal goals, and to appeal to users through social media platforms, and due to the seriousness witnessed by this crime, it has become necessary to search for mechanisms to deter the electronic beggar from different age groups, including children, women, and the elderly, who is begging to reduce this criminal phenomenon of a social nature, the Algerian legislator has criminalized any criminal behavior that would exploit others to obtain material benefits similar to comparative legislation, and to impose deprivation of liberty penalties under the provisions of the Algerian Penal Code with its amendments. Keywords: Electronic begging, virtual platforms, technology, elements of crime, punishment. Introduction Due to the digital transformation and the subsequent huge changes in the social lifestyle, the individual has been looking for ways to earn money regardless of its legitimacy, as cybercriminal phenomena known as ‘electronic begging’ have spread, using modern fraudulent methods in a virtual space that witnesses a remarkable presence of electronic beggars. In fact, this new method of begging became a global phenomenon in 2009 as an independent sector on the internet, where it is easy for anyone to own a certain domain for advertising and electronic begging[1] and to be treated as a virtual job that is completely contrary to social values and threatens the stability of security and public order within societies, especially the youth of their nationality by impersonating users of various social media platforms with anonymous identities, according to recent statistics. What is the purpose behind attracting this group, which uses false justifications, except to earn money through illegal means and to finance organized groups as the most dangerous forms of crime, as a large percentage of people suffer from the exploitation of these organized criminal groups, especially children, as the beggar child is vulnerable to delinquency and exploitation under the weight of difficult economic conditions,[2] and the Algerian legislator has given special legal protection to this vulnerable group under the provisions of Law No. 15-12 of July 15, 2015 on Child Protection.[3] This has become a necessity for the intervention of the Algerian legislator, as in other comparative legislations, and its regulation of the provisions criminalizing electronic begging in the Algerian Penal Code, without sufficing with articles 195 and 196 of the Penal Code, He neglected to mention the deterrent aspect of the crime of electronic begging, which has been developing with the development of social media platforms in recent times. Purpose and Objectives The purpose of this study, which includes a recent research topic in identifying the current phenomenon of cyber begging, is to address whether the provisions of the Algerian Penal Code are sufficient to criminalize the dangerous social phenomenon ‘cyber begging’, which has been and continues to be on the rise as a result of the development of social media technologies and its comparison with the legislative frameworks of other Arab countries (Saudi Arabia, the United Arab Emirates, and Jordan). The study aims to analyze the current legal framework, assess its effectiveness in addressing cyber begging, and identify potential areas for legislative reform in Algeria, in order to develop a legal framework for the crime of cyber begging as a distinct cybercrime in the Algerian criminal code. Research Problem Through this study, we seek to identify the legal texts regulating the crime of electronic begging under Algerian law by evaluating the basic aspects contained in the Algerian Penal Code, which prompts us to pose the problem of the study as follows: Are the legal texts contained in the Algerian Penal Code sufficient to criminalize the phenomenon of electronic begging? Shouldn’t the Algerian legislature develop a strategy to curb this particular cybercriminal phenomenon? To address this problem, we have decided to divide the subject of the study, which is very important in our real life, into two main axes, as follows: The Conceptual Framework of Electronic Begging; Elements of the Crime of Electronic Begging and the Punishment Prescribed for it. Methodology The study applies a qualitative legal research methodology based on the analysis of the content of the provisions of the Algerian Penal Code as amended in 2009 and 2014, especially the legislative texts relevant to the subject of the research, and here we will limit this study between 2014 and 2025 in line with the amendments that occurred to the Algerian Penal Code under the aforementioned Decree No. 66-156, and describe the phenomenon of electronic begging in Algerian society, without neglecting to study the repercussions of this criminal phenomenon on children who are at risk, the Algerian legislator has taken an interest in ensuring legal protection by enacting Law No. 15-12 on child protection in particular, and this approach is complemented by comparing the components of Algerian legal texts only with some of the legislations of Arab countries (Saudi Arabia, the United Arab Emirates, and Jordan) that have the precedence in criminalizing electronic begging under special legal provisions, especially the Saudi Anti-Begging Law, Jordanian Law, and the UAE Anti-Begging Law, which dealt with the phenomenon of electronic begging and came with deterrent sanctions, unlike the Algerian legislator, who we noted the extent of his inadequacy in regulating the provisions of electronic begging. Thus, based on these common research approaches, we can reach comparative theoretical, descriptive and analytical insights, by highlighting the absence of explicit legislative provisions in Algeria compared to other Arab countries, which embodies one of the shortcomings while identifying the legal gaps contained in the Algerian Penal Code, and considering the extent to which its amendments respond to modern technology that has contributed to the development of traditional crime. No. 66-156 containing the Algerian Penal Code, related cybercrime laws, and secondary literature covering the period under analysis of developments 2014-2025. 1. The Conceptual Framework of Electronic Begging Electronic begging is one of the modern social problems that is similar to the traditional known begging, but it is committed in a modern technical way, which makes it of an electronic nature, so let’s divide this topic into two demands, in the first demand, we deal with the concept of electronic begging, and the second demand we have dedicated to talking about the causes of the phenomenon of electronic begging and its forms: 1.1 The concept of electronic begging Through this requirement, we will talk about the concept of electronic begging, where in the first section we will discuss the definition of electronic begging, while the second section will be devoted to talking about the characteristics of electronic begging: 1.1.1 Definition of electronic begging Begging is a dangerous global social phenomenon,[4] which spreads across all societies, where the electronic beggar uses the digital space to achieve illegal goals, and to identify this emerging phenomenon, we must define it in terms of terms and law based on various comparative legislations: Terminological and jurisprudential recognition Begging is defined in terms of begging and asking for charity from others without financial compensation or for a symbolic financial compensation,[5] as defined by a part of jurisprudence as “the illegal criminal behavior carried out by the offender, which is represented in begging and asking for charity from others without compensation or for a trivial fee that was not requested by that third party, which entails a penalty or precautionary measures by law”.[6] As for electronic begging, it is a form of modern begging, which is an electronic version similar to traditional begging, asking for money behind screens using electronic methods through social media platforms such as electronic text messages and fake personal photos to bring the affection of its users in a short period of time to collect money, where the electronic beggar pretends to be financially helpless,[7] asks for help and explains his economic conditions, taking advantage of his presence in the virtual space.[8] with an anonymous identity without revealing his personal data, as his details cannot be identified.[9] It is noted that the electronic beggar does not exert any personal effort to endure hardship to obtain legitimate money, which constitutes a burden on society and negatively affects individual income, as a result of not looking for a job opportunity, and crime rates increase. Legal definition The definition of begging has received considerable attention in the light of comparative legislation, as Article 1/5 of the Saudi Anti-Begging Law of September 16, 2021 defines it as “a person who begs for the money of another without consideration or for an unintended consideration in cash or in kind, directly or indirectly, in public places, shops, or in modern means of technology and communication, or by any means whatsoever”.[10] Referring to the UAE Anti-Begging Law No. (31) of 2021 promulgating the Crimes and Penal Code[11] under the provisions of Article 475 in its first paragraph, begging is defined as “begging for the purpose of obtaining a material or in-kind benefit in any form or means”. It is clear to us through these definitions that the comparative legislation has come to criminalize this phenomenon of begging in general and electronic begging in particular, as evidenced by its reference to the occurrence of this crime in a traditional or technical, or modern way through the use of modern electronic means.[12] As for the Algerian legislator, the provisions of the crime of traditional begging were regulated in the Penal Code No. 14-01 of February 4, 2014,[13] but it omitted the definition of begging; this necessitates the regulation of the provisions of traditional begging and begging in its modern form with a special legal system within the provisions of the Algerian Penal Code, the latter of which ignores the regulation of the crime of electronic begging, unlike the comparative legislation, and in accordance with article 195 of Law No. 82-04 of February 13, 1982 it considered a person who used to practice begging anywhere despite the availability of the means of subsistence, or who can obtain it by work or any other lawful means. In view of the fact that the crime of begging is committed by any person, whether fully or incompetent, and the latter refers to a child who has been exploited by others to earn money illegally, the Algerian legislature stipulates in Law No. 15-12 on the protection of the child that begging or exposing the child to begging is one of the cases that endanger the child in accordance with the provisions of article 2/2 of the same law.[14] 1.1.2. Characteristics of electronic begging Electronic begging is distinguished from other traditional criminal phenomena by the following: The phenomenon of electronic begging is based on ‘electronic fraud’ and exploitation of others to achieve financial interests, where the electronic beggar selects influential phrases, designs videos and photos, and publishes them widely, to attract the affection of users to obtain financial donations;[15] Electronic begging committed on Facebook and Twitter platforms with private tweets is considered one of the crimes that cross borders are difficult to prove and do not stop at a specific country,[16] as the information society does not recognize geographical borders, as borders have become intangible due to the use of the information network,[17] similar to cybercrimes that are committed without the control of the security services; Electronic begging is considered one of the safe digital criminal phenomena for the anonymous beggar, whose real identity cannot be revealed and tracked, due to the concealment of his identity by using pseudonyms and fake photos,[18] unlike some countries, including Mexico, which require the electronic beggar to reveal their real identity so that he is not a victim of deception and electronic fraud;[19] The cyber beggar uses the internet to penetrate accounts and personal data,[20] and conduct electronic espionage on them by impersonating false identities through several electronic applications in pages and groups to interfere in the privacy of users, getting closer to them, and identifying their financial and social status to obtain personal information such as address, credit cards, or bank balance, etc;[21] The reliance of fraudulent beggars on the public publication of personal facts of privacy,[22] including the fabrication of disabilities, the disclosure of a serious illness and the request for treatment from it by uploading prescriptions, medical reports, fake official papers for fake accidents, electricity or gas bills, or collecting donations for the construction of a mosque, etc.[23] or to disclose the case of his inability to pay debts.[24] The transformation of electronic begging from an individual act to a collective act carried out by organized criminal groups that violate human rights, in exchange for funds called the ‘begging mafia’,[25] which represent electronic gangs that work to attract professionals of electronic begging,[26] whether or people suffering from diseases or illegal immigrants and events that insult their dignity by beating,[27] mistreating and maiming them to collect funds through the internet.[28] This puts them at risk of deviation, exploitation, or other risks, and they use communication through web services to bring in large capital and carry out charitable projects.[29] From this point of view, we adapt the crime of electronic begging to organized crime, which negatively affects society, making the foreign investor not open investment projects in countries where electronic begging is prevalent. 1.2. The causes and forms of electronic begging Through this requirement, we will address the motives and forms of electronic begging, which we divide into two sections, so that we can identify, through the first section, the causes of electronic begging, and the second section we have dedicated to talking about the forms of electronic begging: 1.2.1 Causes of electronic begging The causes of electronic begging are numerous among social, economic, and political reasons, which push individuals of different age groups to commit this new crime, so we summarize these reasons as follows: The misuse of electronic technical means and virtual platforms by the electronic beggar who does not communicate with the outside world, which results in the adaptation of electronic begging to cybercrime, as a result of the increase in the frequency of electronic criminal behaviors by its perpetrators;[30] The desire of the electronic beggar to search for any means to bring a livelihood, even at the expense of his humanitarian and religious principles, makes him vulnerable to exploitation, and to simulate the developments of communication through cyberspace to earn money; The spread of social ills and the deviation of the individual’s behavior that make the beggar practice begging in the virtual space out of need,[31] especially the phenomenon of youth using drugs, is considered a direct cause of the practice of begging, as some members of society practice electronic begging to get money to buy it;[32] Lack of family support systems (family and friends)[33] as a result of family disintegration, which leads to the deviation of the individual’s behavior and the exploitation of his social or health conditions to achieve financial interests,[34] or to receive treatment, open a small business, or obtain housing; Some members of the community have succumbed to these beggars out of their favor and made it a habit in compliance with the words of Allah Almighty, “But the beggar does not flow” (Surah Al-Duha, verse 10), which results in a loss of trust in the real needy and a lack of social solidarity,[35] or rather a lack thereof, by distributing financial donations to the needy class, In fact, electronic begging distorts the image of charitable institutions and reduces their credibility, as individuals are reluctant to donate for fear of electronic fraud.[36] 1.2.2 Forms of electronic begging As a result of the technological wealth in various fields, people have exploited this development in negative ways due to the deterioration of economic conditions, where the electronic beggar takes multiple innovative methods to beg through the internet, through social media, by asking for money by email, WhatsApp, and Facebook,[37] where the forms of electronic begging vary as follows: - Begging through internet rooms: The e-beggar uses the chat box to participate in the collection of money and financial aid by poker players through the internet, who pay huge profits to the beggars; - Begging through chat rooms: Young people use chat rooms and transfer money via fake accounts in exchange for fake relationships;[38] - Begging through live broadcasting: The electronic beggar resorts to live broadcasting through voice or video communication through electronic platforms,[39] in exchange for concessions and behaviors made by the broadcaster or the supporter of the live broadcast, we give the example of the followers through the TikTok application who are famous for electronic begging due to the advantages and financial gains with quick profit that this application provides;[40] - Begging via email: This type of electronic begging is the most common form, as the electronic beggar targets certain groups and sends annoying emails that deceive the sender that he needs money to face special social conditions; - Commenting through electronic publications: The electronic beggar takes the opportunity of a lot of comments about a certain electronic post through virtual platforms,[41] where the beggar takes advantage of some activists on social media sites in order to call for fundraising and achieve personal profit.[42] 2. Elements of the Crime of Electronic Begging and the Punishment Prescribed for It States are developing a strategy aimed at enacting legislation at the national level to combat the crime of electronic begging, as it is a major challenge for them, despite the Algerian legislator’s neglect to talk about the phenomenon of electronic begging over the internet using modern methods as one of the cybercrimes punishable by law, unlike traditional begging, Let us divide this topic into two demands, and we try to adapt through the first requirement the crime of electronic begging and its elements, while in the second demand, we talk about the punishment prescribed for the crime of electronic begging. 2.1 Adapting the crime of electronic begging and its elements Through this requirement, we focus on adapting the description of the crime of electronic begging between a traditional crime and a cybercrime, and identifying the pillars on which this crime is based, through two branches: 2.1.1 Adaptation of the crime of electronic begging The Criminal Code neglects to regulate the criminalization of electronic begging provisions, which makes it impossible to issue sentences against the perpetrators, where the electronic beggar who violates the privacy of individuals escapes punishment,[43] and is classified as electronic or virtual fraud, whose purpose is to seize the money of others by deception, where the cybercriminal commits acts by using computerization aimed at obtaining a financial privilege.[44] It should be noted that the adaptation of the description of the crime of electronic begging as electronic fraud falls within the framework of cybercrime as an integral part of it, which is committed as a result of the illegal use of the digital communication network (internet), with the intervention of a cybercriminal to carry out the criminal act, which results in causing damage to the victims of begging as a result of the robbery of their money in fraudulent ways[45] Consequently, electronic begging is described as a misdemeanor that includes the set of legally sanctioned acts and activities that link the criminal act to technology.[46] 2.1.2 Elements of the crime of electronic begging The crime of electronic begging is subject to the existence of three pillars, namely the “legal element”, which is the basis of criminalization and punishment, the “material element”, which is represented by the act, the result and the causal relationship, and the “moral element”, which is represented by the will that is associated with the act, which consists of the elements of science and will, as these elements will be dealt with as follows: The legal element of the crime of begging The rule of “no crime and no punishment except by text” is one of the basic principles stipulated in most national constitutions and legislations, where the legal or legal element of the crime requires the existence of a legal text that indicates the act constituting the crime as an illegal act that is criminalized by law without giving it any reason for permissibility and specifies the punishment for the perpetrator of such criminal act or behavior, and this is called the principle of legality.[47] The material element of the crime of begging The material element of the traditional crime is positive material behavior that leads to the perpetrator committing a criminal activity, using methods of publishing content about the material needs of individuals or donation institutions to provide a helping hand and exploiting their affection, by begging or requesting a material donation remotely, even if by pretending to achieve financial demands, regardless of whether the offender achieves a material or in-kind benefit. To achieve this, it is assumed that modern technological means, including a computer connected to the internet, are used in a virtual space, which causes harm to the offender himself and his dignity, and inflicts material and moral damage on the victim, once he asks for charity and exploits him financially, He practices this criminal behavior taking advantage of his own circumstances.[48] Based on this, the cybercrime of begging does not differ from the traditional crime of begging except in terms of the means of committing it, where the crime of electronic begging is committed by intelligent people through the use of virtual mechanisms,[49] which emphasize the direction of the preconceived intention of the perpetrator towards committing the act of virtual fraud,[50] unlike the traditional crime of begging, which is committed by people in public places. Therefore, it is sufficient for the perpetrator to commit purely criminal behavior in the crime of electronic begging, On the basis that it is a formal crime whose commission does not require the achievement of the result or the achievement of the purpose of the criminal conduct, and because it is considered a dangerous crime that is committed as soon as the dangerous behavior is available without the requirement that a specific result be achieved, the behavior represented in begging is not productive of any criminal effect (consequence), and there is no causal link between the behavior and the criminal result that may begin and end in a short time, which may begin and end in a short time or remain continuous and related to the criminal activity. This entails that criminal liability arises as soon as assistance is sought; without the requirement of achieving a specific result, and it follows that the importance of achieving the criminal result or not in the crime of electronic begging is that there is no need to search for the causal relationship between the result and the criminal behavior,[51] which requires proving this relationship and that the money in his possession resulted from the act of virtual begging, otherwise The perpetrator could not be held criminally accountable for the crime of begging. The moral element of the crime of begging The moral element plays an important role in determining the legal adaptation of the criminal incident, when the offender’s intention to commit the crime of electronic begging is available, which results in intentional crimes, in which the moral element is verified by the existence of the general criminal intention of the knowledge and will in the offender’s psyche,[52] we can summarize the elements of knowledge and will as follows: Science: Knowledge is a psychological state of mind that requires the offender to be aware of all the legal elements of the crime, so that the incident is given its legal description, as the offender is assumed to be aware of the material nature of the criminal act,[53] knowledge of the elements of the crime, its seriousness, and the tendency of his will to commit it contrary to the legal text, intending by his criminal behavior to obtain the victims’ money by illegal means,[54] (However, if it is proven that the offender intended to use the property of others and return it without showing the intention to seize it, the criminal intent is eliminated because the beggar does not have the criminal intention;[55] The will: The will is an engine towards carrying out criminal behavior and achieving the criminal result, the intention and will of the offender towards collecting money,[56] which calls for the integrity of the will of the electronic beggar and its absence from defects of the will to realize the truth of his actions, and the direction of the will of the perpetrator towards committing the criminal act and achieving the result, and his intention towards exploiting the victims, by putting pressure on their psyche,[57] using software and information technology or the internet through various means of communication,[58] but the moral element of the crime of electronic begging is not achieved Unless the offender’s will is proven, but he is forced to commit the criminal conduct under the influence of physical or moral coercion.[59] 2.2 The penalty prescribed for the crime of electronic begging In this demand, which is also divided into two sections, we will deal with the position of the Algerian legislator regarding the penalty prescribed for the crime of electronic begging through the first section, and the position of the comparative legislation in the second section: 2.2.1 The position of the Algerian legislator The Algerian legislature addressed the phenomenon of begging by stipulating the criminalization and punishment of begging in the Algerian Penal Code,[60] where it addressed the provisions of the crime of traditional begging in its fourth section entitled “Begging and the child” under the title of Chapter One, Felonies and Misdemeanors against Public Objects, under Chapter VI, Felonies and Misdemeanors against Public Security, Article 195 of Law No. 82-04 of 13 February 1982[61] that “anyone who is accustomed to practicing begging anywhere shall be punished by imprisonment from (1) months to (6) six months, even though he has the means of subsistence or can obtain them by work or in any other lawful way”. It is clear from the text of this article that the criminalization of the phenomenon of begging in the Penal Code is sufficient to give the act a criminal character, as begging is considered a crime punishable by a specific legal provision, but it stipulates the following: - Linking the character of criminalization to habituation and the repetition of practicing criminal behavior, so that he is a profession regardless of the place, whether private or public, or whether or not he initiates trial proceedings. In the sense of violation, if a person is arrested or caught begging for the first time and legal proceedings have been taken against him, his social, health, psychological, and economic status must be studied to reveal the reasons that led him to commit this criminal behavior.[62] - The existence of the means of coexistence in the person who commits this act, or can obtain them through work or through another project. - The beggar receives money free of charge, meaning that the person’s receipt of money as a result of the display of commercial materials denies the crime of begging.[63] Based on the text of article 196 bis of the same law, which states that the offences stipulated in the aforementioned article do not affect the category of juveniles who have not yet reached the age of eighteen (18), except with regard to measures of protection and refinement, it is clear that the Algerian legislator has explicitly or implicitly referred to the penalties imposed on the crime of traditional begging, which explains his neglect to pay attention to the seriousness of the crime of begging in its modern form. However, the Algerian legislature criminalized this conduct in the Penal Code, as amended and supplemented by Law No. 14-01 of February 4, 2014 containing the amended Penal Code, when the crime was committed by using or exposing a minor to begging, as article 195 bis stipulates that anyone who begs for a minor under the age of 18 or exposes him to begging shall be punished by imprisonment from six (6) months to two (2) years, and the penalty will be doubled when the perpetrator is an asset of the minor or any person who has authority over him. This is the same meaning referred to in article 303 bis 04 in its second paragraph of Law No. 09-01 of February 25, 2009,[64] which includes the Algerian Penal Code, which focuses on the crime of exploiting others in begging, and increases the penalty in the case of begging with a child, where begging with children is considered an inevitable consequence of human trafficking crimes, where children trafficked are exploited by criminal gangs With the aim of committing other crimes, including electronic begging with the aim of earning money for organized groups. Accordingly, we conclude that the Algerian legislature is relatively interested in the phenomenon of begging in its new dress through virtual platforms by asking for help from others to obtain financial benefit, which calls for tightening penalties to curb this criminal phenomenon, which is still increasing. 2.2.2 The position of comparative legislation In this section, we will discuss the presentation of the various provisions of the comparative legislation regarding the determination of the penalty imposed on the perpetrators of the crime of electronic begging: Electronic begging in the Kingdom of Saudi Arabia The Saudi legislator considered cases of asking for aid through social media to be classified as a crime, as Article 02 of of the Saudi Anti-Begging Law stipulates that “begging in all its forms and forms, regardless of its justifications, is prohibited”, it is working to challenge this criminal phenomenon by allocating platforms for donations and establishing charitable associations, and has also assigned tasks to the Ministry of Human Resources and Social Development in accordance with Decree No. 203 of April 22, 2017, and adopting organizational measures to combat the phenomenon by studying the social, economic and psychological status of the electronic beggar, directing him to government charitable institutions or appointing him to work to obtain financial compensation, in response to the pretexts that push him towards begging.[65] Electronic begging in Jordan The Jordanian legislature has worked to protect communities from the repercussions of electronic begging, as it granted the Jordanian Ministry of Social Development, in a decision issued in 2019[66] with all the powers that enable it to pursue all unlicensed donations through social media, in cooperation with the Ministry of Finance and Endowments, and other concerned authorities.[67] Electronic begging in the Emirate of Abu Dhabi Article 51 of Federal Decree-Law No. (34) of 2021 on Combating Rumors and Cybercrimes stipulates that anyone who commits the crime of begging using information technology means shall be punished by imprisonment for a period not exceeding three (3) months, and a fine of not less than 10,000 dirhams, and the second paragraph of the same article stipulates that anyone who uses information technology means to seek help from federal or local government entities, or one of their officials, in a bad way, or contrary to the truth, shall be punished with the same penalty.[68] Conclusion At the conclusion of this study, we say that electronic begging is a new face of traditional begging based on deception, which has spread very quickly in most countries of the world, and is distinguished from it in that it is committed in a modern technical manner, and among our findings are the following: -The lack of an explicit legal provision criminalizing the phenomenon of electronic begging, similar to traditional begging, is a legal loophole in Algerian legislation; -We adapt the crime of electronic begging to be an electronic crime based on electronic fraud, given the means by which the crime is committed through the internet; -The multiplicity of ethical, social, economic, and political reasons that drive the commission of the crime of electronic begging. -The expansion of the personal scope of the perpetrators of the crime of electronic begging from a single natural person to organized criminal groups (undercover gangs) that use begging money to achieve illegal ends and collect profits at the expense of others. Among the recommendations we suggest: -The Algerian legislature has enacted special legal provisions to combat the crime of electronic begging by making a legislative amendment that criminalizes acts of begging committed using social media platforms; -The Algerian legislature explicitly stipulates the penalties that criminalize electronic begging and the severity of the punishment for deprivation of liberty that is commensurate with the gravity of the crime committed; -We call for the use of various technical and technological means to raise smart awareness among communities about the seriousness of the crime of electronic begging and to report it, using smart applications similar to some Arab countries, including the United Arab Emirates, through a smart application ‘Combat Begging’; -Raising awareness about the misuse of the internet in committing the crime of electronic begging through awareness programs; -Encouraging humanitarian work and activating the role of charitable institutions and voluntary bodies, to care for needy social groups with limited income and facilitate the procedures of benefiting from these charitable institutions; -Influenced by Arab International Experiences and cooperation in unifying programs to combat electronic begging locally, regionally, and internationally; -Spreading the culture of reporting on entities that invest in needy families and defaming them through published videos and photos; -Using artificial intelligence technologies to prevent illegal campaigns calling for the commission of cybercriminal behaviors; -Intensifying joint efforts on the intervention of the justice agencies to monitor and follow up on electronic beggars; -We call for periodic research on the issue of cyber begging, which is of a transnational nature and has become one of the threats facing societies across the world, due to the nature of cybercrime, which is witnessing continuous development. References Scholarly literature : Adas, N., Mahmoud, M. (2025). Confronting the Phenomenon of Electronic Begging in Palestine between Law and Society. An-Najah University Journal for Research in Humanities, An-Najah National University, Palestine; Agarwal, R. (2021). Child Begging - An Organized Crime?, International Journal of Trend in Scientific Research and Development (IJTSRD), 6(1), India; Al-Awni, H. B. M. (2024). Electronic Begging and its Impact on Social Security in Saudi Society. Journal of the Future of Social Sciences, 18(2), Arab Society for Human and Environmental Development, Egypt; Al-Hashlamon, R. M. A. (2021). Electronic Begging and its Social and Economic Impact on Jordanian Society from the Perspective of a Sample of Facebook Users. Journal of Humanities and Social Sciences, 5(4), Arab Foundation for Science and Research Publishing, Palestine; Al-Khawaldah, M. H., Al-Khseilat, A. A. (2021). The Crime of Begging. A Comparative Study of the Jordanian, French, Belgian and German Laws. Turkish Online Journal of Qualitative Inquiry (TOJQI), 12(3), Turkiye; Al-Sheikh, M. (2022). The Legal Framework of Criminal Responsibility for the Crime of Begging in Palestine. Modern Journal of Legal Studies (2(2), Modern University College, Ramallah, Palestine; El Kadi, N. (2023). Electronic Begging in Algeria between Attracting Social Solidarity and Indicators of Virtual Fraud - An Analytical Study of the Opinions of a Sample of Pioneers, Social Media Sites in the Governorate of Tizi Ouzou. Journal of Humanities and Social Sciences 9(2), University of Constantine 2 Abdelhamid Mehri; Habtoor, F. H. (2023). The Crime of Begging in the Saudi System: A Comparative Study. Journal of Jurisprudence and Legal Research, (40), Al-Azhar University, Egypt; Hamada-Khair, (2022). The crime of electronic begging and ways to confront it. International Journal of Advanced Research on Law and Governance, 4(2), Egypt; Jabbar-Mansour, I. (2025). Means of Management in Addressing the Phenomenon of Electronic Begging (A Comparative Study). International Journal of Humanities and Social Sciences, (64), Lebanon; Kreidan, S. A. B. M. (2022). Criminal Policy in the Face of the Phenomenon of Juvenile Exploitation in Begging. Journal of Media and Arts, 11(1), School of Media and Arts, Libya; Lanane, M. (2019). Begging and Harassment: Case Study: Wilaya of Bejaia. Journal of Social Orbits, (3), Algeria; Mostafa Mohamed Al-Mahrouqi, M. (2023). Milestones of Criminal Policy in the Face of Begging Crimes: An Analytical Study in Comparative Criminal Systems. Journal of Legal and Economic Research, (83), Mansoura University, Egypt; Mufleh Al-Hisban, I, Al-Damour, A. M. (2024). Novel Crimes (Informatics, Cyber, and Electronic). Dar Al-Khaleej for Publishing and Distribution; Nazzal Marji, A. S. (2022). The Position of Islamic Sharia and Emirati Legislation on the Phenomenon of Electronic Begging: A Comparative Study and Approach. Journal of Jurisprudential and Legal Research, (3), Al-Azhar University, Egypt; Sahar, F. M. (2019). Novel Crimes (An In-Depth and Comparative Study of Several Crimes). Arab Center; Salah Rizk, A. G. Y. (2015). Crimes of Economic Exploitation of Children: A Comparative Study. Mansoura: Dar Al-Fikr wa Qanun, 1st; Salman Abdel Jubouri, S. (2014). The Crime of Electronic Fraud (A Comparative Study). Master’s Thesis, Faculty of Law, Al-Nahrain University; Sayed Al-Sayeh-Hamdan, E. (2024). The Phenomenon of Electronic Begging through Live Broadcasting via TikTok from the Perspective of Social Media Users in Egyptian Society: An Ethnographic Study. Egyptian Journal of Media Research, (89); Wiza Belasali, W. (2020). The Criminalization of Begging by Exploiting Children in Algerian Law. Journal of Humanities, 31(4), University of Mentor Constantine; Normative Acts: (1966). Penal Code, Ordinance No. 66–156 of June 8, 1966, Official Journal No. 49, promulgated on June 11, 1966. (1982). Law No. 82-04 of February 13, 1982, amending Ordinance No. 66-156 containing the Penal Code. Official Journal No. 7, 336. (2009). Law No. 09–01 of February 25, 2009 on the Algerian Penal Code. Official Journal No. 15, promulgated on March 8, 2009. (2014). Law No. 14-01 of February 4, 2014 amending and supplementing the Penal Code, Official Journal No.7, promulgated on February 16, 2014. (2015). Law No. 15–12 of 15 July 2015 on Child Protection (begging and child endangerment provisions). Official Journal No. 39, promulgated on July 19, 2015; (2019). Ministry of Social Development Decisions on the control of unlicensed online donations and electronic begging; Saudi Arabia. (2017). Ministerial Resolution No. 203 of April 22, 2017, Ministry of Human Resources and Social Development; Saudi Arabia. (2021). Anti-Begging Law. Decree No. M/20 dated February 9, 1443 AH (September 16, 2021), published on September 24, 2021; United Arab Emirates. (2021). Federal Decree-Law No. 31 of 2021 promulgating the Crimes and Penal Code, issued on December 20, 2021, No. 712, issued on September 26, 2021. United Arab Emirates. (2021). Federal Decree-Law No. 34 of 2021 on Combating Rumors and Cybercrimes, issued on December 20, 2021, No. 712, promulgated on September 26, 2021. Footnotes [1] Al-Hashlamon, R. M. A. (2021). Electronic Begging and its Social and Economic Impact on Jordanian Society from the Perspective of a Sample of Facebook Users. Journal of Humanities and Social Sciences, 5(4), Arab Foundation for Science and Research Publishing, Palestine, 64-66. [2] Salah Rizk, A. G. Y. (2015). Crimes of Economic Exploitation of Children: A Comparative Study. Mansoura: Dar Al-Fikr wa Qanun, 1st ed., 238-247. [3] Algeria. (2015). Law No. 15–12 of 15 July 2015 on Child Protection (begging and child endangerment provisions). Official Journal,. No. 39, promulgated on July 19, 2015. [4] It is worth mentioning that begging means the language of begging in the sense of sharpening, asking and etracting in the sense of asking for gifts and charity, which has its origin in questioning and it is taken from the one who asked and asked what a person asks, as the Almighty said: “I have asked you, O Moses” Surah Taha, verse 36. [5] Salah Rizk, A. G. Y. (2015). op. cit., 247. [6] Al-Sheikh, M. (2022). The Legal Framework of Criminal Responsibility for the Crime of Begging in Palestine. Modern Journal of Legal Studies, 2(2), Modern University College, Ramallah, Palestine, 122. [7] Al-Awni, H. B. M. (2024). Electronic Begging and its Impact on Social Security in Saudi Society. Journal of the Future of Social Sciences, Arab Society for Human and Environmental Development 18(2), Egypt, 10. [8] Habtoor, F. H. (2023). The Crime of Begging in the Saudi System: A Comparative Study. Journal of Jurisprudence and Legal Research, Al-Azhar University, (40), Egypt, 1482. [9] Nazzal Marji, A. S. (2022). The Position of Islamic Sharia and Emirati Legislation on the Phenomenon of Electronic Begging: A Comparative Study and Approach. Journal of Jurisprudential and Legal Research, (3), Al-Azhar University, Egypt, 1780. [10] Saudi Arabia. (2021). Anti-Begging Law. Decree No. M/20 dated February 9, 1443 AH (September 16, 2021), published on September 24, 2021. [11] United Arab Emirates. (2021). Federal Decree-Law No. 31 of 2021 promulgating the Crimes and Penal Code, issued on December 20, 2021, No. 712, issued on September 26, 2021. [12] Al-Sheikh, M. (2022). op. cit., 122. [13] Algeria. (2014). Law No. 14-01 of February 4, 2014 amending and supplementing the Penal Code, Official Journal. No.7, promulgated on February 16, 2014. [14] Kreidan, S. A. B. M. (2022). Criminal Policy in the Face of the Phenomenon of Juvenile Exploitation in Begging. Journal of Media and Arts, School of Media and Arts, 11(1), Libya, 310. [15] Al-Awni, H. B. M. (2024). op. cit., 24. [16] Jabbar-Mansour, I. (2025). Means of Management in Addressing the Phenomenon of Electronic Begging (A Comparative Study). International Journal of Humanities and Social Sciences, (64), Lebanon, 386. [17] Hamada-Khair, M. (2022). The crime of electronic begging and ways to confront it. International Journal of Advanced Research on Law and Governance, 4(2), Egypt, 73. [18] Al-Awni, H. B. M. (2024). op. cit., 24. [19] Ibid., 26. [20] Nazzal Marji, A. S. (2022). op. cit., 1784. [21] Al-Hashlamon, R. M. A. (2021). op. cit., 63. [22] Mufleh Al-Hisban, I, Al-Damour, A. M. (2024). Novel Crimes (Informatics, Cyber, and Electronic). Dar Al-Khaleej for Publishing and Distribution, 146. [23] Habtoor, F. H. (2023). op. cit., 474. [24] Mufleh Al-Hisban, I, Al-Damour, A. M. (2024). op. cit., 146. [25] Agarwal, R. (2021). Child Begging - An Organized Crime?, International Journal of Trend in Scientific Research and Development (IJTSRD), 6(1), India, 374-376. [26] Al-Hashlamon, R. M. A. (2021). op. cit., 61. [27] Sahar, F. M. (2019). Novel Crimes (An In-Depth and Comparative Study of Several Crimes). Arab Center, 2. [28] Agarwal, R. (2021). op. cit., 375. [29] Al-Awni, H. B. M. (2024). op. cit., 25. [30] Nazzal Marji, A. S. (2022). op. cit., 1786. [31] Al-Awni, H. B. M. (2024). op. cit., 23. [32] Al-Sheikh, M. (2022). op. cit., 124. [33] Lanane, M. (2019). Begging and Harassment: Case Study: Wilaya of Bejaia. Journal of Social Orbits, (3), Algeria, 233. [34] Mostafa Mohamed Al-Mahrouqi, M. (2023). Milestones of Criminal Policy in the Face of Begging Crimes: An Analytical Study in Comparative Criminal Systems. Journal of Legal and Economic Research, (83), Mansoura University, Egypt, 619. [35] Al-Hashlamon, R. M. A. (2021). op. cit., 74. [36] Sayed Al-Sayeh-Hamdan, E. (2024). The Phenomenon of Electronic Begging through Live Broadcasting via TikTok from the Perspective of Social Media Users in Egyptian Society: An Ethnographic Study. Egyptian Journal of Media Research, (89), 424. [37] Al-Sheikh, M. (2022). op. cit., 128. [38] Al-Awni, H. B. M. (2024). op. cit., 25. [39] Adas, N., Mahmoud, M. (2025). Confronting the Phenomenon of Electronic Begging in Palestine between Law and Society. An-Najah University Journal for Research in Humanities, An-Najah National University, Palestine, 2. [40] Sayed Al-Sayeh – Hamdan, E. (2024). op. cit., 414- 415. [41] Al-Awni, H. B. M. (2024). op. cit., 25. [42] Adas, N., Mahmoud, M. (2025). op. cit., 3. [43] Al-Hashlamon, R. M. A. (2021). op. cit., 63. [44] Salman Abdel Jubouri, S. (2014). The Crime of Electronic Fraud (A Comparative Study). Master’s Thesis, Faculty of Law, Al-Nahrain University, 17-47. [45] El Kadi, N. (2023). Electronic Begging in Algeria between Attracting Social Solidarity and Indicators of Virtual Fraud - An Analytical Study of the Opinions of a Sample of Pioneers, Social Media Sites in the Governorate of Tizi Ouzou. Journal of Humanities and Social Sciences, 9(2), University of Constantine 2 Abdelhamid Mehri, 242. [46] Hamada- Khair. M. (2022). op. cit., 65. [47] Al-Khawaldah, M. H., Al-Khseilat, A. A. (2021). The Crime of Begging. A Comparative Study of the Jordanian, French, Belgian and German Laws. Turkish Online Journal of Qualitative Inquiry (TOJQI), 12(3), Turkiye, 2149. [48] Habtoor, F. H. (2023). op. cit., 1480-1482. [49] Hamada-Khair, M. (2022). op. cit., 66. [50] El Kadi, N. (2023). op. cit., 242. [51] Habtoor, F. H. (2023). op. cit., 1479-1482. [52] Al-Sheikh, M. (2022). op. cit., 132-133. [53] Wiza Belasali, W. (2020). The Criminalization of Begging by Exploiting Children in Algerian Law. Journal of Humanities, University of Mentor Constantine, 31(4), 304. [54] Adas, N., Mahmoud, A., op. cit., 3, 4. [55] Habtoor, F. H. (2023). op. cit., 1484. [56] Al-Sheikh, M. (2022). op. cit., 134. [57] El kadi, N. (2023). op. cit., 242. [58] Hamada-Khair, M. (2022). op. cit., 66-67. [59] Habtoor, F. H. (2023). op. cit., 1484. [60] Algeria. (1966). Penal Code, Ordinance No. 66–156 of June 8, 1966, Official Journal. No. 49, promulgated on June 11, 1966. [61] Algeria. (1982). Law No. 82-04 of February 13, 1982, amending Ordinance No. 66-156 containing the Penal Code. Official Journal, No. 7, 336. [62] Habtoor, F. H. (2023). op. cit., 1477. [63] Al-Sheikh, M. (2022). op. cit., 125. [64] Algeria. (2009). Law No. 09–01 of February 25, 2009 on the Algerian Penal Code. Official Journal, No. 15, promulgated on March 8, 2009. [65] Saudi Arabia. (2017). Ministerial Resolution No. 203 of April 22, 2017, Ministry of Human Resources and Social Development, Referenced at: El Kadi, N., op. cit., (2023), 243. [66] Jordan. (2019). Ministry of Social Development Decisions on the control of unlicensed online donations and electronic begging. [67] El Kadi, N. (2023). op. cit., 242-243. [68] United Arab Emirates. (2021). Federal Decree-Law No. 34 of 2021 on Combating Rumors and Cybercrimes, issued on December 20, 2021, No. 712, promulgated on September 26, 2021.
Climate Justice on Trial: Role of Nigerian Courts in Connecting the Dots between Climate Change and Violence against Women
While growing scholarship has increasingly explored the gendered impact of climate change, the legal responses remain under-examined, particularly in Nigeria. Globally, climate change is a topical issue. The cause could be natural or man-made. While natural causes demand adaptation strategies, anthropogenic (man-made) ones require mitigation and accountability. Regardless of origin, it affects men and women but disproportionately burdens women and girls due to its intersection with gender inequality, human rights, and social justice. Consequently, it deepens existing inequalities and results in climate injustice. This worsens women’s gender-driven bad situation, making it a form of violence against women (VAW). Nigeria has signed agreements on climate change and human rights, which are expected to be reflected in domestic laws. The question is whether these recognize the peculiarities of women and consider climate injustice as VAW. This work examines the possibility of considering gender climate injustice as VAW and the role of courts in redressing it. It employs doctrinal research methodology from analytical, expository, and normative approaches, relying on primary and secondary sources of data. It found that the extant climate change laws are insufficient and neither gendered nor related to violence, leaving the courts to purposively connect the dots. To achieve substantive justice, it recommends that the courts must embrace the doctrine of ‘implicitly guaranteed rights’, enunciated by the African Commission on Human and Peoples’ Rights in the case of SERAC and Another v Nigeria. Nigerian courts have a critical role in ensuring climate justice by interpreting laws to bridge the gap between environmental harm and its gendered consequences. Keywords: Climate change, climate injustice, human rights, courts, violence against women. Introduction Since the formation of the United Nations (UN) in 1945,[1] there have been global commitments to ensure the enjoyment of human rights. The idea that human rights are entitlements of all humans became preserved in the Universal Declaration of Human Rights (UDHR).[2] It set a minimum core standard for the enjoyment of human rights, and since then, the contours have consistently increased, beginning with the first generation-civil and political, to the second generation-socioeconomic to the third generation-developmental rights. Despite the different generations, there is a consensus that all rights are universal, indivisible, interdependent, and interrelated.[3] A learned author illustrates it in demonstrating that one can only enjoy the right to life, a civil and political right, if there is access to the right to health goods and services, a socioeconomic right.[4] These standard minimums are imbibed at the regional levels, for instance, in Africa, the African Charter on Human and Peoples’ Rights (African Charter) replicates them.[5] National constitutions are not left out; for instance, the Constitution of the Federal Republic of Nigeria 1999 (CFRN) contains human rights provisions.[6] Human rights, being universal, are for everyone irrespective of sex or gender. Despite the UDHR’s use of the words ‘all human beings’, ‘everyone’, ‘all’, ‘men and women’, the Vienna Declaration insists that the human rights of women and girls are inalienable, integral, and indivisible parts of universal human rights.[7] This is understandable, being that women constitute 49.5 percent of the global human population, a figure too significant to be ignored.[8] In practice, women seem not to enjoy equal rights with men, thus the adoption of specific treaties like the International Convention on the Elimination of all forms of Discrimination against Women (CEDAW)[9] and its African regional counterpart - the Protocol to the African Charter on Rights of Women in Africa (Maputo Protocol).[10] Some countries have women-specific laws on women’s rights, while others have specific sections on women’s rights in their Constitutions.[11] Nigeria has neither but rather a general law that guarantees everyone’s rights. Despite the interrelatedness of rights, none of the generations of rights seems to be most favorable to women. For instance, on civil and political rights, the right to life is guaranteed for everyone and not to be intentionally taken except in the execution of a court’s sentence. This clearly does not take into consideration maternal mortality (MM), which is rife as Nigeria ranks second highest globally.[12] An example of socioeconomic right is the right to health, in cases of reduced access to reproductive healthcare goods and services; women suffer grievous health consequences, including MM. A sample of third-generation or solidarity rights is the right to a healthy environment, the violation of which will affect the lives of men and women. Though this third group is plagued by challenges of clarity of content, duty bearers, and right holders, it can also result in MM in cases of sudden extreme climate change.[13] This makes MM a form of violence against women (VAW) because it affects only women, and the death does not result from court sentences. It also neglects the fact that these women die while performing a social function of giving life. The environment plays an important role in the survival of human beings, as it can affect the quality of life of humans. This makes its protection beneficial to humans. Humans also need to be protected from elements of the environment that impact on dignified life. Climate is an important aspect of the environment that changes due to either natural or manmade means, causing humans untold hardship. When this happens, in Nigeria as well as most countries, women suffer more than men, in the form of health impacts, injury, and death.[14] This is due to their peculiarity of being in the care economy, thereby constituting VAW.[15] While policy and development scholarship have begun to explore the gendered impacts of climate change, legal responses, especially those concerning violence against women, remain under-examined. Although the body of literature on climate change and gender inequality has expanded, there is still a limited systematic analysis linking climate injustice to the legal frameworks governing violence against women. Research has shown that majority of academic literature pertaining to this issue fail to integrate a true gender perspective in regards climate change,[16] often treating gender merely as an additional explanatory variable rather than recognizing it as a social or cultural construct that generates inequalities putting women at a much greater risk; this lack of a gender perspective could lead to misinterpretation and misguided recommendations for improving climate policies.[17] This paper addresses this critical gap by establishing a doctrinal foundation for recognizing gender-differentiated climate harms as a form of VAW and by outlining the role of courts in advancing this emerging field. It argues that if courts fail or neglect to connect the dots between climate injustice and VAW, they risk becoming complicit in perpetuating such violence. Consequently, this study is both timely and necessary, providing a legal and theoretical basis for understanding how environmental degradation and climate change intersect with women’s human rights and the state’s obligations to protect them. This work is divided into five parts. Following this introduction is a section positing climate change justice and linking climate injustice to VAW. The third part traces the legal framework for recognizing climate injustice as VAW and how the courts can connect the dots. The fourth part looks at the factors affecting the recognition of climate injustice as VAW, thus impeding the enjoyment of such rights by Nigerian women, while the final part makes useful recommendations on tackling the identified challenges. This work concludes that where the courts fail or neglect to connect the dots between climate injustice and VAW, it becomes an agent in the perpetration of such violence. Methodology This study employs a doctrinal legal research methodology, integrating analytical, normative, and purposive interpretive approaches. This methodology is particularly appropriate given that the disproportionate impact of climate change on women, and its possible classification as a form of violence against women, represents a relatively novel and under-explored area of scholarship, with limited empirical data available. Doctrinal legal research provides a systematic framework for clarifying conceptual and normative issues, constructing an interpretive model for judicial engagement, and critically evaluating existing legal instruments. The primary objective of this study is to examine how gender-differentiated climate harms may be recognized as VAW within existing legal frameworks, and to assess the potential role of courts in reinforcing this conceptual and normative linkage. The research draws on multiple sources of law and scholarship. Primary legal instruments include the 1999 Constitution of the Federal Republic of Nigeria, the Climate Change Act 2021, the Violence Against Persons (Prohibition) Act 2015, the African Charter, and other relevant national and regional legal norms. International instruments and soft-law sources include the CEDAW, the Maputo Protocol, the United Nations Framework Convention on Climate Change (UNFCCC), the Paris Agreement, CEDAW General Recommendation No. 37, and the Beijing Platform for Action. Judicial authorities such as SERAC v. Nigeria, Gbemre v. Shell, and Centre for Oil Pollution Watch v. NNPC are analyzed to illustrate State obligations in relation to environmental protection and the protection of human rights. Secondary materials comprise peer-reviewed academic literature, monographs, and research reports by recognized international institutions. The study applies a gender-sensitive and intersectional analytical lens to reveal the mechanisms through which climate impacts intensify women’s vulnerability to violence and exacerbate socio-economic inequalities. Judicial decisions are examined using a precedent-based analytical model, while statutory and normative interpretation is guided by purposive, principle-based reasoning that foregrounds the indivisibility, interdependence, and universality of human rights. This research does not involve primary empirical data collection; rather, it systematically analyses legal, institutional, and secondary empirical materials to elucidate the relationship between climate impacts and VAW. By combining doctrinal analysis with critical normative reasoning, the study develops an interpretive framework that advances gender-responsive climate justice and strengthens the judicial recognition of gendered climate harms. 1. Theorizing Climate Change, Climate Justice, and Climate Injustice Human existence within an environment presupposes an interdependent relationship. Human beings can, through their actions, contribute to the growth and development or the destruction of the environment. Climate, a part of the environment, is the long-term pattern of weather in a particular area, tracked for at least 30 years.[18] It changes slowly over hundreds or thousands of years by natural factors, human activities, and/or both. Natural causes include volcanic eruptions, ocean currents, the earth’s orbital changes, solar variations, and internal variability.[19] Human-related factors include: transportation, electricity generation, industrialization, mechanized agriculture, development of oil and gas, building, deforestation, and lifestyle choice, among others.[20] In view of human factors, industrialized nations would contribute more to climate change, but with globalization, other countries that neither contributed to the causative factor nor benefited from the industry will partake in the effect, which amounts to climate injustice, entitling them to reparation.[21] Nigeria’s climate is mainly tropical.[22] Signs of climate change include extreme flooding,[23] unpredictable rainy seasons, and air and water pollution.[24] The effects are enormous; for instance, flooding has destroyed schools, making it impossible for children to go to school, displaced people, destroyed farms, leading to food insecurity and unemployment for farmers, making them soft targets for recruitment by insurgents.[25] It affects health, fuels domestic violence, and is worse on the vulnerable, including children, the elderly, and pregnant women.[26] Like most countries, Nigeria experiences natural and human factors related causes. Of the human-related causes, the chief ones include gas flaring[27] and deforestation,[28] and both are eradicable. All these can be largely categorized as environmental violence, defined by the Committee on the Elimination of Discrimination Against Women (CEDAW) as any “form of environmental harm, degradation, pollution, or State failures to prevent foreseeable harm connected to climate change”.[29] The catalysts for this violence often arise from the failure of states to address climate change impacts or state and corporate actions that cause environmental degradation, revealing shortcomings in international and domestic law to hold perpetrators accountable.[30] Government-authorized degradation of the environment through contracts with corporations is one major form of environmental violence that results in gendered harm; this harm triggers mass migration due to the destruction of land and forced removals, leading to increases in violence against women.[31] Climate justice recognizes the impact of climate change on those who are the least responsible for it by tackling the root causes. Nigeria is among the top seven countries flaring gas, even though the gas could be put to better use.[32] She has shifted the date for its stoppage several times, suggesting that the government might not be interested in stopping it. This stance is fortified by the fact that the Nigerian state owns a 50 percent shareholding of the oil venture, which makes the government both a polluter and a beneficiary. Such contradictions reflect structural climate injustice: the state profits while citizens, especially women, bear the costs. Globally, evidence reinforces that gender equality strengthens climate resilience. A 2022 cross-country study covering 146 nations found that every 1% rise in gender equality correlates with a 0.6% improvement in climate adaptation capacity, primarily due to greater readiness and lower vulnerability.[33] Conversely, each 1% increase in gender inequality leads to a 0.5% decline in adaptation.[34] Education equality, in particular, was identified as the strongest driver of climate readiness.[35] These findings highlight that empowering women through education, participation, and equitable access to resources is not only a matter of justice but a practical necessity for effective climate action. In Nigeria, where women disproportionately experience the social and economic fallout of environmental degradation, closing gender gaps is therefore essential to achieving true climate justice and resilience. 1.1 Linking climate injustice to violence against women (VAW) The consequences of climate change are not distributed equally; a significant body of research indicates that women are subject to its most severe effects.[36] This disparity is deeply rooted in societal structures; cultural norms often assign women primary responsibility for tasks such as securing water, fuel, and food, or performing home care; these rely heavily on natural resources, making them exceptionally vulnerable to environmental instability.[37] This vulnerability is intensified by economic and infrastructural factors. Women generally spend more time in the home managing care duties, heightening their dependence on domestic energy. Concurrently, lower rates of private vehicle ownership mean they rely more heavily on public transport systems.[38] Furthermore, a persistent income gap translates into a higher incidence of energy poverty among women; this financial barrier makes it significantly more difficult for them to adopt sustainable alternatives, such as investing in renewable energy or energy-efficient upgrades.[39] This situation is particularly unjust given that women's consumption habits have historically accounted for a smaller portion of the greenhouse gas emissions driving the climate crisis; compounding the issue, the very groups most exposed to climate impacts, including women, are also the most likely to be negatively affected by flawed or badly designed climate policies; in short, women’s disproportionate risk is a product of their greater exposure during severe climatic events, their frequent reliance on low-technology agriculture, and a systemic lack of resources and power.[40] Another instance of the adverse effect of climate change on women is when climate change changes the rainfall pattern, and women and girls, who are mostly responsible for collecting and managing household water, undergo enormous difficulty in getting water. In confirmation, the UN reported that women in sub-Saharan Africa annually spend 40 billion hours fetching water, equivalent to the annual labor worth of the entire workforce in France.[41] Further, where people are compelled into camps due to climate change, women suffer indignity in the form of being victims of ‘sex for food’.[42] These demonstrate that climate change is not gender neutral but disproportionately affects women. It could invariably be said to mete out injustice on women. Researchers, policy makers, and climate change scientists have been trying to link climate change to gender and social inequity.[43] However, the link is yet to be concretized by the UN, but the UN Women have lent their voices in calling for that recognition.[44] Seeing that climate change results in injustice to women by increasing their burden, though they did not cause it, is it a form of VAW? The United Nations Declaration on the Elimination of Violence against Women, (UNDEVAW), the first international instrument to unequivocally address VAW, defines it as ‘any act of gender-based violence that results in, or is likely to result in, physical, sexual or psychological harm or suffering to women, including threats of such acts, coercion or arbitrary deprivation of liberty, whether occurring in public or in private life’. Climate change extremely affects women simply because of their sex and or gender. It inflicts physical harm when a woman dies, for instance, in cases of MM due to the effects of weather changes on pregnant women. It becomes sexual harm when a woman endures rape due to climate change, for instance, when climate change forces people to move into camps, and women are subjected to ‘sex for food’. It becomes psychological when a woman is dehumanized as a result of climate change. This can happen in the privacy of homes or in the community. It follows that government or state actors can be held responsible. Relying on the foregoing, this work argues that climate injustice constitutes VAW. 1.2 Specific forms of VAW exacerbated by climate change Climate change, often acting as a threat multiplier, exacerbates pre-existing gender inequalities and social stressors, leading to a spike in various forms of violence against women during and after climate-related disasters, crises, and displacement. Specific forms of violence exacerbated by climate change include: a. Intimate partner violence (IPV) and domestic abuse Intimate Partner Violence and domestic abuse, overwhelmingly borne by women, tend to increase climate-induced disasters and are characterized by the UNDEVAW adopted on 20 December 1993 by General Assembly resolution 48/104, this violence is characterized as a continuum of harmful behaviors ranging from control and psychological abuse to physical and sexual violence that occur within the family or domestic setting and are commonly perpetrated by a current or former intimate partner.[45] This violence manifests in multiple forms: physical abuse and violence have been documented during both slow-onset crises, such as droughts in Australia and sub-Saharan Africa, and sudden-onset events such as hurricanes, cyclones, and bushfires[46] psychological and emotional abuse rises as disaster exposure and declining resources generate stress, leading to increased emotional harm[47] intimate partner femicide, or the murder of women by partners or family members, has shown heightened risk following heat waves[48] spousal battery often escalates due to disaster-related tensions and economic insecurity caused by climate change;[49] and general domestic violence frequently increases during post-disaster reconstruction phases, as observed after Hurricane Mitch in Nicaragua and Honduras,[50] where stress from climate extremes aggravated household conflict and VAW risks. b. Sexual violence and exploitation Sexual violence and exploitation of women, which are highly documented in emergency and displacement settings during climate-related disasters, are exacerbated by resource scarcity and lack of security, exposing women and girls to multiple overlapping risks. Rape and sexual assault rose significantly among women displaced after Hurricane Katrina, including cases of intimate partner rape, while women and girls forced to walk longer distances in search of food, water, or firewood became especially vulnerable, as seen in reports of rape following the 2007 Gizo tsunami in the Solomon Islands.[51] Sexual harassment is also widespread, particularly in disaster contexts where women and girls are targeted in cyclone shelters while accessing sanitation facilities or during floods,[52] where unemployed men loiter and harass adolescent girls. Sexual trafficking and exploitation often intensify under conditions of displacement and scarcity caused by climate change, with children - especially girls - left unprotected and at risk of rape, trafficking, or forced prostitution in exchange for food, water, or other valuables, while women and girls face heightened coercion into sexual exploitation during climate-induced crises.[53] Finally, sexual violence against women climate change defenders highlights another layer of risk, with threats of rape and intimidation disproportionately weaponized to silence and control women who resist or protest against climate change.[54] c. Economic and property violence Economic and property violence, which intensifies during climate-related shocks and resource scarcity, undermines women’s financial stability and autonomy while increasing their susceptibility to abuse. Financial deprivation occurs when men refuse to meet economic responsibilities, such as alimony, or deliberately restrict women’s access to financial resources, leaving them vulnerable during crises. Denial of livelihood and income opportunities, often through husbands preventing women from working, can become life-threatening in contexts of food insecurity and disaster-related stress, stripping women of the ability to sustain themselves or their families. Property rights shifting further compounds recovery challenges, as post-disaster processes often reinforce patriarchal norms that transfer land, housing, or other assets disproportionately to men, thereby marginalizing women’s ability to rebuild their lives.[55] Finally, economic abuse, while recognized and criminalized under Nigerian law, becomes more pronounced during crises, manifesting in the loss of women’s employment, livestock, or agricultural output and leaving them with reduced bargaining power and heightened dependence, which in turn deepens their exposure to gender-based violence.[56] d. Violence related to forced migration and displacement Climate change causes the rapid degradation of land, forcing communities to abandon their homes and migrate in search of habitable land.[57] This forced migration disproportionately affects women, leading to an increase in incidents of violence against women; this violence arises from structural shortcomings and cultural perpetuations of gendered discrimination.[58] Violence related to climate-induced migration and displacement is a critical concern in the context of climate events, as the insecurity created by displacement exacerbates women’s and girls’ exposure to multiple forms of abuse. Violence in temporary shelters and camps is widespread, with women and girls reporting high levels of sexual violence during routine activities such as sleeping, washing, bathing, or dressing, particularly in tents or shelters that lack privacy, adequate lighting, and proper security measures.[59] Forced prostitution emerges as another grave risk, as displaced women and girls are frequently coerced or exploited under conditions of vulnerability and scarcity, leaving them with few alternatives for survival.[60] In addition, xenophobic attacks pose heightened threats to women and girls in migration contexts, as climate-induced displacement often fuels social tensions in host communities, making female migrants disproportionately vulnerable to gendered violence, harassment, and exclusion.[61] Further, a field study on climate change in some parts of Africa found that in the event of severe drought conditions, men migrate to other rural or urban areas in search of water or grazing land, or work.[62] The women who are left behind face increased risks of expulsion from their families and communities, as well as sexual violence; the gendered impacts of these male migrations are manifested in terms of their negative effect on the girls’ education.[63] In the absence of fathers and brothers, girls are expected to support their mothers in household and farming activities; as a result of the extra workloads the girls assume, they are forced to miss out on schooling.[64] e. Harmful Traditional Practices Harmful Traditional Practices (HTPs) can intensify under the economic and social pressures of climate change, as families resort to these practices as coping mechanisms or strategies to reduce dependency. Child marriage and forced marriage often rise following disasters, with families marrying off daughters at younger ages during droughts to reduce household size and secure dowries as a form of cash income.[65] After the 2004 South Asian tsunami, cases were documented of young women being forced to marry older “tsunami widowers”, while displaced girls were compelled into marriages against their will, and widows were coerced into marrying relatives of their late husbands.[66] Female genital mutilation, already a severe violation of women’s rights, is recognized as a form of sexual violence that can be exacerbated in climate disaster contexts where social control over women’s bodies intensifies.[67] In addition, forced abortion has been reported in climate disaster situations, where women may be compelled to terminate pregnancies due to displacement, resource scarcity, or coercion, further reflecting the way harmful traditional practices become intertwined with crises driven by climate change. f. Mental health Climate change increasingly affects psychological well-being, manifesting in emotions such as fear, helplessness, and persistent distress that can escalate into clinical anxiety, depression, or trauma-related disorders.[68] Women are particularly vulnerable to these effects, often exhibiting higher rates of psychological strain following extreme weather events; this heightened risk is closely tied to pre-existing social and economic inequalities, as well as gendered responsibilities that place additional emotional burdens on women during and after crises.[69] In the aftermath of floods or droughts, women frequently experience intense worry over their families’ safety and livelihoods; a growing phenomenon, sometimes referred to as eco-anxiety, captures the deep, ongoing fear of environmental collapse, one that has even influenced reproductive choices, with some women reconsidering childbirth in light of future climate risks.[70] Pregnant women exposed to disasters such as cyclones are also found to have elevated and prolonged risks of post-traumatic stress, often persisting long after the event itself.[71] 2. Legal Framework for Reckoning Climate Injustice on Women as VAW At the international level, few legal instruments directly address how climate change affects women and girls. Consequently, many women experience heightened vulnerability to violence and exploitation as climate impacts intensify.[72] Historically, international environmental and climate frameworks have largely overlooked gender considerations, treating them as peripheral rather than integral to policy design.[73] This neglect has created a persistent gap in legal protection for women, particularly concerning gender-based violence linked to climate-related stressors. Existing international environmental and climate laws remain largely silent on these gender-specific dimensions, leaving women without adequate safeguards in global climate governance.[74] The commencement point is the UDHR, of which Article 25 guarantees standards of living adequate for wellbeing. This will invariably include a safe, clean, healthy environment. Specific ones on climate change include the 1992 UN Framework Convention on Climate Change (UNFCCC), establishing a structure for confronting challenges of climate change,[75] and the Paris agreement, recognizing that climate change is a shared problem, thus all countries need to set emission targets. It covers climate change mitigation, adaptation, and finance.[76] These and other climate change treaties barely recognize gender, let alone finding a linkage with VAW. The CEDAW, acknowledged as the women’s bill of rights, condemns all forms of abuse of women, without the use of the word ‘violence’. Though it has nothing on climate change, the purposive reading of its Article 1 on discrimination against women will include climate change-related VAW because women’s disproportionate suffering has the effect of nullifying their exercise of human rights on an equal basis as men. As if affirming this, its General Recommendation(GR) no 37- which is related to gender and disaster risk reduction in climate change, but failed toexhaustively cover VAW in climate change - correctly observed that women are more affected by climate change and experience difficulty in adapting to the changes that come with it, requiring targeted laws, policies and budget to redress it.[77] The Beijing Declaration and Platform for Action highlighted 12 crucial areas where action is needed for greater equality of men and women, and they include ‘violence against women’ and ‘women and the environment’.[78] It noted that women are more stable in the community as men constantly seek greener pastures; consequently, sustainable development can only be achieved if women’s contribution to environmental management is acknowledged and supported.[79] At the regional level, the African Charter guarantees the right to a generally satisfactory environment favorable for development,[80] while the Maputo Protocol guarantees African women the right to a healthy and sustainable environment.[81] None of the treaties defined this right, but the Maputo Protocol has a more holistic provision, calling for the greater participation of women in the planning, management, and preservation of the environment. In relation to the extractive industry, the African Commission explained this right to mean an environment that is clean enough for a safe and secure life and development of individuals and people.[82] This work adopts this definition, which it argues is sufficient to cover concerns outside of the extractive industry. However, it lacks a gender perspective. Specifically on climate change, the African Union observed that there is a lack of awareness of the gender dimension of climate change and thus the need to mainstream gender into climate change policy formulation, planning, monitoring, and evaluation.[83] The Maputo Protocol adopts the definition of violence as stated in the UNDEVAW, but goes a step further to prohibit violence in times of peace and armed conflict or war.[84] Article 4 on VAW calls on States Parties to identify its causes and consequences. In line with this provision, this work lends its voice in demonstrating that climate change causes VAW. Further, Article 10 on women in armed conflict specifically includes protection of internally displaced persons from violence. It follows that when women are internally displaced as a result of climate change, they must be protected from sexual and economic violence. Again, Article 24 on women in distress calls for the protection of poor women. This study has shown that climate change makes women poorer and deserving of protection. This work submits that the combined reading of the provisions of the Maputo Protocol suggests that climate change can be said to be VAW. At the domestic level, there are few laws on it. Laws on any issue signify the government's willingness to address it. Nigeria has laws on climate change and VAW. This aspect examines these laws for any linkage of the two, beginning with the 1999 Constitution of the Federal Republic of Nigeria as amended (CFRN), the foundational document upon which all laws in Nigeria derive their validity. The CFRN makes provisions for environmental concerns, which invariably cover climate change. Section 20 of the CFRN stipulates environmental objectives of protection, improvement of the environment, and safeguarding of the water, air, land, forest, and wildlife, the duty of the state. Of course, this duty is for the benefit of Nigerians. Section 42 prohibits discrimination in law or performance of executive or administrative function, on many grounds, including sex. It follows that when the government is carrying on the environmental objectives, it must endeavor to do so in a non-discriminatory manner. The Climate Change Act of 2021 (CCA)[85] provides a framework for achieving a low greenhouse gas emission (GHG), environmentally sustainable, and climate-resilient society. It sets up the National Council on Climate Change (NCCC) to coordinate the attainment of reduced GHG and other anthropogenic causes of climate change. It obligates public entities as well as private ones with a minimum of 50 employees to establish measures for achieving carbon emission reduction.[86] It provides for the reduction of emissions from deforestation and forest degradation,[87] but it surprisingly has nothing on gas flaring, which contributes 65 percent of the global gas flares and is a major cause of climate change, especially in Nigeria.[88] The NCCC administers a climate change fund, set up for, among other things, conducting assessments of climate change impact on the vulnerable community and population.[89] This fund is, however, not for assisting victims of climate injustice. Seeing that women suffer more in cases of climate change, the absence of such an enabling provision is gender discriminatory. It provides for the punishment of acts that affect the mitigation efforts under the Act, but the penalty is to be determined by the Council.[90] This violates the attribute of offence that must be defined and a penalty prescribed in a written law.[91] Where the penalty is to be determined by the council, it leaves room for differential punishment and all other acts of corruption-fueled considerations. An example is the non-punishment of gas flaring. The Violence against Persons Prohibition Act (VAPPA) of 2015 prohibits and punishes all forms of violence against anyone.[92] It defines violence as any act or attempt that causes or may cause any person, physical, sexual, psychological, verbal, emotional, or economic harm occurring in private or public life, in peacetime and in conflict situations.[93] Climate change has been linked to conflict.[94] It drives conflict in which women suffer all forms of violence. The combined reading of these laws will make room for the punishment of climate injustice as VAW. Connecting the dots by the courts In democratic societies, all eyes are on the courts to do justice. Justifying this is a common saying that the judiciary is the last hope of the common man. In doing justice, the courts interpret the law because the law becomes what the courts say it is. It follows that in reaching the end of recognizing climate injustice as VAW in Nigeria, the courts are of utmost importance. Nigeria has enacted the VAPP as well as the CCA. Unfortunately, none of these laws directly links climate injustice to VAW. The pertinent question is whether asking the court to come to this conclusion is demanding an impossibility. Seeing that the law remains a skeleton till it is interpreted by the courts, should the courts apply the law according to justice, or should justice be done in accordance with the law?[95] In a place like Nigeria, where there is no specific law on women’s rights and the CFRN has no specific section dedicated to women’s rights, doing justice according to law will always leave women at a disadvantage. To do justice to women, the courts must apply the law according to justice by interpreting existing laws as living documents. In interpreting the laws to do justice, Nigerian courts must embrace the doctrine of ‘implicitly guaranteed rights’ enunciated by the African Commission in the case of SERAC v Nigeria.[96] Here, the Nigerian government’s recklessness in oil development affected the health and environment of the Ogoni people, threatening their food sources by destroying their water and land. Ogoni people demonstrated their grievance by carrying on non-violent campaigns. The government responded by using the army to kill them and destroy their houses. On a complaint to the African Commission, it held that the Nigerian government violated the following Articles of the African Charter- 2(nondiscrimination), 4 (life), 14(protection of property), 16 (health), 18(1) (family protection), 21 (free disposal of natural resources), and 24 (satisfactory environment). It further held that Nigeria violated rights to housing and food, which, though not guaranteed in the Charter, are ‘implicitly guaranteed’. To reach this conclusion, they read articles 14 (protection of property), 16 (health), 18(1) (family protection), together. These, they held, protect rights to housing or shelter as destruction of housing negatively affects health, property, and family. They also read articles 4(life), 16 (health), and 22 (economic, social, and cultural development), together to implicitly guarantee the right to food. They reasoned that the right to food is essential for the enjoyment of expressly guaranteed rights like health, education, among others. This decision strongly suggests that pronouncing climate injustice an act of VAW is possible in Nigeria because it has domesticated the African Charter and incorporated it as part of local laws.[97] Consequently, the combined reading of Articles 16 (health), 18(3) (elimination of discrimination against women, protecting their rights in accordance with international standards), 24 (satisfactory environment), and 46 of VAPP (prohibiting all forms of violence against persons in public or private in peace and conflict situations) would give room for the interpretation of climate change that disproportionately affects women’s health, dignity and livelihood as VAW, from which they need protection. Further, relying on Article 60 of the domesticated African Charter, the courts can draw inspiration from international and regional human rights treaties as interpretative guides. The justification is that climate change increases women’s burden and exacerbates VAW. The non-prevention of exacerbating manmade factors will mean non-protection of women. This conclusion is strengthened by the Commission’s observation that all charter rights are operative and that international law and human rights must be responsive to African circumstances. Nigerian courts seem to have embraced this doctrine. In the case of Gbemre v Shell Petroleum Development Company of Nigeria Ltd. & Ors,[98] the applicant representing his community sued the Nigerian government and Shell for failing to stop gas flaring and engaging in gas flaring, respectively, which violated constitutionally guaranteed rights to life and dignity, affected means of livelihood, survival, and worsened the effects of climate change. The Court held that the acts complained about violated rights to a clean and healthy environment. In another case, Centre for Oil Pollution Watch v Nigerian National Petroleum Corporation,[99] the Supreme Court overruled the decision of two lower courts in holding that an NGO has a locus to bring an action for a community whose waterways were contaminated by oil spillage from the respondent’s oil pipe. Relying on sections 20(Environmental objectives), 33(right to life) of CFRN and Article 24 (satisfactory environment) of the domesticated African Charter, it held that the right to the environment is implicitly guaranteed. To address the present concerns, this study posits that all the courts need to do is extend the embracing of this doctrine to women, particularly as it relates to climate justice and VAW, when such an opportunity presents itself. 3. Factors Hindering the Linkage of Climate Justice and VAW in Courts Many factors pose a challenge to Nigerian courts in recognizing climate injustice against Nigerian women and linking it to VAW. 3.1 Linkages related challenge Over time, women have successfully challenged the violation of their rights in different aspects like land, sexual and reproductive health, and employment, among others. Unfortunately, researchers, policy makers, and women themselves are still struggling to link climate change and VAW.[100] This study evidences the differential effect of climate change on men and women, as well as the fact that it drives conflict with ripple effects, directly increasing all manner of VAW, and concludes that women suffer climate injustice. However, linking climate change as a causative factor of VAW in a tangible document at the international and regional levels is yet to be concretized, though the journey has begun.[101] For effective linkage, further research linking climate change and injustice to VAW is inevitable. 3.2 Law-related challenge Laws cannot be exhaustive, meaning that there is always room for more laws on any issue. Flowing from the challenge of climate change and VAW linkage, there is no hard or soft law at the international and regional levels on this. Realizing that domestic laws take inspiration from such international and regional agreements, it is understandable that Nigeria lacks such laws. While waiting for such agreements that will influence domestic laws, reliance could be placed on the VAPPA /VAPPL, which is holistic on VAW and can be stretched to issues of climate change. Even with the laws, implementation is another concern. For instance, Nigeria enacted the CCA, but it took the president eight months to appoint the Director General of NCCC.[102] The delay was attributed to bureaucracy, and one wonders if a simple thing, such as an appointment, takes eight months, what would the position be for more serious and pertinent climate change matters. Again, one of the sources of the fund for climate change actions is from fines for failing to meet climate change mitigation obligations. Nigeria introduced a penalty of $2 per thousand cubic feet of gas wasted to discourage multinational corporations from flaring gas, and in 2021 had $521 million in fines, which remain mostly unpaid, despite the violations.[103] 3.3 Court-related challenge It is trite that in the absence of courts, justice will remain a mirage; Nigerian women can only get justice when they have access to them. The CFRN guarantees the right to a fair hearing and access to an independent and impartial court of law.[104] Access to courts requires legal representation as well as payment for the filing of processes. These necessitate payment of professional fees to lawyers and filing fees for processes. On filing costs, the courts are gradually becoming economically inaccessible because many states have relegated the courts to revenue-making ventures. Consequently, they have increased courts’ filing fees, leaving Nigerians unable to initiate the judicial process because the courts are unaffordable.[105] This affects mainly the vulnerable and marginalized groups, like women, who, due to this development, will rather leave judgment to God. In agreement, research confirms that 69 percent of Nigerian women are poor.[106] On the difficulty of affording professional fees for lawyers, the Legal Aid Act of 2011 provides a leeway.[107] The Act establishes a Legal Aid Council (LAC) that aids indigent Nigerians in accessing courts at no cost, whether in terms of lawyers’ professional fees or filing fees. This commendable act is stalled by the fact that the Act has three areas of focus- criminal defense, civil litigation, and community legal services.[108] The absence of a women-related focus will inhibit its use by women because the staff may not be trained on women-specific issues. This will mean that when women come to the office, there will be no staff with the expertise to handle their issues. This lack of skills applies to the lawyers being used by the LAC, since there is no provision for their training, and the LAC only uses lawyers who indicate an interest. Further, a person can only receive legal aid on satisfying the Director General that there is reasonable ground for taking, defending, or being a party to such a suit.[109] This provision fails to recognize the fact that many Nigerians are not very much at home with women-specific issues; thus, the officer may see such proposed litigation as unreasonable and unworthy of court intervention. Where this happens, and the woman is indigent, legal aid will be denied her. For instance, in the recent past, domestic violence was seen as a family matter and not a violation of human rights. Another issue with the use of LAC is the fact that their offices are mainly located in urban areas.[110] The reason may not be far from the usual Nigerian challenge of most workers rejecting rural postings due to a lack of basic amenities. Despite this tenable reason, the fact remains that many Nigerians dwell in rural areas, and such violations are more prevalent there, implying that situating them in rural areas will be beneficial. Consequently, this veritable tool that would have been of immense help to Nigerian women is ineffective because it is gender blind. Conclusion While it is suggested that Nigeria is waiting to be inspired by an international and regional-level framework on this issue, it is submitted that standard setting is good, but the implementation is better. This means that she can rely on a combination of extant hard and soft laws. To this, this study recommends the following: a)The enactment of gender sensitive climate laws without waiting for an international and regional level framework to protect Nigerian women from VAW in climate change; b)Much as laws are necessary, people need to know about available laws. Lawmakers must consider this because enacted laws that remain on shelves help nobody and defeat the purpose of their enactment. So they must find a way of disseminating enacted laws or drawing attention to them. They could do this by partnering with the National Human Rights Commission (NHRC), which has offices scattered throughout the federation and has the duty of investigating human rights violations and instituting civil actions; c)Equipping LAC with gender lenses to make it gender sensitive. This is necessary because it is instrumental to the courts’ connecting climate justice to VAW. Presently, Nigerian courts are gender blind, drawing attention to the fact that it is not about positive discrimination in favor of women but realizing that women’s needs differ from those of men. In taking this into consideration, the Act should be revised to specifically include women’s issues as an area of focus; otherwise, the implementers of the law may neglect to purposively interpret it to relate to such issues. When this is done, it becomes a duty for LAC to ensure that, being a special area of expertise, they either engage lawyers who are knowledgeable in women’s issues or devise a means of conducting intermittent training for their lawyers to ensure adequate representation. The same will also apply to the staff of LAC; d)In making the Act women-specific, LAC will devise a better strategy to fulfill its mandate. This will mean introducing a sensitization campaign that legal aid covers related services so that indigent women can take advantage of it. Again, it will mean taking their services to the venue where they are needed, in this case, the rural areas, where 47 percent of Nigerians live. With LAC in the rural areas, it becomes easier for victims to lodge complaints. While VAW happens everywhere, it is prevalent in rural areas. The reasons include the fact that many rural dwellers may not be aware of acts that constitute VAW and the laws prohibiting them. Consequently, the women requiring legal aid may not know when they are victims of a law violation. Logically, people would call for help for acts they know the law prohibits; e)The courts must also be seen to be courageous in protecting the vulnerable. For instance, in Gbemre’s case, the court found that the applicant's right to a clean and healthy environment was violated, yet awarded no costs, damages, or compensation. Knowing that the respondents are not too poor to compensate the applicants, such acts send the wrong signal that courts aren’t strong enough to protect and deter others from seeking judicial redress; f)Funders should consider funding nongovernmental organizations (NGOs) carrying on women-related programs, especially those on climate change. Ordinarily, NGOs conduct enlightenment programs for the populace. This they do through simplifying the laws in a manner that anyone, irrespective of educational status, will understand, and or translating them into the local languages of the area concerned. This is necessary because many NGOs are constrained by funds. Beyond funding NGOs, it is also necessary that women-specific climate change research is deliberately funded and carried on. The court is key to gender climate justice and linking it to VAW. Most courts have imbued the duty of impartiality as a professional ethic. However, they need to be gender sensitive too. This connotes the ability to look at issues from different perspectives, thereby recognizing and deciphering the biases fueled by gender stereotypes. This will boost the confidence of women in the courts in the ever-changing world, in line with the pronouncement of Pat Acholonu in the case of Magit v University of Agriculture, Makurdi. It is said that the function of the court is to interpret laws made by the legislature and not to make laws. In theory, that is so. But it must equally be admitted that judges are not robots (or zombies) who have no mind of their own except to follow precedents. They are intrepid by their great learning and training and can distinguish to render justice to whom it is due. As the society is eternally dynamic and with a fast-changing nature of things in the ever-changing world and their attendant complexities, the court should empirically speaking situate its decisions on realistic premises with regard to the society’s construct and understanding of issues that affect the development of jurisprudence.[115] Judges should never be influenced by the weather of the day but by the climate of the era in applying their great learning to protect Nigerian women from VAW driven by climate change.[116] Climate change being an existential issue, its litigation must come before courts. In hearing such matters, the courts can rely on specific laws or borrow from general laws, but they must be climate change and VAW-conscious for Nigerian women to enjoy climate justice. References Scholarly Literature: Abanyam, N. L., Mnorom, K. (2020). Non‑Governmental Organizations and Sustainable Development in Developing Countries. Zamfara Journal of Politics and Development, 1(1); Abebe, M. A. (2014). Climate change, gender inequality and migration in East Africa. Washington Journal of Environmental Law & Policy, 4(1). https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1034&context=wjelp. Adeyemi, A. (2017). The Legal Aid Council in Nigeria: Challenges and Possible Solutions. SSRN. https://ssrn.com/abstract=3547025. Alonso-Epelde, E., García-Muros, X., Gonzalez-Eguino, M. (2024). Climate action from a gender perspective: A systematic review of the impact of climate policies on inequality. Energy Research & Social Science, 112, 103511. https://doi.org/10.1016/j.erss.2024.103511. Alston, M., Fuller, S., Kwarney, N. (2025). Women and climate change in Vanuatu, Pacific Islands region. Gender, Place & Culture, 32(1); Chapman, A. R., Ahmed, A. K. (2021). Climate justice, human rights, and the case for reparations. Health and Human Rights, 23(2); Desai, B. H., Mandal, M. (2021). Role of climate change in exacerbating sexual and gender-based violence against women: A new challenge for international law. Environmental Policy and Law, 51; Ekpe, P. U. (August 13, 2024). Climate change induced by human activity behind floods in Nigeria. Africanews. https://www.africanews.com/2022/11/17/climate-change-induced-by-human-activity-behind-floods-in-nigeria/. Fapohunda, T., Stiegler, N., Bouchard, J. P. (2024). Climate change and violence against women. Elsevier Masson SAS; Fruttero, A., Halim, D., Broccolini, C., Coelho, B., Gninafon, H., Muller, N. (2024). Gendered impacts of climate change: Evidence from weather shocks. Environmental Research Climate; Ikimi, I. L. (2022). Law According to Justice or Justice According to Law: Examining the Judiciary as the Last Hope of the Common Man in a Democratic State. Journal of Legal Studies and Research 8(5); Jerumeh, T. R. (2024). Incidence, Intensity and Drivers of Multidimensional Poverty among Rural Women in Nigeria. (2024). Heliyon, 10; Mandal, M. (2023). Climate change exacerbated sexual and gender-based violence: Role of the feminist foreign policy. Environmental Policy and Law, 53(5-6). https://doi.org/10.3233/EPL-239018. Nnamuchi, O. (2008). Kleptocracy and its many faces: The challenges of justiciability of the right to health care in Nigeria. Journal of African Law, 52(1); Okeke, U. P., Agbo, I. L., Igwe, S. O. (2024). Questioning the Nigerianness of Nigerian women. African Journal of Law and Human Rights, 8(2); Olusegun, O., Oyelade, O. (2022). Access to justice for Nigerian women: A veritable tool to achieving sustainable development. International Journal of Discrimination and the Law, 22(1); Pinho-Gomes, A.-C., Woodward, M. (2024). The association between gender equality and climate adaptation across the globe. BMC Public Health, 24. https://doi.org/10.1186/s12889-024-18880-5. Ugwu, U. G., Ukamaka, T., Chinonye, C. P. (2023). Impact of climate change on the environment and human health in Nigeria: Implication for sustainable development. International Journal of Studies in Education, 19(1); Usman, D. J., Yaacob, N., Rahman, A. A. (2016). An Inquiry on the Affordability of Legal Services and the Appropriateness of the Regular Courts for Consumer Redress in Nigeria. Beijing Law Review, 7(2); Zavala, M. D., Cejas, C., Rubinstein, A., Lopez, A. (2024). Gender inequities in the impact of climate change on health: A scoping review. International Journal of Environmental Research and Public Health, 21(8). https://doi.org/10.3390/ijerph21081093 Normative acts: International/UN Instruments: The UN Committee on the Elimination of Discrimination against Women. (2018). General Recommendation No. 37 on the Gender-Related Dimensions of Disaster Risk Reduction in the Context of Climate Change (CEDAW/C/GC/37, 2018); United Nations. (1995). Beijing Declaration and Platform for Action: Fourth World Conference on Women (A/CONF.177/20 and A/CONF.177/20/Add.1); Paris Agreement to the UN Framework Convention on Climate Change. (November 4, 2016). T.I.A.S No.16 -1104; United Nations. (December 10, 1948). Universal Declaration of Human Rights (General Assembly Resolution 217A [III]); United Nations General Assembly. (December 18, 1979). Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), GA Res 34/180; entered into force September 3, 1981); UN Framework Convention on Climate Change (UNFCCC). (May 9, 1992). S. Treaty Doc. No. 102-38, 1771 U.N.T.S. 107; United Nations. (June 14-25, 1993). Vienna Declaration and Programme of Action (A/CONF.157/23, Para. 5). World Conference on Human Rights, Vienna. African Union/African Instruments: African Union. (2003). 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Disasters, Climate Change, and Violence Against Women and Girls. Oxford Research Encyclopedias: Natural Hazard Science; National Geographic. (n.d.). All about climate. https://education.nationalgeographic.org/resource/all-about-climate/ Stephanie, D., Suleiman, H. (2024). The climate crisis in Nigeria: Climate justice and women’s rights. Education as a Vaccine. https://www.evanigeria.org/the-climate-crisis-in-nigeria-climate-justice-and-womens-rights/ Turrentine, J. (n.d.). What are the causes of climate change? Natural Resources Defense Council (NRDC). https://www.nrdc.org/stories/what-are-causes-climate-change UN Women. (2020). 2019–2020 Women, Peace and Security in Action. https://www.unwomen.org/sites/default/files/Headquarters/Attachments/Sections/Library/Publications/Women-peace-and-security-annual-report-2019-2020-en.pdf United States Agency for International Development (USAID). (January, 2013). Nigeria climate vulnerability profile. https://www.climatelinks.org/sites/default/files/asset/document/nigeria_climate_vulnerability_profile_jan2013.pdf National Human Rights Commission (NHRC). (n.d.). State Offices. https://www.nhrc.gov.ng/index.php/regional-offices Statista. Nigeria: Urbanization from 2012 to 2022. https://www.statista.com/statistics/455904/urbanization-in-nigeria/ Federal Democratic Republic of Ethiopia. (1995). Constitution of the Federal Democratic Republic of Ethiopia. World Rainforest Movement (WRM). (November 25, 2008). Nigeria: Gas flaring – major contributor to climate change and human rights abuses. https://www.wrm.org.uy/bulletin-articles/nigeria-gas-flaring-major-contributor-to-climate-change-and-human-rights-abuses Babalola, E. (April 24, 2018). The effects of climate change in Nigeria. ASEC. https://asec-sldi.org/news/current/climate-change-nigeria/ Coyle, M. (June 29, 2020). The Supreme Court and the ‘Climate of the Era’. National Constitution Center. https://constitutioncenter.org/blog/the-supreme-court-and-the-climate-of-the-era LawTeacher. (January 7, 2021). Third generation human rights and good governance. https://www.lawteacher.net/free-law-essays/international-law/third-generation-human-rights-and-good-governance-international-law-essay.php UN Women. (February 28, 2022). Explainer: How gender inequality and climate change are interconnected. https://www.unwomen.org/en/news-stories/explainer/2022/02/explainer-how-gender-inequality-and-climate-change-are-interconnected Adelana, O. (March 11, 2022). Will Nigeria’s climate change law put the brakes on gas flaring? Climate Home News. https://www.climatechangenews.com/2022/03/11/will-nigerias-climate-change-law-put-the-brakes-on-gas-flaring/ Adebote, S. (August 31, 2022). Is this Nigeria’s ‘loudest’ statement yet on climate change? https://www.bond.org.uk/news/2022/08/is-this-nigerias-loudest-statement-yet-on-climate-change/ Proshare. (December 12, 2022). Deforestation and climate change crisis in Nigeria. https://www.proshare.co/articles/deforestation-and-climate-change-crisis-in-nigeria University of Exeter. (December 23, 2022). Penalties, Corruption and Legislation Are Failing to Deter Harmful Gas Flaring in Nigeria, Study Shows. University of Exeter.https://phys.org/news/2022-12-penalties-corruption-legislation-deter-gas.html Asgari, S. (November 27, 2023). A potential avenue for justice: The possibility of international criminal responsibility for gender-based violence caused by climate change. Oxford Human Rights Hub. https://ohrh.law.ox.ac.uk/a-potential-avenue-for-justice-the-possibility-of-international-criminal-responsibility-for-gender-based-violence-caused-by-climate-change/ Women for Women International. (December 1, 2023). Climate, Conflict and Gender Inequality. https://www.womenforwomen.org/blogs/climate-conflict-and-gender-inequality Stromsta, R. (May 30, 2024). Climate change, disasters, insecurity and displacement: The impact of flooding on youth marginalisation and human mobility in Nigeria. International Organization for Migration (IOM). https://environmentalmigration.iom.int/blogs/climate-change-disasters-insecurity-and-displacement-impact-flooding-youth-marginalization-and-human-mobility-nigeria Boyle, P. (June 6, 2024). Climate change hurts women more. AAMC. https://www.aamc.org/news/climate-change-hurts-women-more Countrymeters. (January 1, 2025). World population. https://countrymeters.info/en/World Footnotes [1] United Nations. (December 10, 1948). Universal Declaration of Human Rights (General Assembly Resolution 217A [III]). [2] Office of the High Commissioner for Human Rights. (n.d.). Universal Declaration of Human Rights (English). United Nations. <https://www.ohchr.org/sites/default/files/UDHR/Documents/UDHR_Translations/eng.pdf>. [3] United Nations. (June 14-25, 1993). Vienna Declaration and Programme of Action (A/CONF.157/23, Para. 5). World Conference on Human Rights, Vienna. [4] Nnamuchi, O. (2008). Kleptocracy and its many faces: The challenges of justiciability of the right to health care in Nigeria. Journal of African Law, 52(1), 10. [5] Organization of African Unity. (1981). African Charter on Human and Peoples’ Rights (OAU Doc. CAB/LEG/67/3 Rev. 5, 21 ILM 588 [1982], entered into force October 21, 1986). [6] Federal Republic of Nigeria. (1999). Constitution of the Federal Republic of Nigeria (Promulgation) Act (as amended). Cap C23, Vol. 3, Laws of the Federation of Nigeria (2004). [7] United Nations. (1993). Vienna Declaration and Programme of Action (VDPA), Para. 18. [8] Countrymeters. (January 1, 2025). World population. <https://countrymeters.info/en/World>. [9] United Nations General Assembly. (December 18, 1979). Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), GA Res 34/180; entered into force September 3, 1981). [10] African Union. (2003). Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), (CAB/LEG/66.6 [2003]; entered into force November 25, 2005). [11] Federal Democratic Republic of Ethiopia. (1995). Constitution of the Federal Democratic Republic of Ethiopia, Art. 35. [12] Okeke, U. P., Agbo, I. L., Igwe, S. O. (2024). Questioning the Nigerianness of Nigerian women. African Journal of Law and Human Rights, 8(2), 116. [13] LawTeacher. (January 7, 2021). Third generation human rights and good governance. <https://www.lawteacher.net/free-law-essays/international-law/third-generation-human-rights-and-good-governance-international-law-essay.php>. [14] Boyle, P. (June 6, 2024). Climate change hurts women more. AAMC. <https://www.aamc.org/news/climate-change-hurts-women-more>. [15] Desai, B. H., Mandal, M. (2021). Role of climate change in exacerbating sexual and gender-based violence against women: A new challenge for international law. Environmental Policy and Law, 51, 138. [16] Alonso-Epelde, E., García-Muros, X., Gonzalez-Eguino, M. (2024). Climate action from a gender perspective: A systematic review of the impact of climate policies on inequality. Energy Research & Social Science, 112, 103511. https://doi.org/10.1016/j.erss.2024.103511. [17] Ibid. [18] National Geographic. (n.d.). All about climate. <https://education.nationalgeographic.org/resource/all-about-climate/>. [19] Turrentine, J. (n.d.). What are the causes of climate change? Natural Resources Defense Council (NRDC). <https://www.nrdc.org/stories/what-are-causes-climate-change>. [20] Ibid. [21] Chapman, A. R., Ahmed, A. K. (2021). Climate justice, human rights, and the case for reparations. Health and Human Rights, 23(2), 83. [22] United States Agency for International Development (USAID). (January, 2013). Nigeria climate vulnerability profile. https://www.climatelinks.org/sites/default/files/asset/document/nigeria_climate_vulnerability_profile_jan2013.pdf. [23] Ekpe, P. U. (August 13, 2024). Climate change induced by human activity behind floods in Nigeria. Africanews. https://www.africanews.com/2022/11/17/climate-change-induced-by-human-activity-behind-floods-in-nigeria/. [24] Babalola, E. (April 24, 2018). The effects of climate change in Nigeria. ASEC. <https://asec-sldi.org/news/current/climate-change-nigeria/>. [25] Stromsta, R. (May 30, 2024). Climate change, disasters, insecurity and displacement: The impact of flooding on youth marginalisation and human mobility in Nigeria. International Organization for Migration (IOM). https://environmentalmigration.iom.int/blogs/climate-change-disasters-insecurity-and-displacement-impact-flooding-youth-marginalization-and-human-mobility-nigeria. [26] Ugwu, U. G., Ukamaka, T., Chinonye, C. P. (2023). Impact of climate change on the environment and human health in Nigeria: Implication for sustainable development. International Journal of Studies in Education, 19(1), 387. [27] World Rainforest Movement (WRM). (November 25, 2008). Nigeria: Gas flaring – major contributor to climate change and human rights abuses. https://www.wrm.org.uy/bulletin-articles/nigeria-gas-flaring-major-contributor-to-climate-change-and-human-rights-abuses. [28] Proshare. (December 12, 2022). Deforestation and climate change crisis in Nigeria. <https://www.proshare.co/articles/deforestation-and-climate-change-crisis-in-nigeria>. [29] Asgari, S. (November 27, 2023). A potential avenue for justice: The possibility of international criminal responsibility for gender-based violence caused by climate change. Oxford Human Rights Hub. https://ohrh.law.ox.ac.uk/a-potential-avenue-for-justice-the-possibility-of-international-criminal-responsibility-for-gender-based-violence-caused-by-climate-change/. [30] Ibid. [31] Asgari, S. (November 27, 2023). A potential avenue for justice: The possibility of international criminal responsibility for gender-based violence caused by climate change. Oxford Human Rights Hub. https://ohrh.law.ox.ac.uk/a-potential-avenue-for-justice-the-possibility-of-international-criminal-responsibility-for-gender-based-violence-caused-by-climate-change/. [32] Adelana, O. (March 11, 2022). Will Nigeria’s climate change law put the brakes on gas flaring? Climate Home News. https://www.climatechangenews.com/2022/03/11/will-nigerias-climate-change-law-put-the-brakes-on-gas-flaring/. [33] Pinho-Gomes, A.-C., Woodward, M. (2024). The association between gender equality and climate adaptation across the globe. BMC Public Health, 24, Art. 1394. https://doi.org/10.1186/s12889-024-18880-5. [34] Ibid. [35] Ibid. [36] Alonso-Epelde, E., García-Muros, X., Gonzalez-Eguino, M. (2024). Climate action from a gender perspective: A systematic review of the impact of climate policies on inequality. Energy Research & Social Science, 112, 103511. https://doi.org/10.1016/j.erss.2024.103511. [37] Ibid. [38] Ibid. [39] Ibid. [40] Ibid. [41] Stephanie, D., Suleiman, H. (2024). The climate crisis in Nigeria: Climate justice and women’s rights. Education as a Vaccine. https://www.evanigeria.org/the-climate-crisis-in-nigeria-climate-justice-and-womens-rights/. [42] Ibid. [43] UN Women. (February 28, 2022). Explainer: How gender inequality and climate change are interconnected. https://www.unwomen.org/en/news-stories/explainer/2022/02/explainer-how-gender-inequality-and-climate-change-are-interconnected. [44] UN Women. (2020). 2019–2020 Women, Peace and Security in Action. https://www.unwomen.org/sites/default/files/Headquarters/Attachments/Sections/Library/Publications/Women-peace-and-security-annual-report-2019-2020-en.pdf. [45] Le, M. V. (2022). Disasters, Climate Change, and Violence Against Women and Girls. Oxford Research Encyclopedias: Natural Hazard Science. [46] Ibid. [47] Ibid. [48] Ibid. [49] Olusegun, O., Oyelade, O. (2022). Access to justice for Nigerian women: A veritable tool to achieving sustainable development. International Journal of Discrimination and the Law, 22(1), 4. [50] Fapohunda, T., Stiegler, N., Bouchard, J. P. (2024). Climate change and violence against women. Elsevier Masson SAS, 112. [51] Ibid. [52] Alston, M., Fuller, S., Kwarney, N. (2025). Women and climate change in Vanuatu, Pacific Islands region. Gender, Place & Culture, 32(1), 83. [53] Fapohunda, T., Stiegler, N., Bouchard, J. P. (2024). Climate change and violence against women. Elsevier Masson SAS, 112; Fruttero, A., Halim, D., Broccolini, C., Coelho, B., Gninafon, H., Muller, N. (2024). Gendered impacts of climate change: Evidence from weather shocks. Environmental Research Climate. [54] Ibid., 9. [55] Alston, M., Fuller, S., Kwarney, N. (2025). Women and climate change in Vanuatu, Pacific Islands region. Gender, Place & Culture, 32(1), 83. [56] Fapohunda, T., Stiegler, N., Bouchard, J. P. (2024). Climate change and violence against women. Elsevier Masson SAS, 112. [57] Asgari, S. (November 27, 2023). A potential avenue for justice: The possibility of international criminal responsibility for gender-based violence caused by climate change. Oxford Human Rights Hub. https://ohrh.law.ox.ac.uk/a-potential-avenue-for-justice-the-possibility-of-international-criminal-responsibility-for-gender-based-violence-caused-by-climate-change/. [58] Ibid. [59] Desai, B. H., Mandal, P. (2021). Role of climate change in exacerbating sexual and gender-based violence against women: A new challenge for international law. Environmental Policy and Law, 51, 185. [60] Le, M. V. (2022). Disasters, Climate Change, and Violence Against Women and Girls. Oxford Research Encyclopedias: Natural Hazard Science, 5. [61] Fapohunda, T., Stiegler, N., Bouchard, J. P. (2024). Climate change and violence against women. Elsevier Masson SAS, 11. [62] Abebe, M. A. (2014). Climate change, gender inequality and migration in East Africa. Washington Journal of Environmental Law & Policy, 4(1), 104-140. https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=1034&context=wjelp. [63] Ibid. [64] Ibid. [65] Le, M. V. (2022). Disasters, Climate Change, and Violence Against Women and Girls. Oxford Research Encyclopedias: Natural Hazard Science, 5. [66] Ibid. [67] Desai, B. H., Mandal, P. (2021). Role of climate change in exacerbating sexual and gender-based violence against women: A new challenge for international law. Environmental Policy and Law, 51, 185. [68] Zavala, M. D., Cejas, C., Rubinstein, A., Lopez, A. (2024). Gender inequities in the impact of climate change on health: A scoping review. International Journal of Environmental Research and Public Health, 21(8), 1093. https://doi.org/10.3390/ijerph21081093. [69] Ibid. [70] Ibid. [71] Ibid. [72] Mandal, M. (2023). Climate change exacerbated sexual and gender-based violence: Role of the feminist foreign policy. Environmental Policy and Law, 53(5-6), 401-413. https://doi.org/10.3233/EPL-239018. [73] Ibid. [74] Ibid. [75] UN Framework Convention on Climate Change (UNFCCC). (May 9, 1992). S. Treaty Doc. No. 102-38, 1771 U.N.T.S. 107. [76] Paris Agreement to the UN Framework Convention on Climate Change. (November 4, 2016). T.I.A.S No.16 -1104. [77] The UN Committee on the Elimination of Discrimination against Women. (2018). General Recommendation No. 37 on the Gender-Related Dimensions of Disaster Risk Reduction in the Context of Climate Change (CEDAW/C/GC/37), Paras. 3, 8. [78] United Nations. (1995). Beijing Declaration and Platform for Action: Fourth World Conference on Women (A/CONF.177/20 and A/CONF.177/20/Add.1), goals 4, 11. [79] Ibid., para. 251. [80] African Charter on Human and Peoples’ Rights (n 4), Art. 24. [81] Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol), (n 9), Art. 18. [82] African Commission on Human and Peoples’ Rights. (May 22, 2017). State Reporting Guidelines and Principles on Articles 21 and 24 of the African Charter Relating to Extractive Industries, Human Rights and the Environment. Niamey, Republic of Niger, Para. 27. [83] African Union. (2022). African Union Climate Change and Resilient Development Strategy and Action Plan (2022-2032). 120. [84] Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa (Maputo Protocol). (n 9), Art. 1. [85] Federal Republic of Nigeria. (2021). Climate Change Act. Official Gazette of the Federal Republic of Nigeria. [86] Ibid., s. 24. [87] Ibid., s. 28. [88] University of Exeter. (December 23, 2022). Penalties, Corruption and Legislation Are Failing to Deter Harmful Gas Flaring in Nigeria, Study Shows. University of Exeter.https://phys.org/news/2022-12-penalties-corruption-legislation-deter-gas.html. [89]Climate Change Act. (n 46), s. 15(2). [90] Ibid., s. 34(1). [91] CFRN. (n 5), s. 36(8) and (12). [92] Federal Republic of Nigeria. (2015). Violence Against Persons (Prohibition) Act (VAPPA 2015). Official Gazette of the Federal Republic of Nigeria. [93] Ibid., s. 46. [94] Women for Women International. (December 1, 2023). Climate, Conflict and Gender Inequality. <https://www.womenforwomen.org/blogs/climate-conflict-and-gender-inequality>. [95] Ikimi, I. L. (2022). Law According to Justice or Justice According to Law: Examining the Judiciary as the Last Hope of the Common Man in a Democratic State, Journal of Legal Studies and Research, 8(5), 196. [96] SERAC v. Nigeria. (2001). (60) African Human Rights Law Reports. [97] Federal Republic of Nigeria. (1990). African Charter on Human and Peoples’ Rights (Ratification and Enforcement) Act (Cap. 10, Laws of the Federation of Nigeria). Official Gazette of the Federal Republic of Nigeria. [98] Gbemre v. Shell Petroleum Development Company of Nigeria Ltd. and Others. (2005). (6) African Human Rights Law Reports 152. [99] Centre for Oil Pollution Watch v. Nigerian National Petroleum Corporation. (2019). (5) NWLR (Pt. 1666) 518. [100] UN Women. (2019-2020). Women, Peace and Security in Action. (n 34). [101] Ibid. [102] Adebote, S. (August 31, 2022). Is this Nigeria’s ‘loudest’ statement yet on climate change? https://www.bond.org.uk/news/2022/08/is-this-nigerias-loudest-statement-yet-on-climate-change/. [103] Adelana. (n 26). [104] CFRN. (n 5), s. 17(2)(e) and s. 33. [105] Usman, D. J., Yaacob, N., Rahman, A. A. (2016). An Inquiry on the Affordability of Legal Services and the Appropriateness of the Regular Courts for Consumer Redress in Nigeria. Beijing Law Review, 7(2), 89. [106] Jerumeh, T. R. (2024). Incidence, Intensity and Drivers of Multidimensional Poverty among Rural Women in Nigeria. (2024). Heliyon, 10, 6. [107] Federal Republic of Nigeria. (2011). Legal Aid Act. Official Gazette of the Federal Republic of Nigeria. [108] Ibid., s. 6. [109] Ibid., s. 8(6). [110] Adeyemi, A. (2017). The Legal Aid Council in Nigeria: Challenges and Possible Solutions. SSRN. https://ssrn.com/abstract=3547025. [111] National Human Rights Commission (NHRC). (n.d.). State Offices. https://www.nhrc.gov.ng/index.php/regional-offices. [112] Statista. Nigeria: Urbanization from 2012 to 2022. https://www.statista.com/statistics/455904/urbanization-in-nigeria/. [113] Gbemre. (n 58). [114] Abanyam, N. L., Mnorom, K. (2020). Non‑Governmental Organizations and Sustainable Development in Developing Countries. Zamfara Journal of Politics and Development, 1(1), 1-17. [115] Magit v. University of Agriculture, Makurdi (2005). 19 NWLR (Pt. 959) 211, 259 D-E. [116] Coyle, M. (June 29, 2020). The Supreme Court and the ‘Climate of the Era’. National Constitution Center. <https://constitutioncenter.org/blog/the-supreme-court-and-the-climate-of-the-era>.
Maritime Piracy: A Maritime Crime with an International Dimension
Maritime piracy is recognized as an international crime, constituting a phenomenon that has posed a continual threat to the security and stability of the international community, undermining both freedom of navigation and the safety of international trade. Piracy increased markedly in the late twentieth century, becoming prominent in many regions around the globe. Because this crime does not target any one State in particular but endangers the security and integrity of the international community as a whole, pirates have been regarded as enemies of humanity, and their criminal acts are treated as directed against the international community. The gravity of this offence has compelled the international community to adopt the necessary measures and procedures to prevent, combat, and mitigate it, given its impact on global security and safety. In particular, the repercussions of piracy in the Gulf of Aden and off the coast of Somalia generated a broad international consensus on the need to put an end to this problem and to pool collective efforts in addressing it. A variety of methods and strategies have since been employed by States and international organizations to confront maritime piracy. The United Nations Security Council (UNSC), in numerous resolutions, has voiced profound concern over the rise in pirate attacks against vessels off Somalia’s shores, which have come to represent a genuine threat to ships’ safety and to navigation in that region. This concern has led to the provision of assistance to States that face challenges in dealing with this crime. Keywords: Sea pirate, seas, international efforts, crime, maritime piracy. Introduction The worldwide threat of piracy has existed since ancient times, and it disrupts personal safety and international commerce, which leads to political and security problems for nations. The crime received international recognition during the late twentieth century as media and communication technologies advanced rapidly. Maritime peace and security face an escalating danger that threatens the fundamental bases that support worldwide trade operations across oceanic routes. The international community faces a threat from pirates who attack all ships because they do not discriminate against specific countries, which makes them hostes humani generis—enemies of all humanity—who harm the entire global population. Under international customary law, states can seize pirate vessels on the high seas or in maritime areas outside state jurisdiction, while various international treaties also criminalize this offense. The crime receives criminalization through international customary law because it allows states to seize pirate vessels operating beyond state jurisdictional boundaries on the high seas and in unclaimed maritime territories. Accordingly, the central question arises: What is the specific nature of maritime piracy? Methodology The research employs a doctrinal legal analysis complemented by comparative and case-based methods. The doctrinal approach examines the evolution of the international legal framework on maritime piracy, from the 1958 Geneva Convention on the High Seas to the 1982 United Nations Convention on the Law of the Sea (UNCLOS) and subsequent instruments. To reinforce the theoretical framework with empirical evidence, the study incorporates data and official reports from leading international institutions — including the International Maritime Organization (IMO, 2024), the International Maritime Bureau (IMB, n.d.), and the United Nations Office on Drugs and Crime (UNODC, 2020; 2021; 2023). These sources, such as the IMO’s Global Integrated Shipping Information System (GISIS) and UNODC’s Global Maritime Crime Programme and Pirates of the Niger Delta reports, provide verified statistical data and analytical insights on piracy trends, enforcement outcomes, and regional security initiatives. In addition, the methodological framework is enriched by recent Scopus-indexed academic research applying quantitative and theoretical approaches to maritime piracy. Spatial and temporal models of piracy hotspots are considered (Tsioufis et al., 2024), along with theoretical interpretations of cyclical piracy dynamics (Frederick Boamah, 2023) and socio-economic perspectives highlighting the vulnerability of fishers and coastal communities (Amali Kartika Karawita, 2019). This combined doctrinal–empirical–analytical design ensures both normative depth and data-based reliability. Accordingly, the study is structured around two main sections: the conceptual framework of maritime piracy (Section One) and the international efforts to combat this crime (Section Two). To address this issue, we have decided to explore the conceptual framework of maritime piracy (Section One) and the international efforts to combat this crime (Section Two). Section I: The Conceptual Framework of Maritime Piracy Maritime piracy is considered one of the oldest issues that threatens the security and safety of maritime navigation, and it has undergone significant development. Therefore, a specific concept has been assigned to this crime (First Requirement). Additionally, this crime can only occur when its elements are present (Second Requirement). A) The Concept of Maritime Piracy Several definitions of maritime piracy have been proposed, including general definitions (Section One) and legal definitions (Section Two), along with an examination of certain regions where maritime piracy is most prevalent (Section Three). 1. The General Definition of Maritime Piracy Maritime piracy is defined as a maritime crime that involves the robbery and plundering of ships, their crew, or the goods they carry. Many researchers have defined maritime piracy as the commission of one or more acts of violence against individuals and property in maritime facilities. Maritime piracy is defined as theft committed at sea or sometimes on the shore by an agent not paid by any state or government. Some consider piracy to encompass all acts of violence committed against persons or property without legal justification on the high seas. Others define it as an armed assault carried out by a ship on the high seas, without authorization from any state, to obtain material gains through the seizure of ships, cargo, or persons.[1] 2. The Legal Definition of Maritime Piracy The 1958 Geneva Convention on the High Seas was the first official framework for international law on maritime piracy. According to Article 15, the Convention defines piracy as having the following parts: Any act of violence, illegal detention, or depredation perpetrated for personal gain by the crew or passengers of a private vessel or aircraft, aimed at: Another ship or plane on the open sea, or people or property on board such a ship or plane; Against another ship, plane, person, or thing in a place that is not under the control of any state; Any voluntary involvement in the operation of a vessel or aircraft with awareness of its participation in piracy; Any action that intentionally incites or helps someone commit the acts described in paragraphs (1) and (2).[2] Similarly, Article 101 of the 1982 United Nations Convention on the Law of the Sea (UNCLOS) defines piracy as any of the following acts: Any unlawful act of violence, incarceration, or theft committed by passengers or crew members of a private aircraft or ship for their own benefit and directed: On the open sea, against another ship or plane, or against people or property on board; Against another ship, plane, person, or piece of property in a place that no state has control over; Any voluntary involvement in the operation of a ship or plane while knowing that it is engaged in piracy; Any act that incites the commission of one of the actions described in subparagraphs (a) or (b), or that intentionally facilitates their commission.[3] It is clear from this article that the location of the offense is a defining element: piracy must occur either on the high seas or in areas beyond the jurisdiction of any state. This principle effectively places the duty of prosecution on all states, in accordance with the principle of universality. Conversely, anti-piracy measures within territorial waters fall under the exclusive jurisdiction of the coastal state; otherwise, such action would constitute unlawful interference with state sovereignty.[4] It should also be noted that the definition of piracy in Article 101 of UNCLOS is restricted to unlawful acts committed in international waters. Acts of armed robbery at sea that occur within territorial waters are excluded, since international law does not permit the pursuit of pirates into the territorial jurisdiction of a sovereign state. In such cases, the coastal state itself bears sole responsibility for safeguarding its coasts and maritime domain. Moreover, the definition requires the involvement of at least two vessels: one being the victim, and the other serving as the platform from which the pirates launch their attack.[5] While the 1982 UNCLOS did not substantially innovate upon the definition found in the 1958 Geneva Convention, a slight evolution is discernible. For the first time, it introduced the notion of “private ends” as the motivation behind acts of piracy (Article 101(a)). However, this terminology remains vague and open to multiple interpretations, as “private ends” may be construed flexibly depending on the interpreter’s perspective. It would arguably have been more precise for the drafters to specify that such ends are intended to achieve material gain or profit.[6] The International Maritime Organization (IMO) oversaw the signing of the 1988 Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation (SUA Convention) in Rome. UNCLOS received partial criticism, which led to this convention being established as a response. According to Article 3(1) of the SUA Convention, the definition of unlawful acts extends beyond piracy and includes: Any person who unlawfully and intentionally commits an offense through the following actions: Seizes or exercises control over a ship by force, threat of force, or intimidation; A person who performs violent acts against ship personnel will face prosecution when the act threatens ship navigation safety; Someone who damages or destroys a ship or its cargo in a way that could make it dangerous to navigate; A person who puts or causes to be put on a ship a device or substance that could destroy or damage the ship and make safe navigation impossible; A person who seriously damages maritime navigational facilities or seriously interferes with their operation in a way that endangers safe navigation; A person who provides false information that creates a danger to safe navigation; A person who harms or takes the life of someone while committing the mentioned offenses; The SUA Convention provides the necessary legal framework to cover the gaps that UNCLOS leaves regarding territorial application, even though piracy remains unmentioned in its text. The SUA Convention surpasses UNCLOS by protecting unlawful acts which take place in territorial waters, together with archipelagic waters and internal waters as specified in Article 4. This framework was further reinforced by the 2005 Protocol to the SUA Convention, which expanded the definition of unlawful acts by adding new provisions under Articles 3 bis, 3 ter, and 3 quater. These amendments incorporated additional offenses, thereby enhancing the comprehensiveness of the legal regime governing maritime security. The 1988 Rome Convention, along with its 2005 Protocol, establishes a complete legal framework that protects maritime vessels from all potential forms of attack. The definition establishes boundaries that define both the goals and methods of these activities, thus making it applicable to a wider range of activities. The law protects all attacks against ships, which include those carried out by crew members and passengers against their own vessel. The 1958 Geneva Convention, together with the 1982 UNCLOS, failed to address this issue, which resulted in unclear interpretations of their rules.[7] 3. Manifestations of Maritime Piracy in Selected Regions: The Somali Coast, the Gulf of Guinea, and Southeast Asia as Case Studies The Somali coastline stretches about 3,700 kilometers, and it overlooks vital international sea routes that connect the Indian Ocean and Arabian Sea to the Red Sea. The organized groups and gangs have proved their ability to control the area successfully. The groups maintain their own intelligence operations, which produce sophisticated maritime piracy activities through their combination of training and weaponry, and operational readiness. The group operates through shallow coastal waters where they use captured vessels as bases to conduct their operations while maintaining multiple armed support ships that carry weapons and fuel, and other necessary supplies. The target vessel detection leads them to send out fast boats, which carry armed personnel who use rifles and occasionally rocket-propelled grenades. The attackers use rope ladders to board their targets while they disguise their vessels as fishing boats to trick their victims and prevent early detection. These groups use advanced communication equipment, which enables them to gather complete vessel intelligence before they start their attacks. Their operations are not random; rather, they carefully assess the type of ship, its cargo, and prevailing wind conditions. The experts who work in maritime fields say they spend no more than fifteen minutes to take control of the ship they want to capture. The main objective of these criminals involves demanding high ransom payments from victims who want to free their hijacked ships. The maritime piracy activities that take place in Somali waters, as well as the Red Sea, create major security threats to nations because this waterway operates as a vital shipping route for international trade. The Red Sea creates an important shipping connection between seas and open waters while linking various continents together. The waterway serves as an essential shipping path for oil tankers, which move crude oil from the Arabian Gulf and Iran to international customers, and as a key trade route between Europe and Asia. The region has become dangerous for ships to sail because pirate vessels have increased their numbers and their aggressive behavior. Piracy operations have developed into an important business for various local communities, who now depend on them for their survival. The financial benefits from this activity exceed the dangers that exist when operating at sea. The modern form of piracy has developed into a profitable business enterprise.[8] The spread of maritime piracy along the Somali coast can be attributed to two main categories of causes: 3.1 Internal causes The problem of maritime piracy in Somalia emerged around 1991, coinciding with the outbreak of civil war. The central government lost control to insurgent groups, which caused wide instability to spread across the area. The region of Somaliland established independence through separatist forces, but international bodies refused to acknowledge this new political situation. The situation caused Somalia to transform into a nation that experienced deterioration and widespread insecurity, and lawlessness throughout its entire territory.[9] The arrival of foreign ships into Somali waters became a major factor because local people viewed these vessels as foreign invaders who took advantage of their maritime territory. The Somali coast faced mounting pressure from foreign fleets that used modern trawling equipment to rapidly exhaust the abundant marine resources of the area. The Somali coastal area became a dumping ground for toxic waste because foreign ships started to dispose of their waste materials in this region. The local fishermen suffered a total loss of their daily fishing activities. The people of the region used basic tools to fight against foreign control, but their efforts led to harsh responses from the invaders. The fishermen reacted to foreign ships destroying their equipment by taking matters into their own hands because international organizations failed to protect them from illegal fishing activities. 3.2 External causes There are several external factors that contributed, whether directly or indirectly, to the rise and spread of maritime piracy in Somalia. The most significant of these external causes was the American intervention in Somalia under the auspices of the United Nations in 1992. A massive force of 28,150 soldiers, in addition to 2,300 troops from 23 other countries, was deployed to disarm the militias. However, the outcome was the opposite of what many Somalis had hoped for. The confrontations resulted in casualties on both sides and caused extensive human and material losses. Moreover, these events left a profound psychological impact on Somalis, who perceived the intervention as an invasion that must be resisted. Consequently, many resorted to attacking ships on the high seas, which they regarded as a form of national defense. It can therefore be said that acts of maritime piracy off the Somali coast have had a negative impact on the economies of the states bordering the region, on international trade in general, and on trade within the Arab and African regions in particular. These acts have increased the costs of international commerce due to the rise in commodity and product prices, driven by the additional expenses required for protecting large cargo vessels and by the higher insurance premiums imposed on ships and their cargoes by insurance companies. In addition, the states to which hijacked vessels belong, as well as the shipping companies that own them, are forced to bear the costs of paying ransoms demanded by pirates in exchange for the release of ships and their cargoes, especially oil tankers. Furthermore, victims themselves suffer substantial damages and losses. To avoid the risk of exposure to maritime piracy in regions where such attacks are widespread, many ships and vessels have altered their routes, diverting instead to the Cape of Good Hope. This rerouting has resulted in increased costs, greater burdens, and longer travel times for voyages to reach their destinations.[10] The Gulf of Guinea serves as a vital link between regional nations and international markets through its seaport trade operations for importing and exporting goods and services to major worldwide markets. The Gulf region holds substantial natural resources through its extensive marine life deposits and forest products, particularly fish and timber. The lack of strong national regulations for extraction and export makes the Gulf’s resources highly susceptible to various forms of exploitation. The maritime insecurity in this region remains high because pirates continuously conduct attacks, which use innovative techniques to kidnap seafarers. The accumulation of maritime crimes has made it essential to implement a unified strategy for securing the region’s seas. South China Sea piracy has existed since the 16th century through the 19th century. British naval forces, along with other state navies, effectively reduced pirate operations that took place on the South China Sea coastal areas. The end of colonial rule brought piracy back into existence. Most coastal nations inherited insufficient military forces, along with economic and political instability. Multiple scholars have demonstrated that the return of piracy emerges from widespread poverty, together with social inequality, alongside corrupt practices and nepotism, which postcolonial governments failed to address through proper governance and economic growth strategies. Between 1983 and 2007, about 63% of all reported maritime piracy incidents took place in the Gulf of Guinea. The Gulf of Guinea remains under international scrutiny as a piracy-prone area, even though piracy rates decreased significantly in 2021 because recorded attacks happened every four to five days throughout 2016.[11] It can therefore be argued that piracy has become a widespread phenomenon in the Gulf of Guinea since 2003–2004, making it undoubtedly the most dangerous region today. The Gulf, surrounded by mangrove forests and difficult-to-penetrate inland waters, is of strategic importance, as it holds the seventh-largest oil reserves in the world and the ninth-largest reserves of natural gas. It supplies the United States with 15% of its oil imports. While maritime traffic is not as dense as in the Strait of Malacca or the Bab el-Mandeb Strait, the Gulf is home to extensive industrial activity, particularly oil extraction, which requires reliable and predictable supply operations (supply vessels). The platforms are located about 20 nautical miles offshore, placing them either within territorial waters or in international waters. The Port Harcourt area, at the mouth of the Bonny River, is the most affected, as the city serves as a major hub for supplies, equipment, and the movement of personnel between offshore platforms and the mainland.[12] According to the report prepared by the Secretariat of the United Nations Security Council on the main developments, trends, and considerations regarding piracy and armed robbery in the Gulf of Guinea, these activities have evolved in both nature and frequency. In June 2021, the Global Maritime Crime Programme of the United Nations Office on Drugs and Crime (UNODC) traced the origins of piracy and armed robbery in the Gulf of Guinea to around 2005, when armed groups in Nigeria’s Niger Delta began attacking oil and gas infrastructure. At that time, incidents classified as “break-ins and thefts” accounted for 70% of reported cases, and more than 70% of all vessels attacked were support ships operating in the oil and gas sector. Between 2005 and 2009, only about 15% of reported piracy incidents in the region fell under the category of “kidnapping for ransom”. However, the situation changed between 2010 and 2015, as certain pirate groups began to combine kidnapping of individuals with hijacking of ships, targeting primarily tankers carrying refined petroleum products—a pattern known as “oil piracy”. Due to several factors, including the decline in global oil prices, incidents of tanker hijackings gradually decreased over time and had virtually disappeared by 2016. From 2016 to 2021, pirate groups in the Gulf of Guinea shifted their operational patterns, focusing increasingly on kidnapping for ransom. According to a study conducted by the Global Maritime Crime Programme of the United Nations Office on Drugs and Crime (UNODC)—which compiled data from multiple sources over the 2018–2020 period—this form of piracy peaked in 2020, when reports indicated that nearly 140 individuals were kidnapped at sea. The pirate groups of previous years showed different behavior because they attacked all types of vessels without discrimination, while they extended their reach into distant offshore waters. The pirates demonstrated their ability to operate further from shore through multiple reported events, which took place at distances exceeding 200 nautical miles from the coast. Positive developments became visible during the reporting period, while the previous events took place. The number of piracy and armed robbery incidents at sea, along with ransom kidnappings, decreased from 123 cases in 2020 to 45 cases in 2021. The Interregional Coordination Centre (ICC) for the Regional Strategy implementation of Maritime Safety and Security in Central and West Africa shows that maritime crimes stayed at a steady level during January to March 2021 because 20 piracy incidents took place during this period. The number of maritime criminal activities has continued to decrease since April 2021 in the Gulf of Guinea, which includes both piracy and armed robbery offenses. For example, the Interregional Coordination Centre (ICC) recorded only nine incidents in the second quarter of 2021, and just eight incidents in the fourth quarter of the same year. The ICC recorded sixteen maritime crime cases during the first half of 2022, which showed a continuing downward trend from the previous year. The Global Integrated Shipping Information System (GISIS) of the International Maritime Organization (IMO) supported this pattern through its records, which showed thirteen piracy and armed robbery incidents in the Gulf of Guinea from January to July 2022.[13] The decrease in piracy activities throughout the Gulf of Guinea results from various connected elements. The Nigerian and Togo piracy convictions from July 2021 serve as a deterrent, and the Nigerian Navy has increased its naval patrols. The maritime security partners established better regional cooperation, which led to enhanced surveillance and response capabilities. The EU’s Coordinated Maritime Presences (CMP) initiative keeps Spanish, Italian, Portuguese, Danish, and French naval forces stationed in the area, which adds to the deterrent effect of outside naval deployments in the Gulf of Guinea. The navies of Russia, Brazil, Morocco United Kingdom United States, and India maintain regular patrols which have enhanced maritime security and reduced piracy incidents in the Gulf of Guinea. Pirate operations have spread across different global territories, with Southeast Asia becoming the primary area of operation. The ongoing effects of the worldwide financial collapse created conditions that led to increased criminal activities in this area. The attacks targeted the waters of the South China Sea and Malaysia, particularly in the zone stretching from northern Sumatra to the Philippine Islands. The South China Sea serves as a major shipping route that connects the Indian Ocean with the Pacific Ocean. The region contains strategic straits, including the Strait of Malacca and Singapore Strait, and also the Lombok and Sunda Straits of Indonesia. These maritime corridors experience about 8,000 vessels passing through them each year. However, the region’s geographic characteristics—its vast number of islands and complex terrain—have made it especially vulnerable to piracy. The natural environment provided ideal conditions for pirates to operate because they could attack quickly and then escape rapidly with their fast boats. International law defines maritime territories through coastal state territorial waters and archipelagic waters, contiguous zones, and related areas, which leave small portions of ocean classified as high seas. The Strait of Malacca operates as a vital international shipping corridor that runs through the territorial waters of three nations, including Malaysia, Singapore, and Indonesia. The geographic location enables pirate vessels to move between different states’ waters, which creates challenges for authorities to fight maritime piracy. The situation becomes difficult to enforce because the involved states have not established particular legal frameworks for enforcement. The states need to agree on joint actions and maintain open communication to fight against piracy in these areas. Until 1980, piracy existed in East Asia but had not yet reached a large scale. The refugee crisis expanded because Vietnamese and Cambodian people fled their countries during multiple migration waves, which people called the “Boat People”. The 1958 Convention on the High Seas required Malaysia and Thailand to begin taking security measures in 1981 as both countries became signatories. The enforcement activities followed the rules stated in Articles 14 and 21 of the Convention. The implemented measures failed to control the increasing crime rate despite their implementation. The International Maritime Bureau (IMB) issued a warning to the global community about increasing maritime piracy incidents, which became more prevalent after 1992, especially in Southeast Asia. The financial crisis of 1997 in Asia made the situation worse than before. The economic crisis in Asia forced many Indonesians to relocate to Singapore because they needed improved financial prospects, so they moved to islands near Singapore, which included Riau Islands and Batam, and Bintan. The free-trade zone in Singapore experienced major population growth during this time, but it faced negative impacts from the regional economic slump. The maritime piracy incident index for the year 2000 showed a significant increase when compared to previous years. The Strait of Malacca experienced 75 pirate attacks along with 119 additional piracy events throughout Southeast Asia during that year. The alarming statistics forced coastal states to increase their maritime security measures while fighting piracy more aggressively. The MALSINDO Regional Agreement came into existence through this initiative when Malaysia joined Singapore and Indonesia to form a partnership in 2004. The agreement established joint naval patrol operations, which led to a significant decrease in piracy activities by 2009 around the Natuna and Anambas and Mangkai, and Tioman Islands. The operational methods of pirates in Southeast Asia, which people call modus operandi, have undergone continuous development from a legal perspective. Pirate operations start on land before using “mother ships” to move from the territorial waters of states to reach open sea areas. Southeast Asian pirates have adopted Somali piracy methods to increase their operational activities, according to recent reports.[14] 4. Examples of Ships Subjected to Maritime Piracy This section presents two illustrative cases of ships that were subjected to acts of maritime piracy: the Sirius Star and the Maersk Alabama. 4.1 The hijacking of the Sirius Star: Maritime piracy off the coast of Somalia reached unprecedented levels in 2008, the year when the massive oil tanker Sirius Star was hijacked. That same year, pirates began targeting larger vessels carrying cargoes of far greater value than ever before. The French luxury yacht Le Ponant, along with its thirty crew members, became a hostage to Somali pirates in April of that year. The military forces of France, who were stationed in Djibouti, moved to the incident location to free the captured crew members. The pirates received a monetary payment, which served as ransom to obtain their release. The Ukrainian vessel M/V Faina became a victim of Somali pirates who called themselves the Central Regional Coastal Guards on September 25, 2008, during its journey to Mombasa port in Kenya. The ship transported military equipment which had a value of about thirty million dollars, including multiple T-72 tanks and RPG launchers, and anti-aircraft guns. The operation stood out because the pirates usually attacked civilian ships and oil tankers instead of military vessels. The vessel was released only after its owner paid a ransom exceeding 3.2 million U.S. dollars, following threats by the pirates to blow up the ship. The Sirius Star incident occurred on November 17, 2008, when a group of pirates hijacked the supertanker, which was sailing under the Liberian flag and bound for the United States via the Cape of Good Hope. The hijacking took place approximately 450 nautical miles southeast of Mombasa, near the coast of Kenya. The Sirius Star tanker operated with a crew of twenty-five people who came from multiple countries, which included Croatia and Britain and the Philippines and Poland, and Saudi Arabia. The tanker served as the second unit within a series of six identical vessels built by Vela International Marine Ltd., which functions as a maritime transport company under Saudi Aramco. The company operates a large fleet of vessels of different types, sizes, and functions, all constructed by Daewoo Shipbuilding &amp; Marine Engineering (DSME), a South Korean shipbuilding corporation. Vela International functions as a crude oil transportation company that links Ras Tanura Port in Saudi Arabia to European destinations and Gulf of Mexico ports through the Suez Canal and Cape of Good Hope routes. The Sirius Star stood as DSME’s 100th supertanker, which they built at their Okpo Shipyard located in South Korea. 4.2 The hijacking of the Maersk Alabama by Somali pirates The worldwide public drew their attention to the Maersk Alabama hijacking by Somali pirates in April 2009 because it exposed dangerous maritime security weaknesses and revealed multiple economic and political consequences for the surrounding region. A group of pirates operating in Somali waters captured this vessel because they wanted to obtain ransom payments. The international media spotlighted this event because Richard Phillips became a hostage when the ship’s captain, which led to a situation that required the United States military to perform a direct rescue operation. The Maersk Alabama operated as a cargo vessel in Somali waters, which served as a known hotspot for maritime piracy activities. The political instability in Somalia and the widespread poverty across the country have been among the principal causes behind the proliferation of piracy in the region. The current circumstances make vessels operating near Somali waters at high risk of being targeted by attacks. The Maersk Alabama served as one of the targeted vessels which operated as a container ship built to handle massive amounts of goods through shipping containers. The ship played a vital role in worldwide trade because it could transport various types of cargo including industrial products and consumer goods. The Maersk Alabama followed specific shipping routes that traveled through important global trade routes that connected different international ports. The trade routes faced ongoing pirate threats because criminal organizations took advantage of Somalia’s economic difficulties. The event shows how vital maritime security functions to protect worldwide trade operations from increasing security threats. The incident began in April 2009, when the Maersk Alabama was sailing from the Port of Oman to Mombasa, Kenya. The hijacking incident, which occurred in the Gulf of Aden, became a major international news story. The ship’s American crew became victims of the pirates as they captured the vessel during their assault. Captain Richard Phillips of the Maersk Alabama received warnings about pirate attacks in Somali waters before he started his voyage. He chose to ignore the advice that was given to him. The next day, the crew detected a distant small boat that carried four armed pirates. The crew tried to defend their ship by firing flares and spraying water, but the pirates managed to board the vessel and take control. The attackers faced resistance from Captain Phillips and his crew members until they managed to capture some of them, who took hostages on the ship’s bridge. The Maersk Alabama hijacking by Somali pirates became the most notorious maritime kidnapping event of the 21st century, which drew worldwide attention because of its intense hostage situation. The legal response to the incident involved rescue operations, judicial proceedings in the United States, and international cooperation in the broader fight against maritime piracy. The United States government reacted immediately by deploying U.S. naval, air, and ground forces to conduct a rescue mission. Captain Phillips remained captive on a small lifeboat in open waters while the pirates tried to reach the Somali coast. The U.S. Navy forces executed a precise rescue mission on April 12, 2009, which led to the death of three Somali pirates who held the captain hostage and the capture of one pirate alive. The rescue operation brought Captain Phillips back to safety with physical health intact, but his mental state remained severely affected by the traumatic experience. The surviving pirate, Abduwali Abdukhadir Muse, was apprehended by U.S. forces and brought to the United States to stand trial. He was one of the five pirates involved in the hijacking of the Maersk Alabama. Muse faced trial at a U.S. federal court in New York, where he admitted guilt to piracy and hostage-taking, and robbery charges during his 2010 plea. The federal court delivered a prison sentence to him in the United States in 2011. The United States government showed its commitment to justice and maritime crime prevention through its naval rescue operation and pirate prosecution. The case shows how international piracy response requires multiple countries to work together because piracy activities span across different national territories and involve various international participants. The analysis requires examination of social and economic factors that sustain piracy activities across international waters. The Maersk Alabama incident reaffirms the significance of applying international legal principles in combating transnational crimes such as maritime piracy. The prevention of crime requires both effective law enforcement and crime prevention systems to operate together. The United States executed all necessary legal steps through its rescue operation and offender prosecution to show its commitment toward an open and rigorous criminal justice system for handling these serious crimes. The case established a key legal precedent that became part of international law for fighting maritime piracy. Muse stood with other pirates who faced death or capture during the Maersk Alabama rescue operation. Authorities transferred most of the arrested individuals to courts that held jurisdiction over their crimes because these offenses took place either inside their borders or involved their citizens. The world started paying attention to piracy when the Maersk Alabama got hijacked in 2009 because it showed how dangerous piracy had become in the Gulf of Aden and near Somalia. The hijacking demonstrates how piracy has transformed into a major problem that disrupts worldwide commercial shipping operations. The international community responded to this threat by increasing its anti-piracy efforts through multiple international naval patrols. The European Union operates Operation Atalanta as its main security initiative to protect shipping operations in this particular area. The creation of an international task force that includes maritime nations like the United States and the United Kingdom represents a major development in this field. The joint initiative focuses on enhancing maritime security through efforts to decrease piracy attacks, which damage worldwide economic systems while protecting seafarers who operate in dangerous maritime zones. Ship hijackings in international waters, such as the Maersk Alabama incident, create two major problems because they put human lives in danger and violate essential human rights to safety and secure employment. The protection of sailors’ rights and the international legal order requires essential measures to increase maritime surveillance and worldwide cooperation against piracy. International trade route disruptions through criminal activities lead to major financial harm, which affects both state entities and business organizations, thus creating long-term economic damage. The world will experience major economic stability benefits through international collaboration to eliminate piracy, and when nations establish efficient preventive systems. The Maersk Alabama hijacking by Somali pirates demonstrated why international and domestic legal systems must work together to fight cross-border offenses and protect human rights while combating piracy and hostage situations in international waters. The United States government deployed U.S. Navy special forces to conduct rescue operations because international law permits states to protect their citizens when they face threats from hostage-taking or piracy. The battle against transnational criminal activities depends on international legal frameworks, which define state powers to enforce laws beyond their national limits. The United States used its domestic court system to handle the Abduwali Abdukhadir Muse trial, which took place within its borders for crimes committed outside its territory. The case demonstrates how international piracy requires worldwide cooperation because it occurs in international waters and affects various international criminal offenses that need a collective response. Operation Atalanta and the international working group established by the EU show how multinational collaboration becomes essential for addressing this threat. The solution to piracy requires maritime stakeholders to work together because piracy disrupts international trade routes. Piracy continues to be a problem, which has led to debates about creating international courts or national courts that would handle cases of crimes committed in international waters to hold perpetrators accountable. The case shows how piracy crimes get handled through the combined use of international law and domestic criminal law and interstate cooperation. The system achieves victim justice through its dual role of defending global maritime security and protecting the interconnected world from rising security threats.[16] B) The Elements of the Crime of Maritime Piracy For the crime of maritime piracy to be established, all of its constituent elements must be present. These include the legal element (Section One), the material element (Section Two), the moral element (Section Three), and finally the international element (Section Four). 1. The Legal Element of the Crime of Maritime Piracy The legal element of any crime refers to the existence of a legal provision that criminalizes the act and prescribes a penalty for it. Maritime piracy is criminalized under public international law, both through its established principles and through international conventions, given that such acts involve assaults on persons and property.[17] Accordingly, the legal element of the crime of maritime piracy refers to the commission of acts of plunder by a ship’s crew or by passengers on board. It makes no difference whether such acts are directed against property or individuals, nor whether they involve physical harm or merely the restriction of the victims’ freedom. However, the mere commission of an act of violence or coercion does not, in itself, constitute piracy. For example, an individual who kills another person on board a ship or steals his property is not considered a pirate but is instead deemed to have violated the laws governing the vessel’s flag state. Thus, for coercion to qualify as an element of piracy, it must be directed against another ship, or the ship itself must play a role—whether passive or active—in the acts that constitute piracy.[18] Article 101 of the 1982 UNCLOS defines piracy as illegal acts of violence or detention or depredation by private ship or aircraft crew members or passengers which target vessels or aircraft or property or persons aboard in high seas areas outside state jurisdiction. The article defines specific criminal activities that constitute piracy. Any person who knowingly participates in operating a vessel or aircraft that functions as a pirate ship or aircraft commits an unlawful act of violence. Those who provoke or deliberately help in the commission of the acts outlined in subparagraphs (a) or (b) of Article 101 face legal consequences according to this provision.[19] 2. The Material Element of the Crime of Maritime Piracy The material element of maritime piracy consists of acts of violence or detention, or depredation, which the crew of a ship or aircraft or its passengers carry out. The 1958 High Seas Convention, together with the 1982 UNCLOS, specifically defines these unlawful acts. The illegal acts target persons and property alike, while physical injuries or freedom restrictions remain irrelevant to the definition. The critical factor remains that violent acts must be executed against a ship or aircraft that functions as the criminal instrument. The legal framework of piracy excludes attacks between individuals on board when the ship or aircraft remains uninvolved in the offense, since these incidents become flag state violations. The crime of maritime piracy exists even if the perpetrator fails to complete the entire act since the attempt to perform the material act stands as sufficient. The material element of piracy reaches completion only when the act of piracy happens on the high seas or in territories that fall outside any state’s jurisdiction. According to international law, piracy does not exist when the act occurs in a state’s territorial sea or exclusive economic zone because the state holds full jurisdiction over these areas. To prevent impunity, Article 101, paragraph 3, of UNCLOS criminalizes any act of incitement to commit the offenses specified in paragraphs (a) and (b), as well as the intentional facilitation of such acts. Furthermore, under Article 101, paragraph 2, liability also extends to any person who participates in the commission of acts of piracy.[20] 3. The Mental Element of the Crime of Maritime Piracy This element is one of the most important aspects of crimes in general. It refers to the offender’s intention to commit the legally prohibited act, with full awareness and understanding of the crime and its consequences. A group of international criminal law scholars considers maritime piracy to be an intentional crime, where the criminal intent consists of two elements: 3.1 Knowledge Knowledge refers to the awareness of the facts surrounding the perpetrator, particularly the awareness of the activity the perpetrator is about to engage in (the material element of the crime). The pirate must know that the actions they are committing constitute the crime of maritime piracy. If the pirate commits these acts while believing there is a legal justification for them, criminal intent is not present. 3.2 Intention Intention means that the perpetrator’s will is directed toward achieving the result of their act.[21] Maritime piracy is considered a crime with multiple intents, as the perpetrator aims to steal or plunder property or goods. However, a more severe outcome may occur, such as when pirates murder the crew members, commit acts of torture, pollution, or similar crimes. In such cases, the penalty for the more serious crime is applied.[22] 4. The International Element of Maritime Piracy The international element is a fundamental condition for the crime to be considered international. There are differing opinions in international legal doctrine regarding its nature. Due to the limitations of various doctrinal approaches in providing a precise standard free from criticism, some scholars have adopted a criterion characterized by development and flexibility, which is found in international law. This criterion is the “international interest” standard, which distinguishes between international legal actions and domestic legal actions. It is a flexible standard that aims to ensure the security, stability, and welfare of the international community. It is notable that the crime of maritime piracy does not specifically threaten a particular state but instead threatens the security and safety of the entire international community. Therefore, it is free to describe the unlawful conduct as constituting an international crime, as it infringes upon the international interest worthy of protection under international criminal law, which is the safety of maritime shipping activities and navigation. It also poses a threat to international peace and security in the region.[23] Section II: International and Regional Efforts to Combat Maritime Piracy Given the severity of the crime of maritime piracy, many efforts have been made at both the international and regional levels to combat and reduce the crime of maritime piracy. A)International Efforts to Combat Maritime Piracy International efforts to reduce the crime of maritime piracy are reflected in the efforts of international institutions (First section) and international agreements (Second section). 1. Efforts of International Institutions to Combat the Crime of Maritime Piracy Expressing deep concern over the growing prevalence of armed robbery and ship hijackings off the coast of Somalia in recent years, the UNSC issued several resolutions, among them the following: Security Council Resolution 1814 (15 May 2008, Session 5893): This resolution served as a preliminary step regarding the issue of maritime piracy. In paragraph 11, it expressed support for the contributions made by certain states and regional organizations to protect humanitarian aid convoys to Somalia. The resolution also emphasized, in its preamble, the importance of building institutions in Somalia to end violence and conflict, identifying these as the root causes of the country’s instability. Furthermore, it highlighted the Council’s intention to strengthen the effectiveness of arms embargo measures and to take action against those obstructing or undermining legitimate political processes;[24] Security Council Resolution 1816 (2 June 2008, Session 5902): This resolution is considered one of the most significant measures adopted by the Security Council in relation to piracy. It authorized states, for a period of six months and with the consent of Somalia’s Transitional Federal Government, to enter Somali territorial waters to combat acts of piracy and armed robbery at sea. Exercising its authority under Chapter VII of the United Nations Charter, the Council decided in paragraph 7 of Resolution 1816 that:[25] “States which support the Transitional Federal Government of Somalia in their anti-piracy and sea robbery operations and give prior notice to the Secretary-General can perform the following during six months from this resolution: (a) conduct operations in Somalia’s territorial waters to stop piracy and sea robbery according to applicable international law provisions for high seas operations; and (b) employ all required methods in Somalia’s territorial waters based on applicable international law provisions for high seas operations to combat piracy and armed robbery”.[26] The Security Council passed Resolution 1838 on October 7, 2008, under Chapter VII of the United Nations Charter. It said that countries that care about maritime security need to do something about piracy on the high seas near the Somali coast. The resolution called for the use of naval ships and military planes in accordance with UNCLOS. Western and Asian naval forces heavily deployed their fleets across the Gulf of Aden under the stated purpose of fighting piracy. The deployment endangers Arab national security while potentially turning the Red Sea into an international zone, and it comes with multiple related resolutions.[27] The Security Council issued over thirty binding resolutions between May 2008 and December 2019 concerning maritime piracy in Somali territorial waters through Chapter VII of the United Nations Charter, while declaring the situation in Somali waters as an international peace and security threat. Through this authority, the Council can assign the task of suppressing such crimes, along with armed force, to particular states. According to some legal experts, the Council took such actions and issued comparable resolutions for other worldwide matters because piracy continued to rise and created a significant hazard to maritime transport and navigation freedom, which harmed major world financial institutions and global economic systems. The current resolutions, which started in May 2008, state that foreign military action to fight piracy needs written authorization from the Federal Government of Somalia. The Somali Transitional Government gave the United Nations Secretary-General a document that authorized specific states to chase pirates in Somali waters. The Council allows regional organizations to fight illegal activities through its resolutions. The North Atlantic Treaty Organization (NATO) and the European Union established two naval operations named “Ocean Shield” and “Atalanta” under this framework to fight piracy in the Gulf of Aden. The operations have maintained their presence in Somali territorial waters since their start, which marks twelve years of continuous activity. The Security Council made its decisions regarding the Somali issue based on Chapter VII of the United Nations Charter when it reviewed the list created by the Somali Transitional Government. The Council’s coercive measures implementation requires binding cooperation from all UN Member States, although the original list submitted by the Somali Transitional Government specified only certain states. The Somali Government’s list of authorized states included a few nations, but the Council took it into account since piracy threatens international peace and security. The International Criminal Tribunal for Rwanda received its establishment through Council resolution in 1995, which mandated full cooperation from all states, while any non-compliance became a security threat to international peace.[28] Multiple initiatives alongside these measures have proven effective in reducing Somali water piracy attacks, which peaked in 2011 before declining until 2017. The methods designed to fight piracy need to continue to exist, while authorities must work to enhance them as part of their strategy against piracy. The Somali scenario demonstrated the need to boost anti-piracy operations, which work on both sea and land territories. Piracy represents more than just ship attacks since it emerges from economic problems alongside social issues and weak government control.[29] The UNSC passed multiple resolutions that dealt with maritime piracy in the Gulf of Guinea through Resolution 2018 (2011) and Resolution 2039 (2012). The Security Council under Resolution 2018 (2011) denounced every instance of piracy along with sea-based armed robbery which occurred in the waters surrounding Gulf States. The resolution expressed support for the planned summit of Gulf State leaders who would meet to create a regional security plan while urging member states and regional bodies to establish a joint strategic framework for maritime security in the region. The resolution established the necessity for regional entities to unite their efforts in providing guidance and assistance to vessels traveling through the Gulf while stressing coordination between states, regional organizations, and the shipping and insurance sectors. The Secretary-General’s assessment mission report about Ghana’s piracy situation led to the Security Council’s adoption of Resolution 2039 (2012). The resolution established the Republic of Ghana as the main entity responsible for fighting against piracy and armed robbery at sea. The Secretary-General received instructions to assist the joint summit organization through UNOWA and UNOCA according to the provisions set out in Resolution 2018 (2011). The Security Council required UNOWA and UNOCA to provide continuous reports about piracy and armed sea robbery activities in the Republic of Ghana for the Security Council’s evaluation.[30] The UNSC passed Resolution No. 2634 of 2022, which became effective after receiving unanimous approval from its 15 members. The Council expressed severe disapproval of all maritime piracy and armed sea robbery acts, including assassinations and kidnappings, and hostage-taking within the Gulf of Guinea. All States in the region need to include these actions as criminal offenses in their national laws while conducting investigations to prosecute and extradite those responsible. The Council demanded that all member States within the region take immediate national and regional action for the implementation of national maritime security strategies while receiving international assistance to establish a coordinated legal system that targets piracy and armed maritime crimes. The most recent resolution on this topic was Resolution No. 2039 of 2012, which addressed piracy and armed robbery at sea in the Gulf of Guinea. The Council adopted Resolution No. 2634 as its first resolution in ten years. The Security Council adopted the resolution after six months of negotiations, which Norway and Ghana initiated as joint sponsors.[31] The IMO, established in 1958 to facilitate cooperation and the exchange of technical information regarding ship safety and the security of those on board, has likewise been attentive to incidents of maritime piracy. Since 1980, when the IMO Council formed a working group composed of 18 States along with several other maritime organizations, the Organization has been engaged in discussions on maritime piracy and its negative impact on shipping. This working group presented a series of recommendations to the IMO Council. In 1974, the IMO established the Maritime Safety Committee, tasked with collecting data and statistics on piracy and its geographic distribution. The Committee began receiving reports from member States and issuing comprehensive reports on piracy incidents, initially on a semiannual basis, then quarterly, and later monthly. In 1986, the Committee began following up on reports with States whose vessels were subjected to piracy, consistently urging them to submit information on incidents. Subsequently, the Committee issued Circular A.683(17), calling on governments and relevant bodies to mobilize resources for combating maritime piracy. The IMO General Assembly passed Resolution A.922(22) in November 2001, which included the Code of Practice for the Investigation of the Crimes of Piracy and Armed Robbery Against Ships. It also included Resolution A.923(22), which included measures to stop the registration of fake ships. The International Ship and Port Facility Security (ISPS) Code was also created. It changed the International Convention for the Safety of Life at Sea (SOLAS) to include rules that specifically protect ships from armed robbery and piracy.[32] Thus, it is evident that the IMO, through its numerous resolutions, has consistently sought to combat this phenomenon. It has called upon all States to confront maritime piracy and established the Maritime Safety Committee to monitor navigational security. These efforts, combined with those of maritime offices and other international organizations, represent an ongoing global endeavor to curb this transnational crime.[33] 2. Efforts of International Agreements to Limit Maritime Piracy International agreements are considered a source of international law and serve as legislation within the international legal system. Accordingly, maritime piracy has been criminalized based on international agreements as follows: Under the United Nations system, the Geneva Convention on the High Seas, signed on June 29, 1958, first criminalized maritime piracy on a contractual basis. This convention is considered the cornerstone that laid the basic principles for the criminalization of maritime piracy in international criminal law. The convention enumerates the acts that constitute maritime piracy, and Articles 14 to 23 of the convention specifically address the criminalization of piracy on the high seas and in any area not under the sovereignty of any state, obligating the signatory countries to impose penalties on those who commit such acts. Among others, the UNCLS, 1982, defines maritime piracy as an illegal act of violence or detention. Article 105 of the Convention addresses the concept of international jurisdiction to punish maritime pirate offenders. It says that any country may, on the high seas or in any other location beyond the authority of any other country, take any pirate ship or arrest the people on board, as well as confiscate any goods discovered on the vessel. The courts of the state that executed the seizure are empowered to rule on the property and set the penalty applied. The state also has the right to choose the method to be followed for the ships, planes, or property, with appropriate consideration to the rights of bona fide third parties. Whether on the high seas, in the territorial sea, or in international waters, these authorities include the right to seek, arrest, imprison, prosecute, and punish offenders of maritime piracy.[34] B) Regional Efforts to Combat the Crime of Maritime Piracy Regional initiatives against the crime of marine piracy include the Regional Cooperation Agreement on Combating Piracy and Other Unlawful Acts in Asia (First part), NATO’s activities (Second section), and the African Union’s involvement in restricting this crime (Third section). 1. The Regional Cooperation Agreement on Combating Maritime Piracy and Other Unlawful Acts in Asia (RECCAP) The ten member states of the Asian Association of Southeast Asian Nations (ASEAN), as well as China, Japan, South Korea, Sri Lanka, and Bangladesh, met and signed the Regional Cooperation Agreement on Combating Piracy and Other Unlawful Acts Against the Safety of Navigation in the Asia Region (RECCAP Agreement) in response to the growing use of regional organizations for security cooperation globally since the end of the Cold War. Signed in November 2004, this agreement became operative on December 4, 2005. The goal of this agreement, the first of its kind between countries, is to create a regional framework for coordination and collaboration between the contracting parties in order to stop and prosecute armed robbery and piracy against ships in the region’s waters. To ensure that the agreement does not conflict with the rights and obligations of the contracting states under international law, specifically the 1982 UNCLS, UNCLOS, the contracting states must implement it in conformity with their national laws and regulations. Moreover, the exercise of this right does not provide any contracting state with the power to hunt for or stop pirates in another contracting state’s territorial seas. This clause highlights the coastal state’s exclusive legal authority over offenses like piracy and other illegal activities carried out inside its territorial waters. According to the Regional Agreement (RECCAP), the Regional Information. In order to prevent and repress acts of piracy and armed robbery against ships, the Exchange Center was founded, with its headquarters located in Singapore. Its goal is to promote close regional cooperation among the contractual parties. Either direct bilateral collaboration between the center and the contractual parties or reference to the center’s bodies is used to carry out this cooperation. In the fight against maritime piracy and other illegal activities against ships in Asia, especially Southeast Asia, this pact is seen as an effective example of regional collaboration.[35] 2. NATO’s Efforts to Limit Maritime Piracy Since October 2008, NATO has conducted three maritime operations in the Horn of Africa region to provide necessary protection for ships. These operations include: Operation Allied Provider: Between October and December 2008, NATO launched Operation Allied Provider to protect global food aid ships passing through the Gulf of Aden and off the coast of Somalia in order to deliver humanitarian assistance to Somalia; Operation Allied Protector: NATO initiated this operation in 2009 to assist in preventing and disrupting pirate activity in the area, therefore enhancing the safety of international navigation and economic marine routes; Operation Ocean Shield: In August 2009, NATO carried out Operation Ocean Shield to assist the countries of the region, at their request, in developing their own capabilities, such as strengthening coastal patrols to combat piracy activities.[36] 3. The Role of the European Union in Limiting the Crime of Maritime Piracy In 2021, the European Union’s efforts to combat maritime piracy included the military mission EUNAVFOR Somalia (Operation Atalanta), which concentrated on disrupting and deterring piracy, particularly off the Horn of Africa. At the same time, the UNODC’s Global Maritime Crime Programme (GMCP), supported by the EU, focused on strengthening regional capacities through legal reforms, training for law enforcement and judicial personnel, and developing mechanisms for prosecution and the exchange of evidence in affected regions such as the Gulf of Guinea. 3.1 Military measures and deterrence Operation Atalanta: The EU Naval Force Somalia continued its counter-piracy mission in the western Indian Ocean and off the Horn of Africa; Disruption: Military assets were deployed to neutralize suspected pirate groups by rendering them unable to continue their activities once intelligence reports confirmed their operations. 3.2 Capacity-building and legal support Judicial capacity: With EU funding, the UNODC’s GMCP supported partner states by training prosecutors and judges to address maritime crime cases, including through simulated trials and reviews of existing legal frameworks; Law-enforcement training: The programme provided training for maritime law-enforcement officers in surveillance, interdiction, and operational response, often through the development and implementation of standard operating procedures (SOPs); Legal reform: Support was extended for regional legal assessments and the preparation of recommendations aimed at improving legislation related to maritime crime; Cooperation: The EU also assisted in establishing Memoranda of Understanding (MOUs) to facilitate the prosecution of suspects and the transfer of evidence among states. 3.3 Regional focus and additional activities Gulf of Guinea: Efforts in the Gulf of Guinea were reinforced through regional initiatives such as the Yaoundé Code of Conduct, intended to address piracy, drug trafficking, and other illicit activities; Mediterranean: In 2021, the UNODC launched new projects to strengthen maritime law enforcement and border management capabilities in the Mediterranean, in coordination with EU initiatives such as Operation IRINI.[37] According to UNODC’s 2023 report, EU efforts against maritime piracy include contributing to the Global Maritime Crime Programme (GMCP) and the Support to West Africa Integrated Maritime Security (SWAIMS) program, which focus on capacity-building, legal assistance, and operational coordination. These initiatives involve training law enforcement and justice officials to handle piracy cases, developing legal frameworks, and strengthening regional cooperation in areas like the Gulf of Guinea and the Horn of Africa. 3.4 EU initiatives and their goals Global Maritime Crime Programme (GMCP): The EU partnered with UNODC through this program to counter maritime crime. The training of more than 8,500 maritime officers from 106 nations will help develop operational skills. The plan focuses on developing better surveillance systems and response capabilities, and interdiction methods; Support to West Africa Integrated Maritime Security (SWAIMS): This program was designed to improve maritime security in West Africa. The program requires UNODC, together with other agencies, to provide unified regional support through the Yaoundé Architecture system; Capacity Building and Legal Support: A key component is strengthening the judicial response to maritime crimes through training for prosecutors, judges, and investigators. The project focuses on creating standardized evidence collection methods and enhancing prosecution success rates; Operational Support: The EU supports regional coordination and operational response through initiatives like the Coordinated Maritime Presences (CMP), which facilitates coordination between vessels and coastal states in key maritime areas; Addressing Root Causes: The EU supports efforts to eliminate piracy causes in the Horn of Africa through its backing of fishing operations and coastal villages and its support for Somali judicial institutions.[38] According to a 2023 UNODC report, the European Union employs a multi-faceted strategy to combat maritime piracy in the Gulf of Guinea, focusing on capacity-building, financial aid, and a non-naval operational presence. The main initiatives involve regional maritime security projects funded with €55 million and legal framework development for piracy prosecution and the Coordinated Maritime Presences concept, and Yaoundé Architecture support and land-based piracy root cause solutions. Read the full UNODC report at unodc.org.[39] 4. The Role of the African Union in Reducing Maritime Piracy Given the increasing number of maritime piracy attacks along African coastlines, particularly the Somali coast, the African Union has played a significant role by holding the 15th African Union Summit, expressing grave concern over the continuation and expansion of maritime piracy. The Union reaffirmed its support for the efforts of African states to prepare and implement a continental strategy for managing maritime navigation in Africa, as well as participating in the African force against organized crime and legal fisheries. The Peace and Security Council held its meeting in Addis Ababa in 2010 to discuss the increasing activity of pirates. The Council reaffirmed the African Union’s commitment to strengthening and enhancing security, creating a safe and suitable environment for international fishing off the coasts of Somalia and Africa, as well as for global trade. It strongly supported the increase of the African Union mission to Somalia from 4,000 to 12,000 personnel to reduce acts of maritime piracy. In addition, both East and West Africa have established maritime codes of conduct, which include standards for cooperation between states in combating maritime crimes. The IMO evaluated the Djibouti Code of Conduct, considering it the leading framework as it aims to encourage regional training, information exchange, and emphasizes the need for the development of national legislation. This code was developed to include not only maritime piracy and armed robbery but also any crimes that may appear on monitoring systems, such as smuggling, trafficking in illicit arms, drugs, and the sale of crude oil. In 2013, the countries of West and East Africa signed the Yaoundé Code of Conduct on Maritime Rules of Behavior in Cameroon. This code included similar legal violations with an additional obligation for its members to cooperate in maritime security through information exchange and communication with the relevant parties within the framework of the code. It also granted naval forces of those countries the authority to conduct legitimate activities, apprehend criminals, and prosecute them, while ensuring full care and attention to the maritime crew who may be exposed to crimes, with a commitment to repatriating them to their home countries.[40] Conclusion In conclusion, we have found that maritime piracy is one of the oldest crimes and a major issue threatening the security and safety of maritime navigation. It has evolved significantly, which has led to concerns within the international community. Maritime piracy is based on the same elements as other crimes; however, it differs from ordinary or domestic crimes in its international element. Numerous efforts, both at the international and regional levels, have been made to combat and reduce maritime piracy. However, it continues to be widely committed in the seas and oceans. Study Recommendations This brings us to present the following recommendations: The necessity of continuing and strengthening international efforts to combat this phenomenon; Encouraging countries to cooperate in all matters related to ensuring maritime security for their ports and ships, to prevent them from becoming launching points for pirates; Establishing an international agreement specifically criminalizing maritime piracy; Setting binding rules for international cooperation in combating maritime piracy, including providing all available information related to the crime, as well as cooperation in the extradition of criminals. References Scholarly Literature: Aamara, L. B. (2014). Maritime piracy in the Gulf of Guinea: Reality and challenges (2003–2013). Master’s thesis, University of Algiers 3, Faculty of Political Science and International Relations; Aouacheria, R. (2011). Suppressing maritime piracy in light of international law rules: An evaluative study. 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Maritime piracy in international law and state applications: A case study of Somalia. University of Sharjah, Journal for Sharia and Legal Sciences, 10(2). Normative Acts: Convention on the High Seas. (1958). United Nations Treaty Series, 450. (Reprinted in 2005); Maritime Safety Committee. (2021). Reports of incidents in Malacca, January 1995–January 2021. London: International Maritime Organization (GSIS); United Nations. (n.d.). www.un.org. United Nations, Secretary-General. (2022). Report of the Secretary-General to the Security Council: Situation of piracy and armed robbery at sea in the Gulf of Guinea and its underlying causes (S/2022/818); United Nations Convention on the Law of the Sea. (December 10, 1982). 1833 U.N.T.S. 397, Art. 101. Ratified by Algeria under Presidential Decree No. 96-53 (January 22, 1996); United Nations Office on Drugs and Crime. (2021). Global Maritime Crime Programme: Annual Report 2021. Vienna, Austria. https://www.unodc.org/unodc/en/data-and-analysis/wdr2021.html. United Nations Office on Drugs and Crime. (2023). Global Maritime Crime Programme: Annual Report 2023. Vienna, Austria. https://www.unodc.org/unodc/en/piracy/index.html. United Nations Office on Drugs and Crime. (2023). Pirates of the Niger Delta: An update on piracy trends and legal finish in the Gulf of Guinea (Part 2). Vienna, Austria. https://www.unodc.org/documents/Maritime_crime/UNODC_GMCP_Pirates_of_the_Niger_Delta_Part_2.pdf. Footnotes [1] Aamara, L. B. (2014). Maritime piracy in the Gulf of Guinea: Reality and challenges (2003–2013). Master’s thesis, University of Algiers 3, Faculty of Political Science and International Relations, 29. [2] Convention on the High Seas. (1958). United Nations Treaty Series, 450, 82. (Reprinted in 2005). [3] United Nations Convention on the Law of the Sea. (December 10, 1982). 1833 U.N.T.S. 397, Art. 101. Ratified by Algeria under Presidential Decree No. 96-53 (January 22, 1996). [4] Bousna, A. (2014). The law of the sea and the rules applicable to ships in territorial waters. Master’s thesis, University of Constantine 1, Faculty of Law, 230-231. [5] Aamara, L. B, op. cit., 30. [6] Ghafaflia, A. Y. (2025). The efforts of the United Nations and Interpol in combating maritime piracy. Journal of Legal and Economic Research, 8(1), 584. [7] Attafi, M. (2020). Combating unlawful acts committed at sea. Doctoral dissertation, University of Boudaou, Faculty of Law, 37-39. [8] Zayed, A. A. (2013). Maritime piracy in international law and state applications: A case study of Somalia. University of Sharjah, Journal for Sharia and Legal Sciences, 10(2), 169-171. [9] Fakhoury, A. (2015). International legal regime against piracy off the coast of Somalia. Journal of Law, 1, 17. [10] Zayed, A. A, op. cit., 170-171. [11] Boamah, F. (2023). The role of the UN Security Council in the fight against piracy in the Gulf of Guinea. Central European Journal of International and Security Studies, 17(3), 67, 72-73. [12] Proutière-Maulion, G. (2013). Globalization, sustainable development and human rights: The example of maritime piracy. Neptunus, 19(3), 3. [13] United Nations, Secretary-General. (2022). Report of the Secretary-General to the Security Council: Situation of piracy and armed robbery at sea in the Gulf of Guinea and its underlying causes (S/2022/818). [14] Bouhajila, A. (2021). Maritime piracy on the high seas in light of international law of the sea. Doctoral dissertation, University of Frères Mentouri Constantine 1. [15] Maritime Safety Committee. (2021). Reports of incidents in Malacca, January 1995–January 2021. London: International Maritime Organization (GSIS). [16] Taybaoui, O., Rabhi, L. (2022). The relationship between maritime piracy and terrorism. Journal of Rights and Freedoms, 10(1), 439. [17] Ibid. [18] Omrani, N. (2013). Maritime piracy and its distinction from similar acts. Journal of Legal and Political Research and Studies, 6, 139. [19] United Nations Convention on the Law of the Sea. (December 10, 1982). 1833 U.N.T.S. 397, Art. 101. Ratified by Algeria under Presidential Decree No. 96-53 (January 22, 1996). [20] Aouacheria, R. (2011). Suppressing maritime piracy in light of international law rules: An evaluative study. Paper presented at the Third International Symposium on Maritime Disaster Management, Kingdom of Saudi Arabia, October 8-12, 54-55. [21] Redha, R. D. M. A.-D. A. (2015). The role of the international criminal judge in combating the crime of maritime piracy. Journal of Law, 40, 548. [22] Salimah, S. M. (2014). Maritime piracy. Riyadh: Law and Economics Library, 173. [23] Boukjouta, F. (2013). Maritime piracy between international practice and international law. Master’s thesis, University of Algiers 1, Faculty of Law, 32. [24] United Nations. (n.d.). <www.un.org>. [25] Treves, T. (2009). Piracy, law of the sea, and use of force: Developments off the coast of Somalia. European Journal of International Law, 20(2), 404. [26] United Nations. (n.d.). <www.un.org>. [27] Aouacheria, R, op. cit., 56-57. [28] Magsood, S. (2020). The Security Council and repression of maritime piracy: The case of Somalia. Transactions on Maritime Science, 9(2), 361. [29] Karawita, A. K. (2019). Piracy in Somalia: An analysis of the challenges faced by the international community. Jurnal Ilmu Sosial dan Ilmu Politik, 23(2), 115. [30] Boamah, F, op. cit., 78-79. [31] Mohieddine, C. (2024). Continental frameworks for maritime security protection in Africa: Ambitions and challenges. Journal of the Faculty of Politics and Economics, 22, 200. [32] Zahir Ali, J., Labaki, G. (2025). The international community’s confrontation of maritime piracy. Journal of Human and Natural Sciences, 6(3), 466. [33] Zahir Ali, J., Labaki, G. (2025). The international community’s confrontation of maritime piracy. Journal of Human and Natural Sciences, 6(3), 199. [34] Redha, R. D. M. A.-D. A, op. cit., 558. [35] Boukjouta, F, op. cit., 180-181. [36] Sultan, M. S. (2011). Maritime security and combating piracy: Security requirements and international responses – Towards a joint international approach to combating maritime piracy. Paper presented at the Third International Symposium on Maritime Disaster Management, Kingdom of Saudi Arabia, October 8-12, 32. [37] United Nations Office on Drugs and Crime. (2021). Global Maritime Crime Programme: Annual Report 2021. Vienna, Austria. <https://www.unodc.org/unodc/en/data-and-analysis/wdr2021.html>. [38] United Nations Office on Drugs and Crime. (2023). Global Maritime Crime Programme: Annual Report 2023. Vienna, Austria. https://www.unodc.org/unodc/en/piracy/index.html. [39] United Nations Office on Drugs and Crime. (2023). Pirates of the Niger Delta: An update on piracy trends and legal finish in the Gulf of Guinea (Part 2). Vienna, Austria. <https://www.unodc.org/documents/Maritime_crime/UNODC_GMCP_Pirates_of_the_Niger_Delta_Part_2.pdf>. [40] Redha, R. D. M. A.-D. A, op. cit., 555-556.
Parties to the Medical Services Contract and Their Core Obligations (Primarily under Georgian and German Law)
Creating a legal framework to regulate contractual relations between patients and healthcare providers, or improving the existing one, is the main task of any legal system. In this process, it is necessary to take into account the specifics of legal relations, analyze the challenges in practice, and based on them, determine the rights and obligations of the parties on a fair basis. This article analyzes the legal and factual situation of the parties to a medical service contract, the challenges they face, and ways to overcome them. Special attention is paid to the issue of providing medical services to minors and patients who cannot make informed decisions, and the scope of participation of their parents, legal representatives, and relatives in this process. In addition, the article discusses the main obligations of the medical service provider. Of course, the specific rights and obligations of the parties are determined in each case based on their needs and an individual contract. However, in this case, the legal and ethical obligations common to any medical service contract are analyzed, namely the obligation of the medical service provider to inform the patient, take care of him, protect confidentiality, and maintain medical records. The article is mainly prepared according to Georgian and German law, although for comparison, common law doctrine and the experience of other countries (including post-Soviet ones) are often used. Keywords: Medical law, parties to a medical service contract, patient representation, basic obligations of a doctor. Introduction The regulation of relations between the patient and the medical service provider has great importance both for the parties themselves and for the state.[1] The World Health Organization (WHO) emphasizes in its constitution that health care includes not only the existence of an effective health system, but also the ability to access it,[2] which is only possible under the conditions of a relevant legal order. In practice, the relationship between the physician and the patient is primarily regulated by a medical services contract.[3] However, the formation of a specialized legal framework governing such contracts remains a significant challenge for Georgia, a country with a developing legal system. The legal doctrine in this field is still in the process of formation,[4] which in practice often leads to ambiguity and creates a risk of unjustified infringement of the parties’ interests. Considering the above, the main research question of this article is what fundamental legal principles and obligations should underlie the medical services contract in order to ensure high-quality medical care, contractual fairness, and equality between the parties. It should be taken into account that, in most cases, a patient’s decision to seek medical assistance is driven by the need to avoid a threat to their life or health. Consequently, in practice, the patient is effectively compelled to accept the contractual terms offered by the medical service provider, which are often aimed at transferring contractual risks to the patient and minimizing the physician’s liability. Therefore, it is essential to determine which obligations constitute the core duties of the parties to a medical services contract, which may not be excluded or limited by agreement, and what mechanisms should be established to ensure the genuine protection of the patient’s autonomy. The above is particularly important in the case of minors and patients who lack the capacity to make informed decisions, in whose treatment process third parties are actively involved. In this regard, it is important to clarify to what extent a minor has the authority to decide independently on the receipt of medical services, and to what extent the parents, legal representatives, or relatives should be involved in the treatment process. It is also necessary to determine whether the consent of one parent is sufficient for the treatment of a minor, and how the medical service provider should act if the requirements of the patient’s legal representative do not correspond to the needs of treatment. These issues are also important in the case of patients who cannot make informed decisions. It should be noted that, in the course of medical treatment, particular importance is attached to the patient’s informed consent, the duty of care, the obligation of confidentiality, and the maintenance of medical documentation. Accordingly, one of the main parts of this study is to determine the content and scope of these obligations. Accordingly, this study aims to address the above-mentioned questions and to develop recommendations for improving the legal framework governing the relationship between the patient and the medical service provider, based on an analysis of their legal and factual status and a comparative examination of Georgian and foreign, primarily German, law. The scientific novelty of the present study lies in its examination of the need to recognize the medical services contract as a distinct legal category, approached through both dogmatic and comparative legal analysis, with particular consideration of the German model. The study of this need is important not only for Georgia, but also for other countries whose laws do not separately regulate the medical service contract as a special type of contract. The novelty of the study is also manifested in the fact that, for the first time, an integrated analysis is made of the issue of the weak pre-contractual status of the patient, the authority of minors, and the legal protection of patients lacking the capacity to make informed decisions. Accordingly, the study has considerable theoretical and practical significance. From a theoretical perspective, it examines, through a comparative legal approach, the subjects of the medical services contract, their interests, and their core obligations, issues that have not yet been fully explored in Georgian law. From a practical standpoint, the results of the research may serve as supporting and interpretative material for the refinement of judicial practice and the improvement of the legal framework. Literature Review Georgian legal doctrine is not distinguished by an abundance of scholarly research on patient rights or medical law. The existing literature mainly focuses on the problem of compensation for damage caused by medical malpractice.[5] Accordingly, less attention has been devoted to the contractual relationship between the patient and the medical service provider, and the existing studies address only specific elements of this relationship (e.g., informed consent, the protection of minors, and similar aspects).[6] Particularly few studies examine specific issues of medical law from a comparative legal perspective.[7] The German legal doctrine is comparatively more developed in this field. Following the 2013 legislative reform, paragraphs 630a–630h were added to the German Civil Code (BGB), thereby establishing a distinct legal framework for the medical services contract. German law regards the medical services contract as a specific type of agreement, as its performance depends on the provision of the service itself rather than the achievement of a particular result.[8] According to the prevailing view, a doctor is not a guarantor of results.[9] In this relationship, both legislation and legal doctrine place particular emphasis on the physician’s obligations of patient information,[10] care,[11] confidentiality, and the maintenance of medical documentation.[12] The relationship between the patient and the medical service provider is regulated through judicial precedents in common law countries. For example, in the United Kingdom, several landmark cases have played a decisive role in this regard, including: Bolam v. Friern Hospital Management Committee (1957), Bolitho v. City and Hackney Health Authority (1997), Cassidy v. Ministry of Health (1957), and others. These precedents established the substantive content of the physician’s obligations and the standards for assessing their fulfillment. At the international level, the specification of physicians’ duties began with the Nuremberg Code, which first articulated the concept of informed consent. This was followed by the adoption of the International Code of Medical Ethics in 1949, which established standards of professional ethics.[13] Patient rights were further reinforced by the 1981 Lisbon Declaration on the Rights of the Patient[14] and the 1997 Oviedo Convention,[15] both of which are discussed in the present article. In view of the above, the present study represents an attempt to conduct a comparative legal analysis of issues that have thus far been addressed only fragmentarily in Georgian legal literature, taking into account relevant foreign experience. Such an approach contributes to the institutional strengthening of medical law in Georgia at both the academic and practical levels. The comparison of Georgian law, as that of a post-Soviet transitional country, with European legal approaches is of interest for further research not only within the European context but also in the broader study of post-Soviet legal systems. Methodology The central methodological basis of this research is the comparative legal method. The study primarily compares the Georgian and German models. The choice of the German model is justified by the fact that, among the continental European legal systems (e.g., France, Italy, and others), it is the one most closely aligned with Georgian law. It is noteworthy that the Georgian Civil Code was developed based on the reception of the German Civil Code (BGB). Consequently, the German model is the most compatible with the Georgian legal system, which makes this comparison both scientifically sound and contextually relevant. The study also uses the normative-dogmatic method, which allows for the interpretation of existing legal norms on the basis of a systematic framework of legal dogmatics. The inductive and deductive methods enable the transition from general principles to specific cases and, conversely, the derivation of general conclusions from the analysis of individual instances. The systematic and logical analysis methods are applied to determine the interrelation of contractual elements, specifically, to examine the obligations of patient information, care, confidentiality, and medical documentation within a unified framework. 1. Patient According to German law, a patient is a person to whom a healthcare provider has promised to provide medical services.[16] He or she can only be a human,[17] not an animal, as the regulation of animal treatment does not fall within the scope of medical law.[18] Georgian legislative acts provide different definitions of the term “patient”,[19] which may be considered a legislative gap. In order to ensure a uniform standard, it is advisable to establish the definition provided for in Article 4 of the Law of Georgia on “Patient Rights”. According to this norm, a patient is any person who, regardless of his or her health condition, uses needs or intends to use the services of the healthcare system. The provider of medical services has legal, moral, and ethical obligations towards the patient,[20] which mainly serve, on the one hand, to protect the patient’s right to life and health, and on the other hand, to ensure his or her autonomy.[21] Patient autonomy is the right of the patient to determine independently all matters related to the provision of medical care.[22] In practice, the main barrier to the full realization of this right is the patient’s weak pre-contractual position. Considering that receiving medical services is often essential to protect the patient’s life and health, the patient is practically compelled to agree to the contractual terms offered by the medical service provider, which makes the patient the weaker party to the contract. In order to improve patients’ rights, amendments were made to the German Civil Code in 2013.[23] This reform mainly recognized the principles previously established in German case law,[24] most of which concerned the obligation to inform patients[25] and created a legislative basis for the protection of patients’ rights. Post-Soviet countries are trying to balance the dominant position of medical service providers with different mechanisms. For example, the Code of Administrative Offenses of the Russian Federation provides for administrative liability for including conditions in contracts that violate the legally established rights of consumers, including patients.[26] In Georgia, the function of controlling the content of the terms of a medical service contract is primarily carried out by the courts.[27] To define the rights and obligations of the parties and eliminate legal uncertainty, it would be advisable to regulate the medical service contract as a special type of contract under the Civil Code, as is the case in other European countries (e.g., Germany).[28] This would contribute to the codification of private legal relations within a single act and enhance the standard of protecting the equality of the parties’ rights. 1.2 Minor patient Public interest is high when it comes to the treatment of minors. The question of whether a minor has the right to receive medical services independently remains a subject of legal debate.[29] In this regard, ambiguity also exists in Georgian law. Article 41 paragraph 3 of the Law of Georgia on “Patients’ Rights” grants a minor over the age of 16 (who, in the opinion of the medical service provider, is capable of adequately assessing his or her own state of health) the right to give informed consent or refusal to medical treatment, whereas under Article 14 of the Civil Code of Georgia, a person under the age of 18 is deemed to have limited legal capacity. Accordingly, any transaction concluded by him or her is subject to approval[30] by the legal representatives.[31] Thus, a minor needs the consent of a legal representative to receive medical services.[32] The exception is such personal and sensitive issues defined by law, in which parents’ intervention may further worsen the minor’s condition. For comparison, the institution of “Gillick Competence” is established in the common law doctrine, according to which a minor is entitled to independently make a decision on receiving medical services if he or she has the ability to properly understand the issue.[33] According to the prevailing view, a parent or other legal representative must act in the best interests of the minor.[34] If, in the opinion of the medical service provider, the decision of the parent or other representative does not serve the best interests of the patient, he or she may apply to the court, or in cases of emergency, act based on medical necessity.[35] The same rule applies in the absence of a parent or other legal representative.[36] In the case of Glass v. the United Kingdom (2004), the European Court of Human Rights found a violation of the right to respect for private and family life. The Court held that the doctors, considering the minor to be in a terminal stage, administered a strong dose of morphine to the patient against the mother’s wishes. Although this may have been medically justifiable, the Court’s finding of a violation was grounded in the fact that the doctors acted unilaterally, without seeking judicial authorization, despite the parent’s refusal.[37] Regarding the treatment of a minor, it also remains to be clarified whether the consent of both parents is required. In this context, there is a tension between, on the one hand, the parents’ right to be equally involved in matters concerning the treatment of their minor children and, on the other hand, the need to reduce medical bureaucracy. This dilemma is resolved by German doctrine, according to which the consent of both parents is required only in cases of interventions of particular complexity and importance, determined in advance; otherwise, the consent of one parent/legal representative is presumed.[38] This is a practical and effective way to solve the problem. Accordingly, the view regarding the advisability of reflecting the above approach in Georgian legislation should be supported.[39] 1.3 Patient lacking the capacity to make informed decisions People may find themselves in situations where they are deprived of the ability to express their will,[40] in which they are unable to independently make decisions related to treatment.[41] From a private law perspective, a patient lacking the capacity to make informed decisions may be compared to a young minor (a person under the age of seven). The difference is that in this case, the person is incapacitated due to age,[42] while a patient lacking the ability to make informed decisions may also be an adult who, due to an accident or mental condition, is deprived of the ability to express a true will.[43] In the United Kingdom, the treatment of patients in this category is regulated by a special legal act - the Mental Capacity Act 2005. It sets out the relevant criteria for assessing a person’s decision-making capacity and establishes that, in the absence of such capacity, any intervention must be carried out in the patient’s best interests, taking into account his or her past wishes, beliefs, and the views of relatives.[44] In Georgia, the norms related to the treatment of patients lacking the capacity to make informed decisions are not consolidated in a single legal act. Decisions concerning the treatment of patients in this category are made taking into account the will they expressed in the past (when they had the capacity to make informed decisions), and in the absence of such will, based on the informed consent of their relative or legal representative.[45] In case of a conflict between the decisions of a relative and a legal representative, the will of the legal representative has priority. The involvement of relatives in decisions concerning the provision of medical services to the patient depends on their priority.[46] The decision of a patient’s legal representative or relative is binding on the medical service provider to the extent applicable in the case of a minor, as discussed above. 2. Medical Service Provider The provider of medical services is a natural or legal entity[47] that performs any manipulation or procedure on a patient for diagnosis, treatment, prevention, or medical rehabilitation.[48] The interest existing in legal doctrine toward the medical service provider as a party to the contract is conditioned by the high social significance of medical services. In view of the above, certain obligations are imposed on the medical service provider, which ensure the provision of quality treatment and the protection of contractual equality between the parties. 2.1 Obligation to inform the patient Informing the patient is part of the concept of informed consent,[49] which was first declared in the Nuremberg Code of 1947.[50] Later, this principle was reflected in the Lisbon Declaration on the Rights of the Patient, adopted by the World Medical Association in 1981.[51] Informing the patient, as a mandatory prerequisite for any medical intervention, is also provided for in the Oviedo Convention of 1997.[52] The duty to inform means that, before medical services are provided, the patient must receive clear and complete information about the planned preventive, diagnostic, treatment, and rehabilitation services, as well as about alternative options, possible risks, expected effectiveness, the consequences of refusing treatment, the available resources, the ways these services can be received, their costs and reimbursement methods, the patient’s rights and duties, and the identity and professional background of the medical provider. After treatment begins, the patient must also be informed about the results of medical tests, the diagnosis, the progress of treatment, and the likely prognosis.[53] It is essential that patients are informed in terms they can easily understand,[54] without long or confusing sentences. The information should be clear, concise, and easy to follow.[55] For example, according to the recommendations of the Coalition for Reducing Bureaucracy in Clinical Trials, the information provided to obtain informed consent should not exceed 1,000 words.[56] The duty to inform is also established in German law.[57] Its content is defined in Section 630e of the German Civil Code, according to which the healthcare provider is obliged to inform the patient of all essential circumstances necessary for obtaining consent.[58] This primarily concerns purely medical issues. However, the scope of information to be provided to the patient is practically the same in both Georgian and German law. The duty to inform does not exist if the patient has refused to receive the information, if there is a justified doubt that giving such information would seriously harm the patient’s health (unless the patient insists on being informed),[59] or if urgent medical intervention is needed.[60] 2.2 Duty of care The term “duty of care” is not expressly provided for in Georgian legislation. however, its content derives from the patient’s right to treatment and care,[61] as well as from the duty of diligence established under Article 316(2) of the Civil Code of Georgia.[62] In medical law, the duty of care represents the obligation of the healthcare provider to exercise, toward the patient, a degree of caution consistent with a high professional standard, such as would be demonstrated by another competent doctor practicing in the same field.[63] It includes the core duties of the healthcare provider, which are: looking after the patient, making a diagnosis, referring to another specialist (if necessary), providing treatment, and giving guidance.[64] A special feature of the duty of care is that both the medical institution and the treating doctor owe it separately to the patient.[65] In practice, it is particularly important to determine in which cases the duty of care is considered to have been breached. In common law countries (for example, the United Kingdom), the ‘Bolam standard’ is applied for this assessment. According to this standard, a doctor’s liability is evaluated based on whether he or she acted in accordance with a reasonably accepted and authoritative professional practice.[66] If the doctor’s conduct is consistent with the practice accepted by a responsible and competent group of specialists, he or she is not obliged to compensate for any damage.[67] The “Bolam standard” was further refined in the case of Bolitho v. City and Hackney Health Authority (1997), decided by the House of Lords in the United Kingdom, where it was established that, in addition to compliance with professional standards, the doctor must also justify why a particular method of treatment was chosen.[68] In Georgia, the “Bolam standard” is not directly applied; however, judicial practice also links the determination of a doctor’s liability to actions inconsistent with professional standards and to the failure to achieve medical objectives.[69] A similar approach is established in German law.[70] This demonstrates a shared understanding of the content of the duty of care across different legal systems. 2.3 Duty of confidentiality Information related to medical services concerns the most private sphere of a person, namely his or her life and health.[71] Therefore, safeguarding its confidentiality is a fundamental duty of the healthcare provider.[72] This duty derives from the fundamental right to respect for private and family life[73] and continues to apply even after the patient’s death.[74] In the European Union, the General Data Protection Regulation (GDPR) has been in force since 25 May 2018, which, among other issues, regulates the processing of health-related data.[75] In order to approximate Georgian legislation to the regulations provided for by the GDPR, on 14 June 2023, the Parliament of Georgia adopted the Law of Georgia on Personal Data Protection,[76] which classified health-related data as a special category of data and introduced monetary fines for its unlawful processing.[77] For comparison, under Section 203 of the German Criminal Code, breach of confidentiality is subject to criminal liability.[78] In practice, keeping information confidential is especially difficult when, because of the patient’s health condition, other people take part in treatment decisions. In such cases, it is important to keep a balance between protecting the patient’s privacy and avoiding unnecessary bureaucracy. It should be noted that confidentiality is not absolute and may be limited in certain cases.[79] For example, the European Court of Human Rights did not find a violation in a case where medical staff shared information about a patient’s HIV-positive status with another hospital employee to protect safety.[80] In Georgia, disclosing confidential information is allowed in certain cases: if the patient has given consent; if keeping the information secret puts the life or health of another identified person at risk; if the data is used for teaching or research purposes in a way that does not reveal the patient’s identity; if the information concerns possible violence against women or domestic violence and there is a risk of repetition (in this case it is shared only with the relevant state authorities);[81] if there is a reasonable suspicion of a disease subject to mandatory registration, the information is shared with other medical staff involved in treatment; if disclosure is required for forensic examination; or if law enforcement requests it under a court decision.[82] The duty of confidentiality is not only a guarantee of privacy; it also helps build trust between doctor and patient,[83] which is an important factor for the success of medical care. 2.4 Duty to produce medical documentation In Georgia, doctors and other healthcare personnel are required to keep records in medical documentation in accordance with the established rules. The rules for keeping medical documentation are approved by a subordinate legal act – a ministerial order.[84] In Germany, the obligation to produce medical records is defined in Section 630f of the Civil Code. [85] It should be noted that the purpose of keeping medical records in Georgia and other countries is essentially the same and is related to the following objectives: Ensuring that the patient is informed at every stage of treatment, which, as already noted, is one of the doctor’s main duties; Ensuring an uninterrupted treatment process. Medical documentation enables the doctor to review the patient’s history and continue consistent treatment, which is especially important in the event of a change of doctor; Ensuring that healthcare personnel carry out their professional activities to a high standard. Knowing that the provided medical service is subject to documentation and control encourages doctors to deliver treatment using the best methods;[86] Assessing the quality of treatment and providing evidence for both parties, which is especially important for determining the liability of the medical service provider;[87] Ensuring epidemiological and public health. Producing medical documentation helps record statistics on the spread of diseases, which is important for planning preventive measures; Supporting medical research and education, which largely depends on the availability of individuals’ medical data (in a depersonalized form);[88] The effective functioning of the health insurance system and control of payments, important for avoiding unnecessary medical procedures and optimizing costs. Thus, producing medical documentation is not only an administrative requirement. It has an important means for ensuring high-quality care and protecting the interests of parties. Conclusion In Georgia, the legal norms regulating the relationship between the patient and the medical service provider are spread across different acts. It is advisable to consolidate them into a single legal framework, which will promote the establishment of a unified approach, the traceability of norms, and reduce the risks of conflict between them. In practice, an important problem is that, compared to the medical service provider, the patient has less ability to negotiate the terms that are favorable to him or her (negotiation power).[89] As a result, the patient usually accepts the terms offered to receive medical services. Considering this, it is important that the rights essential for the patient in receiving medical services be established by law through imperative rather than discretionary norms, which excludes the possibility of limiting them by contract. This is essential for safeguarding patient autonomy and balancing the dominant position of the medical service provider. Such an approach may also prove useful for other post-Soviet countries with transitional legal systems, where the legislation and doctrine regulating the relationship between the patient and the physician are still in the process of formation. With regard to the parties to a medical service contract, it is unclear whether a minor patient over the age of 16 has the authority to conclude the contract independently. Article 41, paragraph 3 of the Law of Georgia on “Patient Rights” and Articles 14 and 63 of the Civil Code of Georgia are in conflict. According to the first of them, informed consent expressed by a minor patient over the age of 16 is sufficient to receive medical services, if, in the opinion of the medical service provider, he or she properly understands his or her health condition, while the second of them additionally requires the consent of a parent/legal representative. From the perspective of protecting the best interests of the minor, it is advisable that the above-mentioned conflict of norms be resolved in favor of the regulation established by the Civil Code. An opposite view, which is recognized in common law doctrine, is that a minor may be considered competent if he or she has sufficient ability to adequately perceive and understand the essence of the specific matter.[90] Another issue is whether the consent of only one parent or legal representative is sufficient. According to the German approach, the consent of both parents or legal representatives is required only in cases involving particular risks.[91] Specifying this matter is also important for Georgian law. With regard to the treatment of a patient lacking decision-making capacity, it is advisable to apply the rules that govern the treatment of minors (a person under the age of seven), with the difference that in this case, greater importance is attached to respecting the patient’s past wishes and views. To make healthcare accessible and protect patient rights, the medical service provider must, no matter what type of medical intervention is performed, inform the patient, provide proper care, keep information confidential, and keep medical records. If these duties are violated, legal liability arises. The content of the obligation to inform the patient is similar in Georgian and German law and covers both medical and administrative issues. Its purpose is to address the information asymmetry between the doctor and the patient and to ensure the full realization of patient autonomy. The duty of care holds a central place in the treatment process. It means that the medical services given to the patient must be of good quality and follow accepted medical practice. This duty applies once the medical provider has agreed to treat the patient.[92] In the relationship between the parties, confidentiality and the duty to produce medical records play an important role. Confidentiality ensures the protection, within the limits defined by law, of information disclosed both during and after the treatment process. Producing medical records helps provide consistent treatment and makes it easier to check the accuracy of the services delivered, which is important for determining responsibility and protecting the rights of the parties. References Scientific Literature: Abdelkader, Y. (2025). Towards a Special Compensation System Aligned with the Unique Nature of Civil Liability for Medical Applications of Genetic Engineering. Law and World, 34. <https://doi.org/10.36475/L.A.W.14>; Bakradze, F. (2022). GCС’s- 630a-630h paragraphs – Medical service contract. Journal of Medical Law and Management, 1; Bichia, M. (2019). Features of Protecting the Patient’s Personal Autonomy and of Giving Informed Consent (Georgian and European Approaches). Law and the World, 12; Blanchard, C. N. (1921). Medical Law. Loyola Law Journal (New Orleans), 2(3); Bryden, D., Storey, I. (2011). Duty of care and medical negligence. Continuing Education in Anaesthesia, Critical Care & Pain, 11(4). <https://doi.org/10.1093/bjaceaccp/mkr016>; Buchner, B. (2020). Informed consent in Germany. In Vansweevelt, T., Glover-Thomas, N. (Eds.), Informed consent and health: A global analysis. Edward Elgar Publishing. <https://doi.org/10.4337/9781788973427.00018>; https://doi.org/10.4337/9781788973427.00018 Chanturia, L. (2011). General part of civil law. Samartali; Chavleshivili, G. (2023). Informed consent in the medical treatment of minors. Journal of Medical Law and Management, 2(3); Dannemann, G., Schulze, R. (2020). German Civil Code. Volume I: Books 1-3(§§1-1296), Article-by-Article Commentary. С.H. Beck & Nomos; Davies, C. E., Shaul, R. Z. (2010). Physicians’ legal duty of care and legal right to refuse to work during a pandemic. CMAJ: Canadian Medical Association Journal, 182(2). <https://doi.org/10.1503/cmaj.091628>; Devereux, J., Beran, R. G. (2022). Medical Negligence Law in Australia. In Medical Liability in Asia and Australasia. Springer. <https://doi.org/10.1007/978-981-16-4855-7>; Dobrijevic, G., Stanisic, M., Masic, B. (2011). Sources of negotiation power: An exploratory study. South African Journal of Business Management, 42(2). <https://doi.org/10.4102/sajbm.v42i2.493>; Dughishvili, G. (2022). Informed consent in medicine. Journal of Medical Law and Management, 1; Gelashvili, I. (2024). Protection of patients lacking the capacity to give consent. Journal of Medical Law and Management, 2(5); George, R. (2024). Medical Decision-Making about Children. In Wards of Court and the Inherent Jurisdiction. Hart Publishing. <http://dx.doi.org/10.5040/9781509972173.ch-008>; Hagenloch, U. (2023). Important trends in German judicial practice in the field of medical law in 2021. Journal of Medical Law and Management, 2; Hagenloch, U. (2023). Patient information in Germany. Journal of Medical Law and Management, 2(3), 3; Hagenloch, U. (2024). Medical Law News in Germany. Important Trends in German Judicial Practice in the First Half of 2022. Journal of Medical Law and Management, 1; Hagger, L. (2009). Parental Responsibility and Children’s Health Care Treatment. Responsible Parents and Parental Responsibility. Hart Publishing; Hajek, O. (2003). Lord Denning and Medical Law. Common Law Review, 5; Herring, J. (2022). Medical Law and Ethics (9th ed.). Oxford University Press; Hoppe, N., Moia, J. (2014). Medical Law and Medical Ethics. Cambridge University Press; Koniaris, V. Th., Konstantinidou, E. S. (2023). Greece. In Nys, H. (Ed.), International Encyclopedia of Laws: Medical Law. Kluwer Law International; Kvantaliani, N. (2014). Patient Rights and the Grounds of Civil Liability of Physicians. World of Lawyers; Labariega Villanueva P.A. (2005). Medical Attention Contract. Juridical Nature. Mexican law review, January-June. <http://info8.juridicas.unam.mx/cont/mlawr/3/arc/arc9.htm#N*>; Levy, S. (2009). Cultural Influences on Medical Law. Medicine and Law, 28(4); Lytvynenko, A. A. (2020). A Right of Access to Medical Records: The Contemporary Case Law of the European Court of Human Rights and the Jurisprudence of Germany. Athens Journal of Law, 6(1). <https://doi.org/10.30958/ajl.6-1-6>; Matytsin, D. E., Plaksunova, T. A. (2020). The content of the contract for the provision of paid medical services: Theoretical and applied analysis. Issues of Private Law Regulation: History and Modernity, 19(4). <https://doi.org/10.15688/lc.jvolsu.2020.4.12>; Mulheron, R. (2017). Duties in Contract and Tort. In Principles of Medical Law. Oxford University Press; Myronova, G. (2022). The Doctrine of the Patient’s Personal Autonomy in Absolute Legal Relations: Directions of Improvement of the Legislation of Ukraine. In Ukrainian Healthcare Law in the Context of European and International Law. Springer. <https://doi.org/10.1007/978-3-031-05690-1_6>; Nys, H. (2024). European Union Health Law. In Nys, H. (Ed.), International Encyclopedia of Laws: Medical Law. Kluwer Law International; Pepanashvili, N. (2016). Compensation for Damage Caused by a Medical Institution (Doctoral Dissertation). <https://press.tsu.ge/data/image_db_innova/samartal/nino_pepanashvili.pdf>; Prütting, J. (2023). Germany. In Nys, H. (Ed.), International Encyclopedia of Laws: Medical Law. Kluwer Law International; Rusiashvili, G., Kvantaliani, N., Zarandia, T. (2022). Concept of the Journal of Medical Law and Management. Journal of Medical Law and Management, 1; Semyonov-Tal, K. (2024). Keeping medical information safe and confidential: A qualitative study on perceptions of Israeli physicians. Israel Journal of Health Policy Research, 13. <https://doi.org/10.1186/s13584-024-00641-9>; Stetsenko, S. G. (2006). Medical error and accidents in the practice of healthcare institutions: Legal aspects. Expert-Criminalist, 2; Vashakidze, G., Gelashvili, I., Baghishvili, E., Rusiashvili, G., Aladashvili, A., Meskhishvili, K., Mots’onelidze, N., Batlidze, G., Jorbenadze, S., Gatserelia, A., Svanadze, G., Robakidze, I. (2019). Commentary on the Civil Code of Georgia, Book III, Chanturia, L. (Ed.); Wellman, C. (2005). Medical Law and Moral Rights. Springer. <https://doi.org/10.1007/1-4020-3752-X>. Legal Acts: Council of Europe. (1997). Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine. <https://rm.coe.int/168007cf98?utm_source=chatgpt.com>; Council of Europe. (1997). Recommendation No. R (97) 5 of the Committee of Ministers to Member States on the Protection of Medical Data. Adopted by the Committee of Ministers on 13 February 1997 at the 584th meeting of the Ministers’ Deputies. <https://rm.coe.int/16804da198>; German Criminal Code (1998). Violation of private secrets. Section 203. Federal Ministry of Justice. <https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html>; Law of Georgia on Health Care (1997). Legislative Herald of Georgia. <https://new.matsne.gov.ge/ka/document/view/29980?publication=58>; Law of Georgia on Medical Practice (2001). Legislative Herald of Georgia. <https://matsne.gov.ge/ka/document/view/15334?publication=32>; Law of Georgia on Patients’ Rights (2000). Legislative Herald of Georgia. <https://matsne.gov.ge/ka/document/view/16978?publication=15>; Law of Georgia on Personal Data Protection (2023). Legislative Herald of Georgia. <https://matsne.gov.ge/document/view/5827307?publication=5>; World Health Organization. (2006). Constitution of the World Healthcare Organization. <https://apps.who.int/gb/bd/PDF/bd47/EN/constitution-en.pdf?ua=1>; World Medical Association. (1981). Declaration of Lisbon on the Right of the Patient. <https://www.wma.net/policies-post/wma-declaration-of-lisbon-on-the-rights-of-the-patient/>; World Medical Association. (2022). WMA International Code of Medical Ethics. <https://www.wma.net/policies-post/wma-international-code-of-medical-ethics/>. Court Cases: European Court of Human Rights. (2003). Decision in the case of Y v. Turkey; European Court of Human Rights. (2004). Decision in the case of Glass v. the United Kingdom; European Court of Human Rights. (2006). Decision in the case of L.L. v. France; House of Lords. (1951). Decision in the case of Cassidy v. Ministry of Health; House of Lords. (1957). Decision in the case of Bolam v. Friern Hospital Management Committee; House of Lords. (1997). Decision in the case of Bolitho v. City and Hackney Health Authority; Supreme Court of Georgia, Chamber of Civil Cases. (April 30, 2025). Decision № AS-1280-2023; Supreme Court of Georgia, Chamber of Civil Cases. (March 13, 2025). Decision №AS-962-2024. Other Supporting Materials: Coalition for Reducing Bureaucracy in Clinical Trials. (2021). Recommendations of the Coalition for Reducing Bureaucracy in Clinical Trials. <https://bureaucracyincts.eu/>; Parliament of Georgia. (2019). Explanatory note to the draft law on Personal Data Protection. <https://info.parliament.ge/file/1/BillReviewContent/222087?>. Footnotes [1] Blanchard, C. N. (1921). Medical Law. Loyola Law Journal (New Orleans), 2(3), 17. [2] World Health Organization. (2006). Constitution of the World Healthcare Organization. <https://apps.who.int/gb/bd/PDF/bd47/EN/constitution-en.pdf?ua=1>. [3] Labariega Villanueva P.A. (2005). Medical Attention Contract. Juridical Nature. Mexican law review, January-June. <http://info8.juridicas.unam.mx/cont/mlawr/3/arc/arc9.htm#N*>. [4] Rusiashvili, G., Kvantaliani, N., Zarandia, T. (2022). Concept of the Journal of Medical Law and Management. Journal of Medical Law and Management, 1, 4. [5] Pepanashvili, N. (2016). Compensation for Damage Caused by a Medical Institution (Doctoral Dissertation). 1-240. <https://press.tsu.ge/data/image_db_innova/samartal/nino_pepanashvili.pdf>; Kvantaliani, N. (2014). Patient Rights and the Grounds of Civil Liability of Physicians. World of Lawyers. [6] Chavleshivili, G. (2023). Informed consent in the medical treatment of minors. Journal of Medical Law and Management, 2(3), 84-103; Gelashvili, I. (2024). Protection of patients lacking the capacity to give consent. Journal of Medical Law and Management, 2(5), 58-82. [7] Bichia, M. (2019). Features of Protecting the Patient’s Personal Autonomy and of Giving Informed Consent (Georgian and European Approaches). Law and the World, 12, 51-67. [8] Dannemann, G., Schulze, R. (2020). German Civil Code. Volume I: Books 1-3(§§1-1296), Article-by-Article Commentary. С.H. Beck & Nomos, 1149-1150. [9] Prütting, J. (2023). Germany. In Nys, H. (Ed.), International Encyclopedia of Laws: Medical Law (p. 68). Kluwer Law International. [10] Buchner, B. (2020). Informed consent in Germany. In Vansweevelt, T., Glover-Thomas, N. (Eds.), Informed consent and health: A global analysis (pp. 216-234). Edward Elgar Publishing. <https://doi.org/10.4337/9781788973427.00018>.https://doi.org/10.4337/9781788973427.00018 [11] Hagenloch, U. (2024). Medical Law News in Germany. Important Trends in German Judicial Practice in the First Half of 2022. Journal of Medical Law and Management, 1. 1-21. [12] Lytvynenko, A. A. (2020). A Right of Access to Medical Records: The Contemporary Case Law of the European Court of Human Rights and the Jurisprudence of Germany. Athens Journal of Law, 6(1), 103-122. <https://doi.org/10.30958/ajl.6-1-6>. [13] World Medical Association. (2022). WMA International Code of Medical Ethics. <https://www.wma.net/policies-post/wma-international-code-of-medical-ethics/>. [14] World Medical Association. (1981). Declaration of Lisbon on the Right of the Patient. <https://www.wma.net/policies-post/wma-declaration-of-lisbon-on-the-rights-of-the-patient/>. [15] Council of Europe. (1997). Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine. <https://rm.coe.int/168007cf98?utm_source=chatgpt.com>. [16] Bakradze, F. (2022). GCС’s- 630a-630h paragraphs – Medical service contract. Journal of Medical Law and Management, 1, 112. [17] Dannemann, G., Schulze, R. (2020). German Civil Code. Volume I: Books 1-3(§§1-1296), Article-by-Article Commentary. С.H. Beck & Nomos, 1149-1150. [18] Hagenloch, U. (2024). Medical Law News in Germany. Important Trends in German Judicial Practice in the First Half of 2022. Journal of Medical Law and Management, 1, 3. [19] Law of Georgia on Health Care (1997). Article 3(r). Legislative Herald of Georgia. <https://new.matsne.gov.ge/ka/document/view/29980?publication=58>; Law of Georgia on Patients’ Rights (2000). Article 4(d). Legislative Herald of Georgia. <https://matsne.gov.ge/ka/document/view/16978?publication=15>. [20] Prütting, J. (2023). Germany. In Nys, H. (Ed.), International Encyclopedia of Laws: Medical Law (p. 74). Kluwer Law International. [21] Wellman, C. (2005). Medical Law and Moral Rights. Springer, 195. <https://doi.org/10.1007/1-4020-3752-X>. [22] Law of Georgia on Health Care (1997). Article 3(a). Legislative Herald of Georgia. <https://new.matsne.gov.ge/ka/document/view/29980?publication=58>. [23] Prütting, J. (2023). Germany. In Nys, H. (Ed.), International Encyclopedia of Laws: Medical Law (p. 70). Kluwer Law International. [24] Hagenloch, U. (2023). Important trends in German judicial practice in the field of medical law in 2021. Journal of Medical Law and Management, 2, 1. [25] Hagenloch, U. (2023). Patient information in Germany. Journal of Medical Law and Management, 2(3), 3. [26] Matytsin, D. E., Plaksunova, T. A. (2020). The content of the contract for the provision of paid medical services: Theoretical and applied analysis. Issues of Private Law Regulation: History and Modernity, 19(4), 91. <https://doi.org/10.15688/lc.jvolsu.2020.4.12>. [27] Supreme Court of Georgia, Chamber of Civil Cases. (April 30, 2025). Decision № AS-1280-2023. [28] Dannemann, G., Schulze, R. (2020). German Civil Code. Volume I: Books 1-3(§§1-1296), Article-by-Article Commentary. С.H. Beck & Nomos, 1149-1162. [29] George, R. (2024). Medical Decision-Making about Children. In Wards of Court and the Inherent Jurisdiction. Hart Publishing, 123. <http://dx.doi.org/10.5040/9781509972173.ch-008>. [30] Gelashvili, I. (2024). Protection of patients lacking the capacity to give consent. Journal of Medical Law and Management, 2(5), 61. [31] Hagger, L. (2009). Parental Responsibility and Children’s Health Care Treatment. Responsible Parents and Parental Responsibility. Hart Publishing, 185-186. [32] Gelashvili, I. (2024). Protection of patients lacking the capacity to give consent. Journal of Medical Law and Management, 2(5), 61. [33] Chavleshivili, G. (2023). Informed consent in the medical treatment of minors. Journal of Medical Law and Management, 2(3), 97-98. [34] Hoppe, N., Moia, J. (2014). Medical Law and Medical Ethics. Cambridge University Press, 122. [35] Stetsenko, S. G. (2006). Medical error and accidents in the practice of healthcare institutions: Legal aspects. Expert-Criminalist, 2, 31. [36] Chavleshivili, G. (2023). Informed consent in the medical treatment of minors. Journal of Medical Law and Management, 2(3), 95. [37] European Court of Human Rights. (2004). Decision in the case of Glass v. the United Kingdom. [38] Hagenloch, U. (2023). Patient information in Germany. Journal of Medical Law and Management, 2(3), 42-43. [39] Chavleshivili, G. (2023). Informed consent in the medical treatment of minors. Journal of Medical Law and Management, 2(3), 95. [40] Levy, S. (2009). Cultural Influences on Medical Law. Medicine and Law, 28(4), 595-596. [41] Hajek, O. (2003). Lord Denning and Medical Law. Common Law Review, 5, 27. [42] Chanturia, L. (2011). General part of civil law. Samartali, 180. [43] Koniaris, V. Th., Konstantinidou, E. S. (2023). Greece. In Nys, H. (Ed.), International Encyclopedia of Laws: Medical Law (p. 132). Kluwer Law International. [44] Hoppe, N., Moia, J. (2014). Medical Law and Medical Ethics. Cambridge University Press, 112. [45]Law of Georgia on Health Care (1997). Article 11. Legislative Herald of Georgia. <https://new.matsne.gov.ge/ka/document/view/29980?publication=58>. [46]Law of Georgia on Patients’ Rights (2000). Article 4 (v and e). Legislative Herald of Georgia. <https://matsne.gov.ge/ka/document/view/16978?publication=13>. [47] Mulheron, R. (2017). Duties in Contract and Tort. In Principles of Medical Law. Oxford University Press, 104-105. [48] Law of Georgia on Patients’ Rights (2000). Article 4 (v and z). Legislative Herald of Georgia. <https://matsne.gov.ge/ka/document/view/16978?publication=15>. [49] Dannemann, G., Schulze, R. (2020). German Civil Code. Volume I: Books 1-3(§§1-1296), Article-by-Article Commentary. С.H. Beck & Nomos, 1155. [50] Myronova, G. (2022). The Doctrine of the Patient’s Personal Autonomy in Absolute Legal Relations: Directions of Improvement of the Legislation of Ukraine. In Ukrainian Healthcare Law in the Context of European and International Law (p. 101). Springer. <https://doi.org/10.1007/978-3-031-05690-1_6>. [51] World Medical Association. (1981). Declaration of Lisbon on the Right of the Patient. <https://www.wma.net/policies-post/wma-declaration-of-lisbon-on-the-rights-of-the-patient/>. [52] Council of Europe. (1997). Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine. <https://rm.coe.int/168007cf98?utm_source=chatgpt.com>. [53] Law of Georgia on Patients’ Rights (2000). Article 18(1). Legislative Herald of Georgia. <https://matsne.gov.ge/ka/document/view/16978?publication=15>. [54] Dughishvili, G. (2022). Informed consent in medicine. Journal of Medical Law and Management, 1, 126. [55] Nys, H. (2024). European Union Health Law. In Nys, H. (Ed.), International Encyclopedia of Laws: Medical Law (p. 17). Kluwer Law International. [56] Coalition for Reducing Bureaucracy in Clinical Trials. (2021). Recommendations of the Coalition for Reducing Bureaucracy in Clinical Trials. <https://bureaucracyincts.eu/>. [57] Bakradze, F. (2022). GCС’s- 630a-630h paragraphs – Medical service contract. Journal of Medical Law and Management, 1, 114. [58] Dannemann, G., Schulze, R. (2020). German Civil Code. Volume I: Books 1-3(§§1-1296), Article-by-Article Commentary. С.H. Beck & Nomos, 1154-1155. [59]Law of Georgia on Patients’ Rights (2000). Article 20. Legislative Herald of Georgia. <https://matsne.gov.ge/ka/document/view/16978?publication=15>. [60] Dannemann, G., Schulze, R. (2020). German Civil Code. Volume I: Books 1-3(§§ 1-1296), Article-by-Article Commentary. С.H. Beck & Nomos, 1155-1156. [61] Law of Georgia on Patients’ Rights (2000). Chapter II. Legislative Herald of Georgia. <https://matsne.gov.ge/ka/document/view/16978?publication=15>. [62] Vashakidze, G., Gelashvili, I., Baghishvili, E., Rusiashvili, G., Aladashvili, A., Meskhishvili, K., Mots’onelidze, N., Batlidze, G., Jorbenadze, S., Gatserelia, A., Svanadze, G., Robakidze, I. (2019). Commentary on the Civil Code of Georgia, Book III, Chanturia, L. (Ed.), 25. [63] Hoppe, N., Moia, J. (2014). Medical Law and Medical Ethics. Cambridge University Press, 48. [64] Davies, C. E., Shaul, R. Z. (2010). Physicians’ legal duty of care and legal right to refuse to work during a pandemic. CMAJ: Canadian Medical Association Journal, 182(2), 167. <https://doi.org/10.1503/cmaj.091628>. [65] Devereux, J., Beran, R. G. (2022). Medical Negligence Law in Australia. In Medical Liability in Asia and Australasia (p. 11). Springer. <https://doi.org/10.1007/978-981-16-4855-7>. [66] House of Lords. (1957). Decision in the case of Bolam v. Friern Hospital Management Committee. [67] Bryden, D., Storey, I. (2011). Duty of care and medical negligence. Continuing Education in Anaesthesia, Critical Care & Pain, 11(4), 125. <https://doi.org/10.1093/bjaceaccp/mkr016>. [68] House of Lords. (1997). Decision in the case of Bolitho v. City and Hackney Health Authority. [69] Supreme Court of Georgia, Chamber of Civil Cases. (March 13, 2025). Decision №AS-962-2024. [70] Dannemann, G., Schulze, R. (2020). German Civil Code. Volume I: Books 1-3(§§1-1296), Article-by-Article Commentary. С.H. Beck & Nomos, 1149-1150. [71] Hoppe, N., Moia, J. (2014). Medical Law and Medical Ethics. Cambridge University Press, 16. [72] World Medical Association. (2022). WMA International Code of Medical Ethics. <https://www.wma.net/policies-post/wma-international-code-of-medical-ethics/>. [73] Hoppe, N., Moia, J. (2014). Medical Law and Medical Ethics. Cambridge University Press, 21. [74] European Court of Human Rights. (2006). Decision in the case of L.L. v. France. [75] Prütting, J. (2023). Germany. In Nys, H. (Ed.), International Encyclopedia of Laws: Medical Law (p. 76). Kluwer Law International. [76] Parliament of Georgia. (2019). Explanatory note to the draft law on Personal Data Protection. <https://info.parliament.ge/file/1/BillReviewContent/222087?>. [77] Law of Georgia on Personal Data Protection (2023). Definitions, Article 3(b–g). Processing of special category data without the grounds provided by this Law, Article 68. Legislative Herald of Georgia. <https://matsne.gov.ge/document/view/5827307?publication=5>. [78] German Criminal Code (1998). Violation of private secrets. Section 203. Federal Ministry of Justice. <https://www.gesetze-im-internet.de/englisch_stgb/englisch_stgb.html>. [79] Herring, J. (2022). Medical Law and Ethics (9th ed.). Oxford University Press, 305. [80] European Court of Human Rights. (2003). Decision in the case of Y v. Turkey. [81] Law of Georgia on Patients’ Rights (2000). Article 20(1). Legislative Herald of Georgia. <https://matsne.gov.ge/ka/document/view/16978?publication=15>. [82] Law of Georgia on Medical Practice (2001). Confidentiality of Information. Article 48. Legislative Herald of Georgia. <https://matsne.gov.ge/ka/document/view/15334?publication=32>. [83] Semyonov-Tal, K. (2024). Keeping medical information safe and confidential: A qualitative study on perceptions of Israeli physicians. Israel Journal of Health Policy Research, 13, 2. <https://doi.org/10.1186/s13584-024-00641-9>. [84] Law of Georgia on Health Care (1997). Article 43. Legislative Herald of Georgia. <https://new.matsne.gov.ge/ka/document/view/29980?publication=58>. [85] Dannemann, G., Schulze, R. (2020). German Civil Code. Volume I: Books 1-3(§§1-1296), Article-by-Article Commentary. С.H. Beck & Nomos, 1149-1150. [86] Prütting, J. (2023). Germany. In Nys, H. (Ed.), International Encyclopedia of Laws: Medical Law (p. 83). Kluwer Law International. [87] Abdelkader, Y. (2025). Towards a Special Compensation System Aligned with the Unique Nature of Civil Liability for Medical Applications of Genetic Engineering. Law and World, 34, 45. <https://doi.org/10.36475/L.A.W.14>. [88] Council of Europe. (1997). Recommendation No. R (97) 5 of the Committee of Ministers to Member States on the Protection of Medical Data. Adopted by the Committee of Ministers on 13 February 1997 at the 584th meeting of the Ministers’ Deputies. <https://rm.coe.int/16804da198>. [89] Dobrijevic, G., Stanisic, M., Masic, B. (2011). Sources of negotiation power: An exploratory study. South African Journal of Business Management, 42(2), 35-36. <https://doi.org/10.4102/sajbm.v42i2.493>. [90] Chavleshivili, G. (2023). Informed consent in the medical treatment of minors. Journal of Medical Law and Management, 2(3), 97-98. [91] Hagenloch, U. (2023). Patient information in Germany. Journal of Medical Law and Management, 2(3), 42-43. [92] House of Lords. (1951). Decision in the case of Cassidy v. Ministry of Health.
Legal Implications of Renewable Energy Technologies: A Comparative Legal Analysis
The paper will discuss legal aspects of renewable energy technologies by comparing India, the United States, and Germany. It integrates both case law analysis and a framework of Policy evaluation to identify three determinative factors in the outcome of renewable energy: regulatory certainty, institutional capacity, and market integration. The results indicate that investors are confident in predictable and enforceable regulations, as seen in Germany, through stable feed-in tariffs, in contrast to the uncertainty of the U.S. tax incentives and the poor enforcement of Renewable Purchase Obligations in India. Institutional strength is highly connected to project acceleration, and delays in the U.S and Indian cases as compared to a relatively consistent regulatory framework in Germany. Reduction of cost comes with competition mechanisms like auctions, but their efficiency depends on an open and enforceable legal framework. The paper concludes that cost-effective, socially legitimate, and investor-friendly renewable energy transitions cannot be attained without the presence of adaptive and coherent legal frameworks that are based on the principles of enforceability, institutional robustness, and policy coherence. Keywords: Renewable energy law, comparative legal analysis, institutional capacity, investor confidence, policy innovation. Introduction Renewable energy technologies are also leading the struggle to reach sustainable energy systems in the world. They provide very high benefits to the environment and economy as greenhouse gas (GHG) emissions abatement and offset expenditure in the long term.[1] Nevertheless, transition is not only technically feasible, but it is institutionalized in the complex law, institutional, and policy frameworks, and differs across jurisdictions. The global shift to sustainable energy systems would not be possible without renewable energy technologies. They have significant environmental, economic, and social advantages, thus requiring to reduction in the emission of GHG and addressing climate change.[2] The global energy transition involves wind and solar PV technologies as renewable energy technologies that can provide two-thirds of the global energy needs, and emissions of GHG can be reduced to a significant degree.[3] Renewable energy offers great economic and environmental rewards, such as savings in cost, decreased cost of lifecycle, and decreased GHG emissions.[4] The energy transition requires the development of renewable resources technologies, i.e., solar, wind, biogas, and biomass. Moreover, these technologies have to be effectively incorporated into the energy systems to make the most of them.[5] Besides, facilitating regulation systems is invaluable in accelerating the development of renewable energy technologies. A change in the following structures can trigger the necessary pace of moving towards renewable energy.[6] Although these are the advantages, there are drawbacks to widespread adoption of renewable resources technologies, such as technological, economic, and social obstacles.[7] The current reaction to the dynamic inverters that operate the Renewable Energy Sources (RES) in the power grid creates potential legal issues in trying to integrate renewable energy technologies into the power grid, since the inverters and protection systems’ design has to respond to the dynamic nature of the RES.[8] There are also difficulties in the asynchronous ability to tie converter-based RES, such as wind and solar, to the grid that result in low delivery of vital power system functions, such as inertia and strength, and require viable approaches to assessment and definite requirements to achieve safe integration.[9] Tax subsidies, regulatory limits, and energy storage are also important policy factors in overcoming the challenges relating to incorporating renewable resources, especially in the optimal exploitation of solar and wind energy resources in the existing grid infrastructure.[10] The legal framework surrounding the adoption of renewable energy is very fragmented and uneven across jurisdictions, even though this energy source has become central to the sustainability of the globe. The literature on the subject often gives us descriptive explanations of treaties, incentives, and policies, but seldom offers a comparative systematic assessment of their efficacy. Regulatory certainty, institutional capacity, and market integration are also critical issues that have not been adequately researched yet despite their decisive influence on determining the confidence of the investments, the timing of projects, as well as cost effectiveness. The existence of weak enforcement in India, fragmentation in the United States of America, and competition restrictions to competition dynamics within the European Union in Germany highlight institutional gaps, indicating that comparative legal analysis and evidence-based policy suggestions are necessary. The paper will critically examine the legal issues surrounding renewable energy technologies by conducting a comparative analysis of India, the United States, and Germany by applying the case law analysis and policy evaluation frameworks to determine the best practices, gaps in the institutions, and policy recommendations that enhance sustainable, cost-effective, and investor-friendly transitions in the energy system. To achieve this goal, the paper will focus on the following research questions (RQ): RQ 1. What is the relationship between regulatory certainty, institutional capacity, and market integration, and the effectiveness of renewable energy laws in India, the United States, and Germany? RQ 2. What are the similarities and differences between comparative case law and policy regimes in these jurisdictions, and what are their implications on investor confidence, project acceleration, and reduction in costs? RQ 3. What evidence-based legal and policy actions can be advocated to reinforce the governance of renewable energy uses and promote sustainable, socially acceptable, and investor-friendly transitions? The paper is organized as follows: Section 1 describes the international and national frameworks; Section 2 discuss intellectual property rights in renewable energy; Section 3 take into account the environmental regulation and compliance; Section 4 discuss contractual and commercial consideration; Section 5 case studies; Section 6 take into consideration a discussion. Methodology The study adopts a comparative legal framework and discusses the legal implications as regards renewable energy technologies. This framework is a combination of the doctrinal analysis of the law and the courts and policy appraisal model; therefore, there is a need to have a unified and thorough process of appraisal of the law in various jurisdictions. Amicus Solar Pvt. Ltd. v. State of Maharashtra in India, the litigation over the Cape Wind Project in the United States, and litigation in the Energiewende system of Germany are high-profile cases. These cases show the similarities, such as the judicial emphasis in conducting an environmental impact analysis, and differences, such as the enforceability of renewable purchase requirements in India and the conflict of federal and state competencies in the U.S. The policy evaluation framework compares the legal and institutional background to three criteria: regulatory certainty, institutional capacity, and market integration. The comparative evidence suggests that the U.S. is characterized as being very incentive-based and has consistency issues. India has high statutory goals and an inability to execute them the same way. Germany has a subsidy-to-auction transition that is firmly founded on EU competition legal principles. Utilizing a fusion of judicial reasoning and policy examination, the research will offer a systematic inter-jurisdictional examination, best practices, common traps, and remedies to be repatriated to share renewable energy across the globe. 1. International and National Legal Frameworks 1.1. International level The international legal framework of renewable energy technology is a complex of rules established by agreements and protocols to stimulate the technology related to renewable energy. In 1992, the UN Framework Convention on Climate Change (UNFCCC) highlighted the need to stabilize GHG in the atmosphere as well as sustainable development.[11] The Energy Charter Treaty (ECT)1994 was signed in order to promote global cooperation in the field of energy.[12] It aims at establishing a legal framework of energy commerce, protection of investment, and dispute resolution among the member states. The ECT gives the investors in fossil fuels the opportunity to challenge the environmental and climate policies, and thus stall massive climate action.[13] The uniform interpretation and application of the provisions of the ECT by the arbitral tribunals and domestic courts have not been consistent, thus leading to the absence of legal clarity in the settlements of investor-state disputes.[14] In 2009, the law of the International Renewable Energy Agency (IRENA) was passed to make greater use of all the renewable resources in a sustainable manner. The IRENA assists the states to move to renewable energy and is used as a platform of international cooperation and storage of knowledge regarding renewable energy.[15] IRENA helped to access renewable data, policy, capacity-building, and technology transfer (TT).[16] In the year 2009, the Kyoto Protocol was imposed on the industrialized countries to cut GHG emissions.[17] In 2015, the SDGs emphasized the significance of renewable energy in SDG7.[18] In accordance with the SDGs, the Paris Agreement of 2015 aims at reducing global warming to levels that are lower than the pre-industrial levels,[19] and in addition to this, it suggests that countries should contribute, financially assist developing countries, TT, and capacity-building.[20] All these treaties and agreements are aimed at promoting cooperation between countries and ensuring the implementation of renewable energy technologies. 1.2. National legal framework Implementation of renewable energy is facilitated by a complicated system of national laws and regulations in different nations. The legal frameworks for the adoption of renewable energy are varied and vary in various countries, as there are different social, political, and economic backgrounds. 1.2.1. United States (US) The policy of renewable energy in the US is constituted by both federal and state policies.[21] At the federal level, there is the Energy Policy Act of 2005 that provides loan guarantees and tax credits to facilitate energy production among the different sectors, which include renewable energy.[22] It facilitates the development of clean energy technologies, including the Investment Tax Credit and the Production Tax Credit. The credits can be used together to lower the initial cost of installing and keeping up the new RES operational, which makes the clean energy projects more cost-effective and promotes investment in renewable energy infrastructure.[23] The unpredictability in the US renewable energy investment climate is caused by the absence of long-term power purchase agreements and dependency on the changing tax incentives, which leads to uncertainty in investment. This may be stabilized by a national renewable portfolio standard, which would require long-term contracts for renewable energy projects.[24] Offshore renewable energy development in the US is managed by federal policies that differ from state policies. These policies are aimed at the permission, research, and innovation to facilitate technologies such as offshore wind energy.[25] Also, the Progressive energy storage technologies, including the electrochemical batteries, are important in order to incorporate the renewable energy into the grid. The federal rules (especially FERC Order 841)[26] are supposed to enable a structure of participation in the energy storage market, yet further detailed design changes are required to achieve efficient integration.[27] In addition to this, the solar energy policies in the US comprise federal incentives and several state-based initiatives. The challenges are permission procedures, funding processes, and interconnection standards, which differ greatly among states.[28] Renewable energy is greatly affected by the state’s politics, policies, and prices. Policies on renewable energy are influenced by factors like professionalism of the legislature and political affiliations of the governor and the legislators.[29] 1.2.2. India The legal system in India has developed a renewable energy system to address the challenges and facilitate the normal development of renewable energy. The Electricity Act 2003[30] transformed the power sector by offering reforms, but failed to mention renewables specifically, which slowed down the goal of achieving 175 GW of installed capacity by 2022 in India.[31] Renewable energy is another important player in the energy economy development of the country, as it aims to utilize technologies such as blockchain to achieve transparent energy transitions and peer-to-peer trading to empower prosumers.[32] The Indian government has also put in place a number of policies and frameworks that facilitate the integration of renewable resources, including the Renewable Purchase Obligation and Renewable Energy Certificate.[33] These policies provide incentives to generate RES and also to conform to the regulations of the state and central policymaking.[34] Proper regulation is essential in incorporating renewable energy into the electricity market. The framework should enable the forecasting, planning, and managing of imbalances to provide grid stability and access to renewable sources in the market.[35] In spite of the development, a number of obstacles hinder the wide adoption of renewable resources technologies. These are technical, economic, market-related and institutional challenges. It is necessary to solve these obstacles with the help of policy interventions and improvements of the current legal framework.[36] India has achieved a lot with regard to renewable energy and especially solar and wind energy industries have been very successful in the country. These efforts are still supported by the government which provides the financial, institutional, and educational assistance to ensure the energy security and economic prosperity of the country.[37] The policies of the renewable energy in India match the international sustainability and mitigation of climate change. Presence in international regimes like the UNFCCC will boost the country in the development of renewable energy technologies in addition to responding to world environmental issues.[38] 2. Intellectual Property Rights (IPR) in Renewable Energy IPRs are important in the encouragement of innovativeness in the renewable energy industry. They offer a framework of the law that secures investments of companies and people in new technologies, knowing that inventors can enjoy the fruits of their labor. This insurance encourages additional R&D, and it is essential to improve the technologies of renewable energy. The renewable energy has been affected by the IPR. Firstly, the high IPR protection is a great stimulus to the procurement of renewable energy since it encourages companies to invest in renewable energy technologies. The higher the protection rights, the more renewable energy production will be resulted in, which will enhance sustainability.[39] Moreover, IPR affects the performance of innovation; an example of this is in China where it was shown that government subsidies in combination with strong IP protection increase the performance of renewable energy enterprises in creative performance. This will aid in R&D as well as increase the ability of companies to innovate.[40] Moreover, the IP protection is a significant aspect of the economic growth, especially in the open economies. It promotes and implements new technologies because it is a secure investment environment.[41] In addition to this, IPRs introduce certain barriers and facilitators; even though IPRs tend to enhance innovation, they may have certain barriers particularly in the use of renewable energy in the developing countries. IRPs are also reliant on the efficiency of R&D and other economic aspects such as the trade openness.[42] Moreover, just like renewable energy, IPRs in agriculture have been observed to maintain innovation and change in technology. They give economic stimulus that promotes R&D and facilitates the innovation of new technologies, including the plant breeder rights in Canada.[43] Later, IPRs also play a vital role in manufacturing industries as far as sustainable innovation is concerned. They assist in unlocking sustainable innovations but occasionally can postpone their dissemination.[44] The main types of IPRs are the following: patents, copyrights, trademarks and trade secrets. Patents protect the novelty by providing the inventor with what is known as an exclusive right which is the right to prevent any other party to produce, use, or sell the invention during a specified period, normally twenty years. Patents in the renewable energy industry provide a high patronage value to companies. Firms that have good patent portfolios, meaning that they have strong patents protection capabilities, are more likely to be overvalued in the market.[45] One of the indicators of technological innovation in renewable energy is patents. Renewable energy technologies have a positively affecting rate of innovation due to the supportive policies of public policies favoring R&D and patenting activities.[46] Other than patenting, software and digital innovations in renewable energy technologies can be safeguarded by copyright. They assist in ensuring that the financial worth of these innovations is guaranteed by avoiding unauthorized reproduction and distribution.[47] The trademarks assist the companies dealing with renewable energy to distinguish their products and to establish brand loyalty. The successful trademark can strengthen market share and consumer trust on renewable energy products.[48] 3. Environmental Regulations and Compliance The environmental laws contribute significantly to the development of renewable resources projects. These laws strive to create some form of balance between the need to have clean energy and the need to save the environment. Offshore Renewable Energy Projects in the US had environmental and regulatory obstacles, especially in the offshore industry, such as the requirement of detailed Environmental Impact Statements (EIS) and the lack of certainty in determining the ecological impact of new technologies. Regulatory frameworks also engage several agencies and involve much participation by the masses and stakeholders to deal with the physical and biological effects of such projects.[49] The scientific uncertainty and complexity of EIA have prompted delays and opposition among the citizens in Spain. Regulatory improvements should be made to improve the ease of EIAs, increase the participation of the people, preserve the marine biodiversity, and promote the development of renewable energy.[50] In Japan and the EU, the EIA process has been cited as a hindrance to large-scale renewable energy projects, and reforms have been called to bring a balance between protecting the environment and developing the projects. These processes are important in reduction of climate change by ensuring they are streamlined to help with socio-economic problems.[51] The environmental laws of the EU have made a positive impact in embracing and embracing renewable energy technologies. Nevertheless, such regulations should be tangibly combined with environmentally-friendly technologies to make the most of the use of renewable energy. Large-scale renewable projects should have sufficient environmental and social impact evaluation. Such evaluations should take into account ecosystem services and climate resilience to achieve the sustainable potential of renewable energy.[52] An increase in renewable energy infrastructure results in land use alteration, which has the potential to cause harmful effects to ecosystems.[53] The importance of ecosystem services in China has been recognized in a multi-level legal system with both centralized and decentralized structures. These are lawful instruments, such as land use differentiation, payment of ecosystem services, and litigation on the part of the public interest, which are designed to both protect the ecosystems and encourage renewable resources.[54] The EU has had legal problems in the integration of renewable energy objectives with conservation directives, e.g., the Habitats and Birds Directives.[55],[56] The absence of coordination between these instructions may slow down the implementation of renewable energy projects. The solution to these goals is the proposal of adaptive management strategies and detailed plans for renewable energy.[57] The rapid development of RES, especially in such regions as the western US, has been associated with great ecological problems. These are habitat-breaking and the displacement of species. These challenges need to be tackled with effective legal strategies and mitigation activities in order to proceed with the development of sustainable energy.[58] 4. Contractual and Commercial Considerations A number of contractual agreements and commercial arrangements are involved in the renewable energy industry to make the projects successful and to be developed successfully. It is necessary to have a number of contractual agreements and commercial arrangements. These contracts provide clarity among the parties, risk reduction, and easy investment. Firstly, PPAs are the long-term agreements between producers and consumers of renewable energy, where the former usually sell the electricity to utilities or big corporations at a fixed rate. Such deals play a vital role in getting the funding and a stable flow of revenue to the renewable energy projects. To give an example, in the US, PPAs are becoming increasingly popular among privately owned companies to purchase the renewable power. Such agreements are useful in ensuring that companies attain the objectives of sustainability and offer financial stability to the developers of the project.[59] The Corporate PPAs are becoming more popular as corporations strive to decrease their impact on the environment. They enable companies to gain access to renewable energy at a competitive cost and balance between cost and long-term sustainability objectives.[60] Moreover, other ownership structures and financing provisions are employed in the renewable energy sector, such as project finance, limited partnerships, and sale/ leaseback. These are the structures that assist in the management of risk and investment. Moreover, utility proprietors occasionally directly possess and fund renewable energy undertakings, which have the advantage of saving expenses and being able to operate undertakings compared to acquiring influence of power produced by independent generators.[61] In addition, consumer co-ownership will also be necessary, in which the consumer (co-)ownership models include community investment in renewable energy projects, where local participation and acceptance are encouraged.[62] Also, there is the issue of regulatory and commercial hurdles, including the regulatory environment, which is very much influencing the feasibility and attractiveness of the renewable energy projects. To develop and run such projects, policies and market structures should be in place. Similarly, RECs are contractual documents that represent the environmental value of producing renewable energy. They are applied to address the regulatory requirements and to assist the renewable energy markets.[63] Common techniques of obtaining long-term contracts with independent power-producing units are auctions, which are known to provide a competitive price and simple procedures. A good auction design involves establishing clear guidelines and contractual provisions, which provide healthy competition and good delivery of projects.[64] Hybrid stochastic and robust optimization models are advanced contracting strategies that can be used to address the risks involved in the generation of renewable energy and market uncertainties. The hybrid approach that stochastic programming is used together with robust optimization assists energy trading firms in Brazil in developing optimal contracting strategies when markets are characterized by uncertainties.[65] Contracts related to renewable energy are associated with special risks and liabilities because such projects are complicated, and the regulatory environment changes over time. The risk management of developing renewable energy projects on polluted premises includes a combination of property and commercial general liability cover and site contamination liability cover. The strategy is good when tackling the long-term risks that are not diminishing in the long run.[66] The significance of dispute resolution in the energy sector is because the WTO offers a legalized dispute settlement system to minimize uncertainty and enhance the utility of the results of dispute resolution. The features of this mechanism include clear substantive rules, procedural rules, and independent legal bodies, legal precedents.[67] Other countries adopt different methods of resolving renewable energy disputes, together with global dispute settlement, which is the WTO. China has also taken an initiative in the dispute trade in renewable energy by using the domestic courts and the WTO dispute settlement mechanism to deal with the anti-dumping and countervailing measures. The design of a construction contract may avoid conflicts, and the mediation, arbitration, and other methods of Alternative Dispute Resolution (ADR) may play an important role in efficient conflict resolution.[68] International arbitration has emerged as one of the popular ways of settling disputes in the energy industry, and there is a just and effective way of reducing the risks that relate to international business dealings. 5. Case Studies To exemplify the legal issues and aspects of renewable energy technologies. The case studies provided below provide a crucial perspective on the legal issues of renewable energy technologies, especially in new economies such as India, Germany, and the US. Striking a balance between the contractual requirements, regulatory adherence, and just following penalties in the renewable energy project implementation is important towards ensuring project implementation success. 5.1. The legal battle over solar energy in India – Amicus Solar and the enforcement of solar obligations India has put a lot of investment in renewable energy, especially solar power, to address climate change.[69] Through the various programs, the Indian government has established lofty goals for the establishment of solar energy systems in the nation. Among them is the National Solar Mission program that promotes the production and utilization of solar energy in generating power. The Indian case of Amicus Solar Pvt. Ltd. v. State of Maharashtra is an example of the court tussle over the solar energy mandate.[70] This was a case of RRPOs being put in place where some entities are bound to purchase a minimum percentage of their energy as renewable energy. The case brought out the difficulties associated with the implementation of RPOs, especially the regulatory and legislative difficulties in compliance by the state agencies, as well as in the case of individual entities. The problems encompassed the interpretation of the RPO requirements, the consequences of failure to comply, and the role of the regulatory bodies in implementing the required targets on renewable energy.[71] The case has shown the importance of a sound legal and regulatory framework to help in promoting renewable energy in India and explicit and binding obligations of stakeholders. 5.2. Cape Wind Project (United States) The Cape Wind Project would be constructed on the Horseshoe Shoal in Nantucket Sound, and the aim was to install 130 wind turbines, which would produce around 420 megawatts of power.[72] The project can satisfy nearly three-quarters of the electrical needs of Cape Cod and the neighboring islands.[73] This project was also met with serious legal risks, such as environmental lawsuits, local stakeholders’ opposition, and the federal and state jurisdiction. The project cast doubts over whether the current regulatory frameworks sufficed in the regulation of offshore wind energy, EIA, and the balancing of the interests of the locals and the national interests in renewable energy.[74] The Cape Wind project continued to encounter legal hurdles in 2010 following a series of challenges by different groups of people, such as environmentalists, local towns, and the Wampanoag tribe.[75] The delays and ultimate failure that Cape Wind witnessed show the necessity to have more efficient regulatory structures and an activity plan on how to engage the masses on renewable energy development projects. It is a warning of what to expect in future projects in the United States and the world over.[76] 5.3. German Energiewende and Feed-in Tariffs(FITs) The Energiewende (Energy Transition) is a comprehensive policy project to convert the nation into a low-carbon economy that is based on renewable energy, and a significant part of this is wind and solar energy.[77] The Energiewende legal framework involved the establishment of the FITs to promote investment in renewable energy.[78] Nevertheless, there were some pitfalls with these policies, including the controversy about the cost burden on the consumer, the effect on the energy market, and the legal reforms to facilitate the galloping development of renewables. There were also legal difficulties when the EU regulations came into being, and on the state aid and competition law.[79] Although Energiewende has been rather effective in augmenting the renewable energy capacity, it has caused considerable legal and policy controversies regarding energy market reform, the position of subsidies, and how renewables fit into the energy grid.[80] These examples emphasize the significance of stipulating the contractual commitments and contingencies of the renewable energy projects, especially in certain complicated regulatory settings.[81] They also indicate the necessity of governments to streamline the process of regulations in a way that would make renewable energy projects run on time. 6. Discussion It is observed that in a systematic comparative assessment, the success of the law of renewable energy is determined by the interplay of regulatory certainty, institutional capacity, and the integration of the market; however, each jurisdiction has different tracks. 6.1. Regulatory certainty and investor confidence As the German experience of feed-in tariffs (FITs) shows, long-term legal stability can lead to a great deal of investment in renewables, though with controversy on the costs to consumers. , On the contrary, the intermittent nature of tax incentives in the United States makes it a fluctuating investment environment that puts off long-term investments in capital. Even in good statutory frameworks, India is characterized by a lack of fair application of Renewable Purchase Obligations (RPOs), which destroys investor confidence. According to Johnstone, Hascic, and Popp (2009), and other scholars, stable legal incentives have a direct correlation with the activity of patenting and innovation in the renewables and energy sector; Li et al. (2020) warn that excessive protection of intellectual property rights impedes diffusion in developing nations. This is an indication that clarity and enforceability, rather than the existence of laws, are influential in the determination of investor behavior. 6.2. Institutional capacity and project acceleration The problem of institutional weakness comes up as a setback. The Amicus Solar Pvt. Ltd. v. State of Maharashtra case provides an example of the inability to adhere to the RPOs due to the lack of proper enforcement of the regulations and its impact on the project timeline.[86] On the same note, the long court battle over the Cape wind Project shows a divided jurisdictional power in the U.S.[87],[88] Conversely, the Energiewende in Germany was aided by consistent institutions, but was limited by the EU competition law.[89] The literature tends to believe that the enforcement of the institution takes a back seat to the policy design, although case studies show that institutional strength is vital in ensuring timely project delivery.[90] Delays can be reduced by regulatory streamlining, such as statutory deadlines on Environmental Impact Assessments (EIAs), which would raise the cost of projects.[91] 6.3. Market integration and cost Reduction The cost-efficiency of the deployment of renewable energy is also influenced by market mechanisms. German Competitive auctions have shown that there is downward pressure on renewable energy tariffs[92],[93] whereas the Renewable Energy Certificate (REC) system in India has failed because of poor compliance and poor enforcement.[94],[95] The use of storage technologies in the U.S. has been inconsistently integrated because of the fragmented state-federal regulation.[96] Despite the broad praise of auctions in the literature of scholarship in terms of efficiency gains,[97] not much is said about the legal enforceability of auctions and their correspondence to supranational law. One of the comparative lenses implies that a legal coherence in the design of the auction is as important as economic competitiveness in guaranteeing sustainable cost savings. 6.4. Balancing environmental and social interests The other theme that is common in different jurisdictions is the harmony between environmental conservation and renewable growth. The literature tends to criticize EIAs due to delays in their processes, but it tends to understate the democratic and justice-promoting aspect of EIA.[98] The case of Cape Wind litigation demonstrates the effects of insufficient engagement of stakeholders,[99] whereas EU directives indicate the tension between biodiversity protection and renewable implementation.[100] A comparative approach indicates that in the case of a legal process of streamlining and participation, environmental assessments can simultaneously protect the ecosystems and promote the uptake of renewables.[101] 6.5. Critical engagement with existing scholarship In a closer examination of the literature available on renewable energy law, it can be observed that much of it is descriptive as opposed to being evaluative. It is common practice to list categories of policies, including feed-in tariffs, renewable energy certificates, tax incentives, etc. in studies, but there is seldom a systematic comparison of their enforceability and effectiveness in the long run across jurisdictions. As an illustration, Johnstone, Hascic, and Popp (2009) highlight the beneficial connection between policy support and patenting activity, but pay little focus on the legal certainty and enforceability of such measures, which the present study states as the key factors in investor confidence.[102] On the same note, Goyal and Jha (2009) show promise of REC in India, but emphasize without addressing the chronic non-compliance with the scheme, which undermines its utilization in reality. The literature on institutional capacity also has contradictions. Dubey, Agrawal, and Sharma (2023) highlight a boisterous statutory targets of India, but the cases, including Amicus Solar Pvt. Ltd. v. State of Maharashtra, have shown that enforcement mechanisms are weak and thus cannot support the expectation of the state. Weschenfelder et al. (2020) observe the incentives offered by the government, especially the taxes, in stimulating renewable development in the United States, yet the time-consuming Cape Wind Project litigation demonstrates the potential risks of split federal, state authority,[103] which is not sufficiently emphasized by current analyses. Germany, in contrast, is often portrayed as a success story because of its Energiewende and feed-in tariff system,[104] although the legal conflict caused by EU competition law[105] is often overlooked in scholarly research as a critical limitation, which is the focus of the current study. There are contradictions in environmental regulation literature, also. An example of this is by Schumacher (2017), who criticizes the idea of EIA due to delays in the procedure; however, these descriptions do not reflect the democratic and participatory merit of Environmental Impact Assessment. Entering this paper will show that procedural rigor, coupled with legislative schedules and participation of local communities, can simultaneously protect the environment and increase the uptake of renewable sources, thus resolving the efficiency and legitimacy dilemma.[106] By filling such gaps and contradictions, the study will add to the literature by showing that law does not display only such policy tools but is a more structural determinant of renewable energy transitions. Comparative examination of India, the US, and Germany demonstrates that such variables as regulatory certainty, institutional strength, and policy instruments’ enforceability are the tools that cannot be ignored and are frequently forgotten in the current literature. Conclusion This comparative study confirms that law is not a passive context but an active factor that determines the results of renewable energy. The divergent cases of India, the US, and Germany show that regulatory certainty, institutional capacity, and market integration are the determining variables influencing the success of renewable energy transitions. To minimize the identified gaps, it is possible to promote a number of evidence-based recommendations. One, the jurisdictions should focus on regulatory certainty to improve investor confidence. This would entail enforcing RPOs bindingly in India, whereas harmonized creation of renewable portfolio standards would reduce policy volatility in the US. The predictability of incentive plans on the long term (FITs, competitive auctions, tax credits, etc.) needs to be preserved across the jurisdictions to reduce sudden inversion and the loss of trust, and a disincentive to invest capital. Second, institutional capacity is critical for the acceleration of projects. By setting up statutory deadlines on environmental approvals, delays would be minimized, and costs related to litigation would be reduced. Moreover, the regulatory bodies have to be given enough institutional freedom to be left alone to perform their task without the interference of politics, to ensure that any dispute is resolved in time, as well as the enforcement of contracts. Third, to realize cost-cutting, it needs more coherent market integration. The efficiency and transparency of auction rules, which can be enforced across borders, would make the auction systems more efficient and cost-effective. Moreover, greater enforcement of the Renewable Energy Certificate schemes would increase the liquidity in the market, as well as, where feasible, linking the schemes with carbon trading systems, which would help in efficient allocation of resources. Lastly, balanced development necessitates legal structures that assist in acknowledging environmental protection as well as social legitimacy. Costly post-approval disagreements can be avoided by using participatory models of EIA, whereby the local communities are involved during the initial phases of project design. In the same vein, integrating biodiversity guidelines with renewable implementation strategies would prevent the occurrence of conflicting regulations, which would otherwise interfere with a smooth implementation of projects. This research has highlighted how such recommendations can be advanced by emphasizing the fact that adaptive legal innovation based on enforceability, institutional strength, and policy consistency is necessary to create renewable energy systems that are cost-effective, socially acceptable, and appealing to investors. It represents a continuation of the main part of the text. 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Current Trends and Future Directions in Renewable Energy Systems. International Journal for Research Publication and Seminar, 15(2), 186-198. https://doi.org/10.36676/jrps.v15.i2.1408. [2] Adefarati, T., Bansal, R. C. (2019). Reliability, economic and environmental analysis of a microgrid system in the presence of renewable energy resources. Applied Energy, 236, 1089-1114. https://doi.org/10.1016/j.apenergy.2018.12.050. [3] Gielen, D., Boshell, F., Saygin, D., Bazilian, M. D., Wagner, N., Gorini, R. (2019). The role of renewable energy in the global energy transformation. Energy Strategy Reviews, 24, 38-50. https://doi.org/10.1016/j.esr.2019.01.006. [4] Weschenfelder, F., de Novaes Pires Leite, G., Araújo da Costa, A. C., de Castro Vilela, O., Ribeiro, C. M., Villa Ochoa, A. A., Araújo, A. M. (2020). A review on the complementarity between grid-connected solar and wind power systems. Journal of Cleaner Production, 257, 120617. https://doi.org/10.1016/j.jclepro.2020.120617. 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Historical institutionalist perspective on the shift from feed-in tariffs towards auctioning in German renewable energy policy. Energy Research & Social Science, 43, 33-40. https://doi.org/10.1016/j.erss.2018.05.022. [78] Erneuerbare-Energien-Gesetz [EEG] [Renewable Energy Sources Act] (2017). [in Germany] [79] Nordensvärd, J., Urban, F. (2015). The stuttering energy transition in Germany: Wind energy policy and feed-in tariff lock-in. Energy Policy, 82, 156-165. https://doi.org/10.1016/j.enpol.2015.03.009. [80] Haas, T., Sander, H. (2016). Shortcomings and perspectives of the German Energiewende. Socialism and Democracy, 30(2), 121-143. https://doi.org/10.1080/08854300.2016.1183996. [81] European Commission v. Federal Republic of Germany, Case C-405/16 P (2019). [in European Union] [82] Leiren, M. D., Reimer, I. (2018). Historical institutionalist perspective on the shift from feed-in tariffs towards auctioning in German renewable energy policy. Energy Research & Social Science, 43, 33-40. https://doi.org/10.1016/j.erss.2018.05.022. [83] Nordensvärd, J., Urban, F. (2015). The stuttering energy transition in Germany: Wind energy policy and feed-in tariff lock-in. Energy Policy, 82, 156-165. https://doi.org/10.1016/j.enpol.2015.03.009. [84] Yi, H., Feiock, R. C. (2014). Renewable energy politics: Policy typologies, policy tools, and state deployment of renewables. Policy Studies Journal, 42(3), 391-415. https://doi.org/10.1111/psj.12066. [85] Kar, S. K., Sharma, A., Roy, B. (2016). Solar energy market developments in India. Renewable and Sustainable Energy Reviews, 62, 121-133. https://doi.org/10.1016/j.rser.2016.04.043. [86] Ibid. [87] Rodgers, M., Olmsted, C. (2008). The Cape Wind Project in context. Leadership and Management in Engineering, 8(3), 102-112. https://doi.org/10.1061/(asce)1532-6748(2008)8:3(102). [88] Larson, M. J. (2011). Cape wind: Lessons from environment and energy conflict. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.1872859. [89] Leiren, M. D., Reimer, I. (2018). Historical institutionalist perspective on the shift from feed-in tariffs towards auctioning in German renewable energy policy. Energy Research & Social Science, 43, 33-40. https://doi.org/10.1016/j.erss.2018.05.022. [90] Saurer, J., Monast, J. (2020). Renewable energy federalism in Germany and the United States. Transnational Environmental Law, 1-28. https://doi.org/10.1017/s2047102520000345. [91] Schumacher, K. (2017). Large-scale renewable energy project barriers: Environmental impact assessment streamlining efforts in Japan and the EU. Environmental Impact Assessment Review, 65, 100-110. https://doi.org/10.1016/j.eiar.2017.05.001. [92] Nordensvärd, J., Urban, F. (2015). The stuttering energy transition in Germany: Wind energy policy and feed-in tariff lock-in. Energy Policy, 82, 156-165. https://doi.org/10.1016/j.enpol.2015.03.009. [93] Haas, T., Sander, H. (2016). Shortcomings and perspectives of the German Energiewende. Socialism and Democracy, 30(2), 121-143. https://doi.org/10.1080/08854300.2016.1183996. [94] Goyal, M., Jha, R. (2009). Introduction of Renewable Energy Certificate in the Indian scenario. Renewable and Sustainable Energy Reviews, 13(6–7), 1395-1405. https://doi.org/10.1016/j.rser.2008.09.018. [95] Picardi, B. (2016). Renewable energy and policy mechanisms: A case study of renewable energy certificates in India. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.2778629. [96] Sakti, A., Botterud, A., O’Sullivan, F. (2018). Review of wholesale markets and regulations for advanced energy storage services in the United States: Current status and path forward. Energy Policy, 120, 569-579. https://doi.org/10.1016/j.enpol.2018.06.001. [97] Kilinc-Ata, N. (2016). The evaluation of renewable energy policies across EU countries and US states: An econometric approach. Energy for Sustainable Development, 31, 83-90. https://doi.org/10.1016/j.esd.2015.12.006. [98] Salvador, S., Gimeno, L., Sanz Larruga, F. J. (2018). The influence of regulatory framework on environmental impact assessment in the development of offshore wind farms in Spain: Issues, challenges and solutions. Ocean & Coastal Management, 161, 165-176. https://doi.org/10.1016/j.ocecoaman.2018.05.010. [99] Rodgers, M., Olmsted, C. (2008). The Cape Wind Project in context. Leadership and Management in Engineering, 8(3), 102-112. https://doi.org/10.1061/(asce)1532-6748(2008)8:3(102). [100] Sakti, A., Botterud, A., O’Sullivan, F. (2018). Review of wholesale markets and regulations for advanced energy storage services in the United States: Current status and path forward. Energy Policy, 120, 569-579. https://doi.org/10.1016/j.enpol.2018.06.001. [101] Agha, M., Lovich, J. E., Ennen, J. R., Todd, B. D. (2020). 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The stuttering energy transition in Germany: Wind energy policy and feed-in tariff lock-in. Energy Policy, 82, 156-165. https://doi.org/10.1016/j.enpol.2015.03.009. [106] Schumacher, K. (2017). Large-scale renewable energy project barriers: Environmental impact assessment streamlining efforts in Japan and the EU. Environmental Impact Assessment Review, 65, 100-110. https://doi.org/10.1016/j.eiar.2017.05.001.
Mediation Equity Model: Legal Framework for Strengthening Mediation Institutions as an Alternative Dispute Resolution in Indonesia’s Tourism Sector
The relationship between employers and workers in the context of industrial relations in Indonesia’s tourism sector is often vulnerable to disputes. This sector, as one of the pillars of the national economy, faces complex interests between workers who seek to protect their rights and employers who focus on maximizing profits. With the increasing development of the tourism sector post-pandemic, issues such as layoffs and dissatisfaction with working conditions are becoming more prominent. These disputes have become urgent issues, especially considering the tourism sector’s characteristics that are susceptible to economic fluctuations. The dispute resolution process through bipartite negotiations, as regulated in Law Number 2 of 2004, often encounters deadlocks, necessitating the need for tripartite mechanisms such as mediation as a non-litigation dispute resolution option. The characteristics of industrial relations mediation, although designed to seek solutions impartially, face various obstacles in their implementation, including a lack of skilled human resources and financial support. Through an in-depth study of the applicable regulations, existing mediation practices, and the challenges faced, this research proposes concrete steps to improve the effectiveness of mediation in resolving industrial relations disputes in the tourism sector. The results of this study are expected to contribute to the creation of a harmonious and sustainable industrial climate in Indonesia’s tourism sector. Keywords: Mediation equity model, dispute resolution, workers, employers, tourism sector. Introduction The relationship between employers and workers within the framework of industrial relations is one of the relationships prone to disputes.[1] The tourism sector in Indonesia, as one of the economic pillars, is an economic sector with characteristics that make it susceptible to industrial relations disputes between workers and employers. This is due to the complexity of the relationship, which involves differing interests between the two parties. Workers often seek protection of their rights, while employers strive to maximize profits in a competitive and dynamic business context. With the increasing demand for tourism post-pandemic, these disputes are becoming more apparent, especially concerning issues such as termination of employment (TOE) and dissatisfaction with working conditions.[2] Industrial relations disputes in the tourism sector are becoming an increasingly pressing issue to address, given the sector’s vulnerability to economic fluctuations and job uncertainty. The tourism sector, which encompasses various industries such as hotels, restaurants, and transportation, often faces challenges in maintaining harmonious relations between workers and employers. Worker dissatisfaction with working conditions, wages, and minimal legal protection can trigger disputes that potentially disrupt company operations and harm all parties involved. Along with the development of the business world closely linked to the tourism sector, it is crucial to have an effective and efficient dispute resolution mechanism. With a good dispute resolution mechanism in place, industry players can focus more on improving the quality of their services.[3] In the context of industrial relations dispute resolution, in every industrial relations dispute, the prevailing laws and regulations mandate that the worker/laborer or the labor union/worker union and the employer must first attempt to resolve the issue through bipartite negotiation, as stipulated in Articles 6 and 7 of Law Number 2 of 2004 concerning the Settlement of Industrial Relations Disputes (UU PPHI)[4]. This process aims to reach a mutually beneficial agreement, where both parties can convey their interests and expectations before moving to the next stages of dispute resolution. However, resolving industrial relations disputes through this bipartite mechanism often reaches a deadlock, where both parties fail to achieve the desired agreement. When bipartite negotiations between the worker and the employer do not reach an agreement, proven by a final report stating that the bipartite negotiation has failed, the parties can then resolve their dispute through tripartite mechanisms such as mediation, conciliation, or arbitration, as regulated in Articles 8 to 54 of the UU PPHI, which can be an option in dispute resolution aimed at providing a fair solution for all parties involved.[5] Mediation, as one of the dispute resolution methods, is a negotiation that has a unique characteristic because it involves a neutral mediator from a government agency.[6] The resolution of disputes through mediation is carried out by a mediator located in every office of the agency responsible for manpower affairs at the Regency/City level. This mediation process is designed to broker the conflict and seek a joint solution without siding with either party. Although mediation is expected to reduce tension, there are still weaknesses in the institutional arrangement and the implementation of mediation itself. Many obstacles arise in the implementation of mediation, including a lack of skilled human resources and adequate financial support to optimally run the process. Previous research by the author titled “Mediation Equity Model: Legal Framework for Strengthening Mediation Institutions as an Alternative Dispute Resolution in Indonesia’s Tourism Sector”, which took the tourism area of Mandalika, West Nusa Tenggara as its research location, showed that various weaknesses and constraints still exist in the implementation of Industrial Relations Mediation as a choice for resolving disputes between workers and employers in the tourism sector. There is similar previous research that has been conducted on the topic of industrial relations mediation, which includes: “Paradigmatic Problems of Industrial Relation Dispute Settlement on the Perspective of Pancasila Industrial Relations”, by Aries Harianto[7] - Journal of Law and Legal Reform, Year 2024; “Konsep Penyelesaian Perselisihan Hubungan Industrial Antara Serikat Pekerja Dengan Perusahaan Melalui Combined Process (Med-Arbitrase)” (The Concept of Industrial Relations Dispute Settlement Between Labor Unions and Companies Through a Combined Process (Med-Arbitration), by Rai Mantili - Jurnal Bina Mulia Hukum, Year 2021;[8] “Peran Dinas Tenaga Kerja dalam Proes Mediasi Penyelesaian Permasalahan Hubungan Industrial” (The Role of the Manpower Office in the Mediation Process for Resolving Industrial Relations Issues), by FA Dermawan, B Sarnawa - Media of Law and Sharia, Year 2021[9]; “Reformasi Hukum Dan Hak Asasi Manusia Dalam Penyelesaian Perselisihan Hubungan Industrial” (Legal and Human Rights Reform in the Settlement of Industrial Relations Disputes), by H Arsalan, DS Putri - Jurnal HAM, Year 2020;[10] The above-mentioned studies generally aim to dissect the resolution of industrial relations disputes, mediation specifically, and the development of mediation as a mechanism for resolving industrial relations disputes. This research offers novelty compared to previous studies because it focuses on the tourism sector, adapting to the dominant characteristics of disputes that occur in this sector. Furthermore, this study also attempts to map the normative weaknesses of mediation regulation, referring to the existing Industrial Relations Dispute Settlement Law (UU PPHI) and related regulations, as well as mapping the empirical constraints of mediation implementation, by conducting field research in Indonesia’s tourism hubs, based on the existing conditions on the ground. This subsequently serves as the basis for formulating a strengthened mediation as an effective and efficient non-litigation option for resolving disputes in the tourism sector in the future. Although industrial relations mediation in Indonesia has been widely discussed academically, existing studies have mostly focused on the manufacturing, plantation, or general labor sectors. This study specifically examines the effectiveness and institutional challenges of mediation in the tourism industry. This sector is characterized by seasonal workers, informal work arrangements, and vulnerability to economic shocks, which still have limitations. In addition, empirical studies that integrate the normative framework of the Industrial Relations Dispute Resolution Law with the reality on the ground in tourism centers such as Bali, Mandalika, and Lombok are still rare. This indicates a significant research gap, a need to understand the extent to which the current mediation framework functions in resolving disputes in the tourism sector, and to identify the legal and institutional reforms needed to improve its effectiveness. Therefore, given the lack of effectiveness in the implementation of a norm concerning the effectiveness of industrial relations dispute settlement in the tourism sector, it is necessary to formulate an institutional strengthening of mediation to enhance the effectiveness of industrial relations dispute settlement in the tourism sector. This research includes 3 problem formulations, which are: What are the characteristics of the Industrial Relations Disputes currently occurring in the Tourism Sector? Is the current Institutional Arrangement for Industrial Relations Mediation, which refers to the Industrial Relations Dispute Settlement Law (UU PPHI), representative enough to be used as an option for resolving industrial relations disputes in the Tourism Sector? What is the formulation for Institutional Strengthening of Mediation as an effective Non-Litigation Option for Resolving Industrial Relations Disputes in the Tourism Sector? Methodology This research adopts a normative legal study approach, supplemented by field research (empirical) to produce a comprehensive analysis. The normative design focuses on literature review, utilizing the conceptual approach and the statutory approach to identify the normative weaknesses of industrial relations mediation regulations, particularly in Law Number 2 of 2004 concerning the Settlement of Industrial Relations Disputes (UU PPHI) and related implementing regulations. The primary data for this section consists of statutory regulations, supported by secondary data such as legal literature, journals, and court decisions. Meanwhile, the empirical design uses a factual approach through field research aimed at mapping the obstacles and implementation practices of mediation on the ground. Primary empirical data is collected through in-depth interviews. The location for the field research is focused on Indonesia’s tourism hubs, taking case studies in the Manpower and Transmigration Office of West Nusa Tenggara Province and the Manpower Office of Bali Province, chosen due to the high volume of industrial relations dispute cases in the tourism sector. Primary data collection is conducted through structured interviews with a total of 6 (six) respondents divided into three categories: 2 Industrial Relations Mediators (1 from each Office), 2 Representatives of Trade/Labor Unions (actively handling Termination of Employment and Rights Disputes in the hotel/tourism sector), and 2 Representatives of Employers (HRD/Legal) from tourism companies (5-star hotels) that have undergone the mediation process. This data collection is scheduled to be phased between June and September 2024. The collected data from both approaches will then be analyzed qualitatively, presented in a descriptive-analytical form, with the final goal of formulating a Mediation Institution Reinforcement Model (Mediation Equity Model) as an effective and efficient non-litigation dispute resolution option in the tourism sector. 1.Characteristics of Industrial Relations Disputes in the Tourism Sector Initially, the relationship between employees and employers was purely civil in nature. However, due to the existence of a superior-subordinate relationship or a power dynamic, it became highly vulnerable to exploitation, regardless of its form. Given this condition, the state needs to be present in resolving the disputes that occur in the employment relationship through the dispute resolution mechanism regulated in the Industrial Relations Dispute Settlement Law (UU PPHI). The relationship between employees and employers is a power relationship because there is one who holds power (the employer) and one who is subjected to it (the employee). The disparity in industrial society resulting from the unequal relationship between the bourgeoisie and the proletariat leads to industrial conflict. Furthermore, industrial relations are closely tied to the interests of both employees and employers, which consequently creates the potential for disagreements and even disputes between the two parties.[11] In an industrial relations dispute, there are three main parties involved in the scope of resolution: the employees (labor union), the employer, and the government. Industrial relations disputes can manifest in various forms, which are then categorized into several classifications of disputes within the Industrial Relations Dispute Settlement Law (UU PPHI). In general, the provision of Article 1 point 1 of the Industrial Relations Dispute Settlement Law (UU PPHI) defines an industrial relations dispute as: Differences of opinion resulting in conflict between the employer or association of employers and the employee/worker or labor union/trade union due to a dispute of rights, dispute of interest, dispute over termination of employment, and a dispute between labor unions/trade unions within the same company. The types of disputes referred to are regulated in Article 2 of the Industrial Relations Dispute Settlement Law (UU PPHI), which includes, but is not limited to: Dispute of Rights (Perselisihan Hak): “A dispute arising from the non-fulfillment of rights, resulting from differences in the implementation or interpretation of the provisions of laws and regulations, employment agreements (work contracts), company regulations, or collective labor agreements” (Article 1, point 2). Dispute of Interest (Perselisihan Kepentingan): “A dispute arising in the employment relationship due to a lack of consensus regarding the creation, and/or amendment of working conditions stipulated in the employment agreement, company regulations, or collective labor agreement” (Article 1, point 3). Dispute over Termination of Employment (Perselisihan Pemutusan Hubungan Kerja - PHK): “A dispute arising from a lack of consensus regarding the termination of the employment relationship by one of the parties” (Article 1, point 4). Dispute Between Labor Unions/Trade Unions Within One Company (Perselisihan antar serikat pekerja/serikat buruh dalam satu perusahaan): “A dispute between a labor union/trade union and another labor union/trade union within only one company, due to a lack of consensus concerning membership, the exercise of rights, and trade union obligations” (Article 1, point 5). In a practical context, referring to the field research conducted, especially in the tourism sector, a phenomenon was also found where industrial relations disputes within the tourism context are dominated by disputes over Termination of Employment and Disputes of Rights. This aligns with the conceptual definition of these two types of disputes, which emphasize the non-fulfillment of rights that should be obtained by the employees as regulated in the laws and regulations and the autonomous rules applicable within the company (Employment Agreements, Company Regulations, Collective Labor Agreements) for disputes of rights. Furthermore, there is a rampant condition of termination of employment based on various disputed reasons/grounds, as well as the fulfillment of severance pay and other economic rights following the termination of employment at the company. This phenomenon is supported by data indicating that, nationally, based on a survey conducted by the Ministry of Manpower of the Republic of Indonesia in 2020 (during the pandemic period), approximately 88% of companies were impacted, resulting in losses to company operations.[12] The tourism sector, with its characteristic high sensitivity to market changes and crises, serves as a clear example of the high number of Termination of Employment (PHK) and Rights disputes. The survey from the Indonesian Ministry of Manpower in the same year, which indicated 88% of companies were impacted by the pandemic, is directly reflected in this sector. Many hotels, restaurants, and travel agencies were compelled to implement efficiency measures, often resulting in mass layoffs. This situation was also evident in subsequent years, consistently showing a trend where PHK disputes remain the most dominant type of dispute in the tourism sector, followed by Rights disputes, which have an overlapping character. On the other hand, the general labor condition in Indonesia, referencing data reports from the Ministry of Manpower of the Republic of Indonesia, also shows a similar situation, where there were 7,566 industrial relations dispute cases throughout 2024, dominated by Termination of Employment (PHK) disputes as the most frequently reported type, totaling 5,192 cases.[13] The phenomenon of the high number of disputes is closely related to the need for effective, efficient, and fair industrial relations dispute resolution mechanisms for the parties involved. These disputes must go through the settlement mechanism regulated in the Industrial Relations Dispute Settlement Law (UU PPHI). Its success, therefore, becomes one of the proving grounds for the dispute resolution mechanism set out in the UU PPHI, particularly at the stage of bipartite negotiation, the tripartite mechanism, or through resolution via the Industrial Relations Court. The high number of Termination of Employment (PHK) disputes, reaching 5,192 cases in 2024, proves that the PHK process does not always run smoothly. Even though companies often claim PHK is carried out for efficiency, workers’ rights, such as severance pay, long service award pay, and compensation for rights, are frequently not fulfilled in accordance with the Labor Law and its derivative regulations. Aside from PHK, Disputes of Rights are also a major problem, with 2,033 cases in 2024. These include disputes related to unpaid overtime wages, allowances, or bonuses not provided as stipulated. In the context of tourism, where working hours are often irregular and dependent on seasons, these kinds of disputes are very common. On the other hand, it was also found that the number of disputes that were submitted to and resolved by the Industrial Relations Court over the past five (5) years is still considered high. This indirectly indicates that there are still various weaknesses in the current non-litigation mechanisms for resolving industrial relations disputes in Indonesia. The table above shows data on the number of disputes submitted to (up to the point of decision) the Industrial Relations Court in 2020, reaching 1,231 cases,[14] in 2021, it reached 1,114 cases,[15] and in 2022, it experienced a surge, reaching 1,478 cases.[16] Meanwhile, in 2023, 1,255 cases were recorded as resolved at the Industrial Relations Court.[17] Meanwhile, in 2024, a total of 876 cases were recorded.[18] His situation indicates that resolution through non-litigation channels, including mediation, still harbors various issues that make it difficult to maximize its potential as a preliminary dispute resolution mechanism at the company level. Based on the description above, and concerning the existing characteristics of industrial relations in Indonesia, the analysis of data and field research indicates that Termination of Employment (PHK) Disputes and Rights Disputes are the two types of disputes that currently dominate industrial relations conflict in Indonesia. A similar condition is observed in the tourism sector, which is also predominantly affected by the same types of disputes. The overlapping nature of these two dispute types, combined with the highly dynamic Indonesian labor environment where the regulatory standing of the parties (employees and employers) remains unequal, implies a potential increase in both the quantity and complexity (quality) of disputes, including those in the tourism sector as a continuously growing part of the business world. 2.Institutional Regulation of Industrial Relations Mediation: The Perspective of the UU PPHI The Industrial Relations Dispute Settlement Law (UU PPHI), as the formal law for industrial dispute resolution, stipulates that if bipartite negotiation fails, one or both parties must register the dispute with the local agency responsible for manpower/labor affairs, attaching proof that attempts at resolution through bipartite negotiation have been made. After receiving the registration from one or both parties, the local labor agency is obligated to offer the parties the option to agree on a resolution through conciliation or arbitration. If the parties fail to make a choice for resolution through conciliation or arbitration within 7 (seven) working days, the labor agency shall delegate the dispute resolution to a mediator, covering all four types of disputes. The three stages mentioned above are in accordance with the provisions of Article 6, paragraph (1) of Law No. 30 of 1999 concerning Arbitration and Alternative Dispute Resolution (UU ADR)[19], which stipulates that civil disputes or differences of opinion may be resolved by the parties through alternative dispute resolution based on good faith.[20] In the industrial relations dispute settlement system, these stages are known as the tripartite mechanism, involving a third party outside of the disputing parties. This tripartite resolution mechanism constitutes the structure of the Indonesian labor system, involving the government or a third party that is required to be protective and supportive.[21] This is crucial because the parties in these industrial relations disputes have unequal positions: the employee is identified with a weak position, while the employer is identified with a stronger social and economic position, with the worker depending on the employer for income to meet their living needs.[22] This situation is thus philosophically intended to be safeguarded by the characteristic presence of a third party in dispute resolution through the tripartite mechanism. The Tripartite Mechanism under the Industrial Relations Dispute Settlement Law (UU PPHI) is regulated in several related provisions, including: Resolution through Mediation (Articles 8 to 16), Resolution through Conciliation (Articles 17 to 28), and Resolution through Arbitration (Articles 29 to 54). In addition to the UU PPHI, the tripartite mechanism via mediation is specifically regulated through Minister of Manpower and Transmigration Regulation No. 17 of 2014 concerning the Appointment and Dismissal of Industrial Relations Mediators and Mediation Procedures.[23] The tripartite mechanism via conciliation is specifically regulated through the Minister of Manpower and Transmigration Regulation No. PER.10/MEN/V/2005 concerning the Appointment and Dismissal of Conciliators and Conciliation Procedures.[24] The following section will outline some of the weaknesses in the current industrial relations dispute settlement regulations applicable in Indonesia, referencing the UU PPHI and its related implementing regulations. This discussion will specifically focus on the mediation mechanism as the second (subsequent) stage that the parties may pursue in an industrial relations dispute after bipartite negotiation has been declared a failure. a)Definition (Meaning) of Industrial Relations Mediation Article 1 point 11 of the Industrial Relations Dispute Settlement Law (UU PPHI) stipulates that Industrial Relations Mediation, hereinafter referred to as mediation, is the resolution of disputes of rights, disputes of interest, disputes over termination of employment, and disputes between labor unions/trade unions within only one company through deliberation facilitated by one or more neutral mediators. Furthermore, Article 1 point 12 of the UU PPHI stipulates that an Industrial Relations Mediator, hereinafter referred to as the mediator, is a government employee of the agency responsible for manpower/labor affairs who meets the requirements to be a mediator established by the Minister, whose duty is to conduct mediation and has the obligation to provide a written recommendation to the disputing parties to resolve disputes of rights, disputes of interest, disputes over termination of employment, and disputes between labor unions/trade unions within only one company. Based on these regulations, the operational definition of mediation and industrial relations mediators in the UU PPHI emphasizes the resolution of disputes through deliberation facilitated by a neutral third party who must be a government employee in the field of manpower, meets the mediator’s requirements, and has the obligation to provide a written recommendation to the disputing parties. The emphasis on the mediator being (limited to) a government employee in the manpower sector and their obligation to provide a written recommendation without strong binding power results in the institutional role of the mediator being weakened. b)The Status of the Recommendation in Industrial Relations Mediation Referring to the provisions of Article 13 of the Industrial Relations Dispute Settlement Law (UU PPHI), it is stipulated that: If a settlement agreement for the industrial relations dispute is not reached through mediation, then: The mediator issues a written recommendation; The written recommendation referred to in letter a must be submitted to the parties within a maximum period of 10 (ten) working days from the first mediation session; The parties must have provided a written response to the mediator, stating whether they agree or reject the written recommendation, within a maximum period of 10 (ten) working days after receiving the written recommendation; The party that does not provide its opinion, as referred to in letter c, is deemed to reject the written recommendation; if the parties agree to the written recommendation as referred to in letter a, then within a maximum period of 3 (three) working days from the date the written recommendation is agreed upon, the mediator must have finished assisting the parties in drafting a Joint Agreement (Perjanjian Bersama) to be subsequently registered at the Industrial Relations Court within the District Court in the jurisdiction where the parties entered into the Joint Agreement, to obtain a certificate of registration. Furthermore, Article 14 paragraph (1) of the UU PPHI stipulates that: “If the written recommendation as referred to in Article 13 paragraph (2) letter a is rejected by one or both parties, then the parties or one of the parties may continue the dispute resolution to the local Industrial Relations Court at the District Court”. The regulation concerning the mediator’s obligation to issue a written recommendation when no agreement is reached, without being accompanied by a regulation regarding the binding power of the recommendation, results in the parties (especially the party in the strong position) treating/using the recommendation merely as a formality so that the dispute resolution can then be escalated to the Industrial Relations Court. The party in the weak position (the employee) is disadvantaged both technically and in terms of the increasingly lengthy time required for dispute resolution. c)Regulation of Mediator Duties Based on the provisions of Article 6 of Minister of Manpower and Transmigration Regulation No. 17 of 2014 (Permenakertrans No. 17/2014), the Mediator is tasked with: Fostering industrial relations; Developing industrial relations; and Settling Industrial Relations Disputes out of court. In carrying out their duties, especially in the out-of-court settlement of industrial relations disputes through mediation, cooperation with the Labor Inspector (Pengawas Ketenagakerjaan) is highly necessary, so the institutional relationship between the mediator and the labor inspector in dispute resolution needs to be strengthened (not limited to mere coordination). d)Regulation of Mediator Obligations Based on the provisions of Article 8 of Permenakertrans No. 17/2014, the Mediator has the following obligations in resolving Industrial Relations Disputes: To request the parties to negotiate before the Mediation process is carried out To summon the disputing parties: To lead and regulate the course of the Mediation session; To assist the parties in drafting a Joint Agreement, if an agreement is reached; To issue a written recommendation, if an agreement is not reached; To create minutes of the Industrial Relations Dispute settlement; To maintain the confidentiality of all information obtained; To prepare a report on the results of the Industrial Relations Dispute settlement to the Director General or the Head of the Provincial Agency, or the Head of the relevant Regency/City Agency; and To record the results of the Industrial Relations Dispute settlement in the Industrial Relations Dispute registration book. Regarding the mediator’s obligations, reinforcement is needed so that the mediator is obliged to facilitate and encourage the Parties to explore and uncover their interests, seek the best settlement options for the Parties, and work together to settle. e)Regulation of Mediator Posts and Jurisdiction Based on the provisions of Article 11 of Minister of Manpower and Transmigration Regulation No. 17 of 2014 (Permenakertrans No. 17/2014), the Mediator is posted at the: a. Ministry; b. Provincial Agency (Dinas Provinsi); c. Regency/City Agency (Dinas Kabupaten/Kota). Furthermore, Article 12 of Permenakertrans No. 17/2014 stipulates that: (1) The Mediator posted at the Ministry, as referred to in Article 11 letter a, is authorized to: a. Conduct Mediation for Industrial Relations Disputes that occur in more than 1 (one) provincial territory; and b. Provide technical assistance, supervision, and monitoring of Industrial Relations Dispute settlement carried out by Mediators at the Provincial Agency and/or Regency/City Agency. (2) The Mediator posted at the Provincial Agency, as referred to in Article 11 letter b, is authorized to: a. Conduct Mediation for Industrial Relations Disputes that occur in more than 1 (one) regency/city within 1 (one) province; b. Conduct Mediation for Industrial Relations Disputes delegated by the Ministry or Regency/City Agency; c. Conduct Mediation for Industrial Relations Disputes at the request of a Regency/City Agency that does not have a Mediator; and d. Provide technical assistance, supervision, and monitoring of Industrial Relations Dispute settlement carried out by Mediators at the Regency/City Agency. (3) The Mediator posted at the Regency/City Agency, as referred to in Article 11 letter c, is authorized to: a. Conduct Mediation for Industrial Relations Disputes that occur in the relevant regency/city; b. Conduct Mediation for Industrial Relations Disputes delegated by the Ministry or Provincial Agency. The regulation regarding the placement of mediators at the Ministry, Provincial Agency, and Regency/City Agency, each with its respective authority, without regulating the proportional number of mediators in each region (regency), implies difficulties for employees when a dispute occurs. This is particularly true when a Regency/City Agency does not have a mediator, leading to the case being transferred to the Provincial Agency (where the provincial capital may be far from the regency/city where the dispute occurred). These various regulations indicate that there are weak points in the institutional and procedural formulation of industrial relations mediation as one of the resolution options between employees and employers, in reference to the currently applicable UU PPHI as the formal law. 3.Legal Framework for Strengthening Institutional Mediation in Industrial Relations Dispute Settlement in the Tourism Sector in the Future Based on the discussion in the previous sub-chapter, there are various regulatory weaknesses that consequently imply an imbalance in the position of the parties, particularly for workers, which this study attempts to counterbalance through the Tripartite Equity Model, a component of the IRS Equity Model. The following is an elaboration of the formulation of the principle of balance in regulating the position of the parties, particularly the worker, in the tripartite mechanism, as formulated through the Tripartite Equity Model. The following describes several forms of strengthening that can be carried out on mediation institutions with a focus on efforts to provide dispute resolution mechanisms that are able to place both workers and employers in a balanced position. The forms of strengthening mediation institutions referred to include the following: a)Regulation Regarding The Good Faith of the Parties in Mediation Implementation Based on the analysis of industrial relations cases and supported by empirical research, the weakness in regulating the mediation stage within the tripartite industrial relations dispute settlement mechanism lies in the lack of good faith from the parties, especially the party with the dominant position, in maximizing mediation as a dispute settlement mechanism. This consequently implies the difficulty of mediation being implemented in accordance with the procedures and provisions regulated in the legislation. Conceptually, mediation is a “good faith” procedure where the disputing parties submit suggestions on how the mediator can resolve the dispute, since they are unable to do so themselves.[25] In contract law, good faith emphasizes honesty in achieving a common goal, which must be upheld by the parties.[26] The UU PPHI does not specifically regulate the absence of parties and the legal consequences if a party fails to act in good faith during mediation. However, Article 13 paragraph (1) point b of Permenakertrans 17 of 2014 regulates the mediator’s work procedures, one of which is: preparing a written summons for the parties to attend, with due consideration of the timing, so that the Mediation session can be held no later than 7 (seven) working days from receiving the delegation of duties to settle the dispute. Furthermore, paragraph (3) stipulates that if the applicant party that registered the dispute fails to attend after being duly and properly summoned 3 (three) times, the Industrial Relations Dispute registration shall be deleted from the dispute registration book. Paragraph (4) stipulates that if the respondent party fails to attend after being duly and properly summoned 3 (three) times, the Mediator shall issue a written recommendation based on the existing data. This condition creates the potential for the party in the stronger position (the company), with unlimited access to capital and resources, to ignore this stage due to weak regulation or to treat it merely as a formality to be completed before the dispute is eventually channeled for resolution through the Industrial Relations Court. Based on these conditions, it is crucial to regulate the good faith of the parties in carrying out mediation and the legal consequences if the parties fail to act in good faith during mediation. This will strengthen the position of the worker, as the weaker party, when settlement through mediation is chosen after the failure of bipartite negotiation. Based on this, a regulatory formulation regarding the good faith of the parties in the UU PPHI is needed, which minimally regulates: The Parties and/or their legal representatives are obliged to pursue mediation with good faith; Matters that can be declared as lack of good faith by the parties or one of the parties in the implementation of mediation; and the legal consequences if the parties or one of the parties fails to act in good faith in the implementation of mediation. In the context of the absence of one party in the mediation process, it is important to note that the information provided by the party that attends in good faith becomes information deemed correct by the mediator and is placed as a determining element in drafting the mediator’s recommendation. Regulating the good faith of the parties in the implementation of mediation will imply institutional strengthening in the regulation of industrial relations mediation. By regulating the good faith of the parties in mediation, it is expected to be able to balance the positions of the parties and prevent certain conditions, such as negligence or the perception of formality, which were previously potentially exploited by the party in the stronger position. b)Strengthening the Status of The Industrial Relations Mediator’s Recommendation Article 13 paragraph (2) of the UU PPHI stipulates that if an agreement for the settlement of the industrial relations dispute is not reached through mediation, then: a. The mediator shall issue a written recommendation; b. The written recommendation referred to in letter a must be delivered to the parties no later than 10 (ten) working days from the first mediation session; c. The parties must provide a written response to the mediator, stating whether they agree or reject the written recommendation, no later than 10 (ten) working days after receiving the written recommendation; d. The party that does not provide its opinion as referred to in letter c shall be deemed to reject the written recommendation; e. If the parties agree to the written recommendation referred to in letter a, then no later than 3 (three) working days from the date the written recommendation is approved, the mediator must complete assisting the parties in creating a Joint Agreement, which is then registered at the Industrial Relations Court within the District Court in the legal area where the parties executed the Joint Agreement, to obtain a certificate of registration. Furthermore, Article 14 paragraph (1) of the UU PPHI stipulates that: “if the written recommendation referred to in Article 13 paragraph (2) letter a is rejected by one or both parties, then the parties or one of the parties may continue the dispute settlement to the Industrial Relations Court within the local District Court”. The regulation in Article 13 paragraph (2) of the UU PPHI was subsequently deemed not to provide legal certainty, leading to a judicial review by five workers before the Constitutional Court. The Constitutional Court (MK), in its Decision Number 68/PUU-XIII/2015[27], granted the judicial review of Law Number 2 of 2004 concerning the Industrial Relations Dispute Settlement (UU PPHI). The decision mandates that mediators assisting in industrial relations dispute settlement must issue a record of the mediation results (risalah hasil mediasi). According to the Constitutional Court, Article 13 paragraph (2) letter a of the UU PPHI does not provide legal certainty. “The article a quo does not provide fair legal guarantee, protection, and certainty, as well as equal treatment before the law for the Applicants as guaranteed in Article 28D paragraph (1) of the 1945 Constitution”.[28] Therefore, the phrase “written recommendation” in Article 13 paragraph (2) letter a of the UU PPHI is contradictory to the 1945 Constitution, unless interpreted as: “if an agreement for the settlement of the industrial relations dispute is not reached through mediation, the mediator shall issue a written recommendation in the form of a record of settlement through mediation”. Based on the description above, the issue of legal uncertainty regarding the phrase “written recommendation” in the UU PPHI has been clarified through the Constitutional Court Decision, providing a clearer meaning related to the fulfillment of the formal requirements for filing a lawsuit to the Industrial Relations Court, namely by including the written recommendation in the form of a mediation record. Indirectly, this change in terminology has two different functions: on one hand, it serves as a formal requirement for filing a lawsuit in the Industrial Relations Court, and on the other hand, it can be utilized to institutionally strengthen the status of the mediation results. Based on the description above, the issue of legal uncertainty regarding the phrase “written recommendation” in the UU PPHI has been clarified through the Constitutional Court Decision, providing a clearer meaning related to the fulfillment of the formal requirements for filing a lawsuit to the Industrial Relations Court, namely by including the written recommendation in the form of a mediation record. Indirectly, this change in terminology has two different functions: on one hand, it serves as a formal requirement for filing a lawsuit in the Industrial Relations Court, and on the other hand, it can be utilized to institutionally strengthen the status of the mediation results. If analyzed more deeply, the regulation of the legal status of the recommendation as a product of mediation still shows a weakness when one party refuses to implement it. The party in the stronger position tends not to follow the recommendation or even treats it as a formality requirement to be met before taking the dispute to the Industrial Relations Court (PHI). Therefore, it is necessary to strengthen the regulation of this product of mediation (recommendation), especially when mediation fails, and the parties reject the mediator’s recommendation. The clarification of the recommendation’s terminology in the form of a mediation record as a requirement for fulfilling formal prerequisites, as stipulated in the Constitutional Court Decision, can be utilized institutionally to strengthen the status of the mediator’s recommendation in industrial relations dispute settlement. The mediation record, which is a prerequisite under the UU PPHI for filing a lawsuit against the PHI, should not just be a formality (vide Article 14 paragraph (1) UU PPHI). It should be one of the factors considered by the judge in deciding the case. This is crucial because strengthening the regulation regarding the legal status of the written recommendation in the form of a record will institutionally strengthen the dispute settlement process. Through this regulation, the disputing parties are expected to view the recommendation not merely as a prerequisite to proceed to court, but as a material element for the panel of judges to consider when the dispute enters the litigation stage. This is important because strengthening the regulations regarding the legal standing of written recommendations in the form of minutes in the settlement of industrial relations disputes through mediation will strengthen mediation as an institutional dispute resolution mechanism. The formulation in the PPHI Law, which stipulates that the minutes of mediation results from industrial relations mediators are one of the considerations of the panel of judges in making decisions, is one form of strengthening the standing of the results of settlements through mediation in the settlement of industrial relations disputes. Through this regulation, it is hoped that the disputing parties will consider recommendations in the form of mediation minutes not only as a formality for proceeding to court, but also become one of the considerations for the panel of judges in deciding when the dispute enters the litigation stage in the Industrial Relations Court. c)Strengthening Regulations Regarding Mediator Obligations Article 9 of Ministerial Regulation No.17 of 2014 stipulates that a Mediator in resolving Industrial Relations Disputes has the following obligations: Ketentuan Pasal 9 Permenakertrans 17 Tahun 2014 mengatur bahwa Mediator dalam menyelesaikan Perselisihan Hubungan Industrial mempunyai kewajiban: a. To request that the parties negotiate before the Mediation process is carried out; b. To summon the disputing parties; c. To lead and manage the Mediation session; d. To assist the parties in drafting a collective agreement, if an agreement is reached; e. To make written recommendations, if an agreement cannot be reached; f. To prepare minutes of the Industrial Relations Dispute resolution; g. To maintain the confidentiality of all information obtained; h. To report the results of the Industrial Relations Dispute resolution to the Director General or the Head of the Provincial Office, or the Head of the Regency/City Office concerned; and i. To record the results of the Industrial Relations Dispute resolution in the Industrial Relations Dispute registration book. The stipulations concerning the Mediator’s obligations in the Ministry of Manpower and Transmigration Regulation (Permenakertrans), as outlined above, require several regulatory enhancements in an effort to strengthen mediation (the position of the mediator) institutionally in the process of resolving industrial relations disputes. Enhancements to the regulation of obligations that can be implemented include: a. Clarifying the rights and obligations of the Parties in accordance with the prevailing laws and regulations; b. Tracing and exploring the interests of the Parties; and c. Seeking various best resolution options for the Parties; d. Facilitating and encouraging the Parties to cooperate in the dispute resolution. Based on the results of field research through interviews with industrial relations mediators, several forms of the above enhancements will open up opportunities for the mediator to be more active in facilitating the dispute resolution process between the parties (while maintaining neutrality), particularly in efforts to help the parties resolve their dispute by maximizing agreements that prioritize a win-win solution. d)Strengthening The Regulation Related to Mediator Authority Article 10 of Permenakertrans No. 17 of 2014 regulates the mediator’s authority, which includes: (1) The Mediator in resolving Industrial Relations Disputes has the authority to: a. Request the parties to provide verbal and written statements b. Request documents and letters related to the dispute from the parties; c. Present witnesses or expert witnesses in Mediation if necessary; d. Request necessary documents and letters from the Provincial Office or Regency/City Office, or related institutions; and e. Reject the power of attorney of the disputing parties if they do not possess a specific power of attorney. (2) In addition to the authorities referred to in paragraph (1), the Mediator is authorized to reject the parties and/or holders of the power of attorney if there is an indication of hindering the Mediation process. (3) The Mediator, before conducting the Mediation process, can invite the disputing parties for clarification of the problem or Industrial Relations Dispute faced by the parties. (4) The clarification, as referred to in paragraph (3) is carried out to obtain information and/or complete dispute data from the parties, the results of which are recorded in the clarification minutes. The regulation of the Mediator’s authority as stipulated above still provides an opening for the parties, especially the employers, to leverage their strong position when participating in mediation as a dispute resolution option. There is a need for regulation concerning the mediator’s authority to determine that a party or one of the parties is not acting in good faith in the implementation of mediation, along with the legal consequences that arise when the parties or one of the parties lacks good faith. Furthermore, based on several current field conditions, it is also important to strengthen the regulation regarding the mediator’s authority to directly request documents from the company, along with the legal consequences for companies that are unwilling to submit data or documents related to the dispute, as well as the regulation of the mediator’s authority to be able to collaborate with other related industrial relations institutions in the context of resolving the dispute. e)Regulation of The Position and Availability of Industrial Relations Mediators in the Nearest Company Territory Article 11 of Permenakertrans No. 17 of 2014 stipulates that the Mediator is located at: a. The Ministry; b. The Provincial Office; c. The Regency/City Office. Article 12 of the Permenakertrans then regulates that: (1) A Mediator located at the Ministry, as referred to in Article 11 letter a, is authorized to: a. Conduct Mediation for Industrial Relations Disputes occurring in more than 1 (one) provincial area; and b. Provide technical assistance, supervision, and monitoring of the resolution of Industrial Relations Disputes carried out by Mediators at the Provincial Office and/or Regency/City Office. (2) The mediator located at the Provincial Office as referred to in Article 11 letter b, is authorized to: a. Conduct Mediation for Industrial Relations Disputes occurring in more than 1 (one) regency/city within 1 (one) province; b. Mediation for Industrial Relations Disputes upon delegation from the Ministry or the Regency/City Office; c. Conduct Mediation for Industrial Relations Disputes upon request from a Regency/City Office that does not have a Mediator; and d. Provide technical assistance, supervision, and monitoring of the resolution of Industrial Relations Disputes carried out by Mediators at the Regency/City Office. (3) A Mediator located at the Regency/City Office, as referred to in Article 11 letter c, is authorized to: a. Conduct Mediation for Industrial Relations Disputes occurring in the relevant regency/city; b. Conduct Mediation for Industrial Relations Disputes upon delegation from the Ministry or the Provincial Office. The regulation of the mediator’s position at the Ministry, Provincial Office, and Regency/City Office, each with their respective authorities, without regulating the proportionate number of mediators in each region (regency) has implications for difficulties for the worker when a dispute occurs, especially when the Regency/City Office does not have a mediator, thus delegating the case to the Province (the provincial capital is far from the regency/city where the dispute occurred). This needs to be addressed through strengthening the institutionalization of industrial relations mediation, particularly concerning the regulation of the proportionate number of mediators at the Regency/City Office, Provincial Office, and Ministry. This regulation plays an important role in ensuring the availability of mediators in every regency/city so that the parties, especially workers who are generally economically weak, can be helped by the availability of a mediator in the nearest company area, making it more effective and efficient in terms of cost, energy, and time. f)Regulation of Professional Mediators and Independent Mediation Institutions In other countries, mediation remains the preferred method of resolution. Similar to Indonesia, which mandates mediation as a compulsory resolution method, other countries like the United States and Singapore also do the same. However, these two countries offer the availability of professional mediators and independent mediation institutions. This is done to add a variety of options so that both workers and employers can choose according to their needs. In Singapore, for instance, mediators are usually provided by the Minister of Manpower with the assurance that these individuals are long-experienced and neutral. The same applies to the United States with its Federal Mediation and Conciliation Service, which provides similar services. In Indonesia, this ought to be emulated to encourage the trust of the disputing parties in utilizing mediation and avoiding the fairly lengthy litigation process. Based on the description above, it can be seen that the institutional strengthening of mediation as one of the options for resolving industrial relations disputes in the tripartite mechanism can be achieved by strengthening the regulation related to the good faith of the parties in the execution of mediation, strengthening the regulation related to the mediator’s recommendation, strengthening the regulation related to the mediator’s obligations and authority, strengthening the regulation related to the position and availability of mediators in the nearest company territory, the regulation of professional mediators, and the regulation of independent mediation institutions. Strengthening the mediation institution, with a focus on efforts to balance or equalize the position of the parties, especially workers, is expected to maximize the advantages of mediation as one of the main options in resolving industrial relations disputes, including in resolving disputes that occur in the tourism sector. Conclusion The conclusion of this research indicates that Termination of Employment (PHK) disputes and rights disputes currently dominate industrial relations conflicts in Indonesia. According to the latest data from 2024, the number of PHK disputes and disputes ofver rights reached 7,225 cases. This condition is linear with the existing conditions in the tourism sector, which indicates that the disputes that occur are also dominated by the same types of disputes. This condition reflects the imbalance between the spirit of efficiency desired by companies and the fulfillment of workers’ rights. This then gives rise to the potential for an increase in industrial relations disputes within the framework of employment relations, both in terms of quantity and quality. Regarding the dispute resolution mechanism, particularly the regulation of industrial relations mediation, based on an analysis of the Industrial Relations Dispute Settlement Law (UU PPHI), its implementing regulations as formal law for the resolution of industrial relations disputes, and by observing the existing conditions in the practical context of industrial relations dispute resolution currently occurring in Indonesia (particularly in the tourism sector), it was found that workers are still placed in a weak (unbalanced) position when they have to go through the dispute resolution mechanism in the PPHI system. This imbalance of position is also one of the weaknesses when workers use industrial relations mediation as a medium or means of resolving disputes that occur in companies. This study proposes the Mediation Equity Model as a framework to strengthen the legal basis of industrial relations mediation. The model seeks to enhance the position of workers and maximize the inherent advantages of mediation in resolving industrial disputes. It is constructed through the formulation and mapping of regulatory shortcomings, particularly within the Industrial Relations Dispute Settlement Law (UU PPHI), and supported by empirical findings from field research, with a specific focus on mediation practices in the tourism sector. Acknowledgement The authors would like to express their sincere gratitude to all parties who have supported the implementation of this research, particularly the Rector of Udayana University, the Head of the Institute for Research and Community Service (LPPM) of Udayana University, the Dean of the Faculty of Law of Udayana University, as well as all other relevant parties, whose contributions have enabled this research to be carried out smoothly. 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Jurnal Bina Mulia Hukum, 6(1); Safrida, S., Kamello, T., Purba, H., Sembiring, R. (2024). Asas Itikad Baik Dalam Perjanjian Kerja Bersama Antara Pengusaha Dengan Serikat Pekerja ditinjau dari Hukum Perjanjian. Inspiring Law Journal, 2(1); Sari, A. A., Dewi, A. A., Arthanaya, I. W. (2021). Perlindungan hukum karyawan terkait pengurangan gaji akibat pandemi Covid-19 pada hotel dan restaurant di area Seminyak. Jurnal Analogi Hukum, 3(3); Sellang, K., Ahmad, J., Mustanir, A. (2022). Strategi dalam peningkatan kualitas pelayanan publik: Dimensi, konsep, indikator dan implementasinya. Qiara Media; Sudiarawan, K. A., Martana, P. A. (2019). Implikasi hukum pengaturan upah minimum sektoral Kabupaten Badung terhadap pelaku usaha pada sektor kepariwisataan di Kabupaten Badung Provinsi Bali. Supremasi Hukum: Jurnal Penelitian Hukum, 28(1). Normative Acts: Indonesia. (2004). Law Number 2 of 2004 concerning The Settlement of Industrial Relations Disputes. Government of Indonesia. Indonesia. (1999). Law Number 30 of 1999 on Arbitration and Alternative Dispute Resolution. Government of Indonesia. Ministry of Manpower and Transmigration of the Republic of Indonesia. (2014). Regulation No. 17 of 2014 on the Appointment and Dismissal of Industrial Relations Mediators and Mediation Procedures. Government of Indonesia Ministry of Manpower and Transmigration of the Republic of Indonesia. (2005). Regulation PER.10/MEN/V/2005 on the Appointment and Dismissal of Conciliators and Conciliation Procedures. Government of Indonesia. Constitutional Court of the Republic of Indonesia. (2015). Decision No. 68/PUU-XIII/2015 on the Judicial Review of Law No. 2 of 2004 concerning the Settlement of Industrial Relations Disputes. Retrieved from https://www.mkri.id/ Court Decisions: Direktori Putusan Mahkamah Agung. (2020). https://putusan3.mahkamahagung.go.id/direktori/index/pengadilan/mahkamah-agung/kategori/phi/tahunjenis/putus/tahun/2020.html Direktori Putusan Mahkamah Agung. (2021). https://putusan3.mahkamahagung.go.id/direktori/index/pengadilan/mahkamah-agung/kategori/phi/tahunjenis/putus/tahun/2021.html Direktori Putusan Mahkamah Agung. (2022). https://putusan3.mahkamahagung.go.id/direktori/index/pengadilan/mahkamah-agung/kategori/phi/tahunjenis/putus/tahun/2022.html Direktori Putusan Mahkamah Agung. (2023). https://putusan3.mahkamahagung.go.id/direktori/index/pengadilan/mahkamah-agung/kategori/phi/tahunjenis/putus/tahun/2023.html Direktori Putusan Mahkamah Agung. (2024). https://putusan3.mahkamahagung.go.id/direktori/index/pengadilan/mahkamah-agung/kategori/phi/tahunjenis/putus/tahun/2024.html Other Supporting Materials: Databoks. (2023). Ini Banyaknya Perselisihan Hubungan Industrial di Indonesia pada 2023. https://databoks.katadata.co.id/datapublish/2024/03/20/ini-banyaknya-perselisihan-hubungan-industrial-di-indonesia-pada-2023. Footnotes [1] Sudiarawan, K. A., Martana, P. A. (2019). Implikasi hukum pengaturan upah minimum sektoral Kabupaten Badung terhadap pelaku usaha pada sektor kepariwisataan di Kabupaten Badung Provinsi Bali. Supremasi Hukum: Jurnal Penelitian Hukum, 28(1), 33-56. [2] Sari, A. A., Dewi, A. A., Arthanaya, I. W. (2021). Perlindungan hukum karyawan terkait pengurangan gaji akibat pandemi Covid-19 pada hotel dan restaurant di area Seminyak. Jurnal Analogi Hukum, 3(3), 382-387. [3] Sellang, K., Ahmad, J., Mustanir, A. (2022). Strategi dalam peningkatan kualitas pelayanan publik: Dimensi, konsep, indikator dan implementasinya. Qiara Media, 12. [4] Indonesia. (2004). Law Number 2 of 2004 concerning The Settlement of Industrial Relations Disputes. Government of Indonesia. [5] Ibid. [6] Arsalan, H., Putri, D. S. (2020). Reformasi hukum dan hak asasi manusia dalam penyelesaian perselisihan hubungan industrial. Jurnal HAM, 11(1), 39-49. [7] Harianto, A. (2024). Paradigmatic Problems of Industrial Relation Dispute Settlement in the Perspective of Pancasila Industrial Relations. Journal of Law and Legal Reform, 5(1), 27–37. [8] Mantili, R. (2021). Konsep Penyelesaian Perselisihan Hubungan Industrial Antara Serikat Pekerja dengan Perusahaan Melalui Combined Process (Med-Arbitrase). Jurnal Bina Mulia Hukum, 6(1), 1-12. [9] Dermawan, F. A., & Sarnawa, B. (2021). Peran Dinas Tenaga Kerja Dalam Proses Mediasi Penyelesaian Permasalahan Hubungan Industrial. Media of Law and Sharia, 2(1), 45–54. [10] Arsalan, Op. Cit. [11] Karsona, A. M., Putri, S. A., Mulyati, E., Kartikasari, R. (2020). Perspektif penyelesaian sengketa ketenagakerjaan melalui Pengadilan Hubungan Industrial dalam menghadapi Masyarakat Ekonomi ASEAN. Jurnal Poros Hukum Padjadjaran, 1(2), 158-168. [12] Dananjaya, N.S., Sudiarawan, K.A., dkk. (2023). Penerapan keunggulan karakteristik penyelesaian sengketa secara non litigasi dalam penyelesaian perselisihan hubungan industrial. (Laporan Penelitian Hibah Unggulan Udayana). LPPM Universitas Udayana. [13] Databoks. (2023). Ini Banyaknya Perselisihan Hubungan Industrial di Indonesia pada 2023. <https://databoks.katadata.co.id/datapublish/2024/03/20/ini-banyaknya-perselisihan-hubungan-industrial-di-indonesia-pada-2023> (Last access: November 15, 2024). [14] Direktori Putusan Mahkamah Agung. (2020). https://putusan3.mahkamahagung.go.id/direktori/index/pengadilan/mahkamah-agung/kategori/phi/tahunjenis/putus/tahun/2020.html. [15] Ibid. (2021). https://putusan3.mahkamahagung.go.id/direktori/index/pengadilan/mahkamah-agung/kategori/phi/tahunjenis/putus/tahun/2021.html. [16] Ibid. (2022). https://putusan3.mahkamahagung.go.id/direktori/index/pengadilan/mahkamah-agung/kategori/phi/tahunjenis/putus/tahun/2022.html. [17] Ibid. (2023). https://putusan3.mahkamahagung.go.id/direktori/index/pengadilan/mahkamah-agung/kategori/phi/tahunjenis/putus/tahun/2023.html. [18] Ibid. (2024). https://putusan3.mahkamahagung.go.id/direktori/index/pengadilan/mahkamah-agung/kategori/phi/tahunjenis/putus/tahun/2024.html [19] Indonesia. (1999). Law Number 30 of 1999 on Arbitration and Alternative Dispute Resolution. Government of Indonesia. [20] Irawan, N. (2023). Studi Yuridis Normatif Implementasi Regulasi Perselisihan Hubungan Industrial. Jurnal Ketenagakerjaan, 18(1), 49. [21] Hidayat, R. (2023). Kepastian Hukum Putusan Tripartit Dalam Penyelesaian Perselisihan Hubungan Industrial Berdasarkan Undang-Undang Nomor 2 Tahun 2004 Tentang Penyelesaian Perselisihan Hubungan Industrial. Dalam SeNaSPU: Seminar Nasional Sekolah Pascasarjana (Vol. 1, No. 1, hlm. 177). [22] Irawan, N. op.cit. [23] Ministry of Manpower and Transmigration of the Republic of Indonesia. (2014). Regulation No. 17 of 2014 on the Appointment and Dismissal of Industrial Relations Mediators and Mediation Procedures. Government of Indonesia [24] Ministry of Manpower and Transmigration of the Republic of Indonesia. (2005). Regulation PER.10/MEN/V/2005 on the Appointment and Dismissal of Conciliators and Conciliation Procedures. Government of Indonesia. [25] Kesek, S. (2015). Studi Komparasi Penyelesaian Perselisihan Hubungan Industrial Melalui Mediasi dan Konsiliasi. Dedikasi: Jurnal Ilmiah Sosial, Hukum, Budaya, 31(2), 133. [26] Safrida, S., Kamello, T., Purba, H., Sembiring, R. (2024). Asas Itikad Baik Dalam Perjanjian Kerja Bersama Antara Pengusaha Dengan Serikat Pekerja ditinjau dari Hukum Perjanjian. Inspiring Law Journal, 2(1), 59. [27]Constitutional Court of the Republic of Indonesia. (2015). Decision No. 68/PUU-XIII/2015 on the Judicial Review of Law No. 2 of 2004 concerning the Settlement of Industrial Relations Disputes. Retrieved from https://www.mkri.id/. [28] Mahkamah Konstitusi Republik Indonesia. (2015). MK: Mediator hubungan industrial harus terbitkan risalah mediasi. https://www.mkri.id/index.php?page=web.Berita&id=12141.
Anti-Corruption Legislation in Vietnam: Barriers in Practical Application
Corruption has persisted as one of the most complex and enduring challenges in human society. Since the mid-twentieth century, it has evolved into a widespread global issue, exerting harmful effects not only on economic growth but also on social ethics, political stability, and cultural values. Across many nations, corrupt behavior erodes institutional integrity, weakens citizen confidence, and impedes sustainable development. This study examines the nature, scope, and consequences of corruption, highlighting recent trends in Vietnam. Although the Vietnamese government has made consistent efforts through legislative reform and institutional restructuring, the practical outcomes remain below expectations. The central limitation lies in the lack of comprehensive enforcement and the inadequate deterrent effect of existing sanctions. By combining theoretical interpretation with empirical observation, the article argues that an effective anti-corruption strategy must focus on strengthening legal enforcement and ensuring equality before the law. Strict and impartial punishment of corrupt officials, particularly those holding Party or governmental positions, is essential to restore public trust and reinforce state legitimacy. The study thereby contributes to the ongoing academic and policy dialogue on promoting the rule of law and enhancing the efficiency of anti-corruption governance in transitional political systems. Keywords: Corruption prevention, legal enforcement, policy effectiveness, rule of law, Vietnam. Introduction Corruption and efforts to prevent it have existed throughout the long course of human civilization. Across historical periods, corruption has not only reflected the moral decline of individuals but also exposed structural weaknesses in the exercise of public authority, creating systemic harm to political, economic, and cultural life. Since the latter half of the twentieth century, this phenomenon has evolved into a global crisis that undermines social morality, weakens institutional credibility, and poses serious threats to sustainable development. During the past thirty years, numerous countries and international organizations have launched extensive strategies and programs aimed at reducing corruption. These initiatives include reforming legal frameworks, enhancing transparency in state management, strengthening the role of oversight by civil society, and expanding international cooperation in the investigation and prosecution of corruption cases. However, the practical outcomes remain limited. In many developing and transitional economies, corruption continues to adapt in increasingly complex forms, penetrating both public and private sectors. Such persistence erodes citizen trust, obstructs fair competition, and hinders the pursuit of inclusive and sustainable growth. In the context of Vietnam, corruption has exhibited complicated and persistent characteristics, negatively affecting multiple dimensions of social life. Acknowledging its serious consequences, the Communist Party of Vietnam identified corruption as one of the four primary risks threatening the stability of the political system and the success of national renovation.[1] This recognition reflects the Party’s consistent awareness of the fundamental importance of anti-corruption, linking it closely to the mission of building a socialist rule of law state and advancing a socialist-oriented market economy. According to the National Strategy on Anti-Corruption to 2020, the prevention and control of corruption constitute a collective responsibility of the entire political system under the leadership of the Party. The strategy emphasizes the coordination among state agencies, social organizations, and citizens, while underlining the accountability of leaders of public institutions. Anti-corruption work is considered both an urgent and long-term mission, closely tied to the objectives of socio-economic reform and institutional modernization.[2] Despite the visible progress achieved through legislation and enforcement, manifestations such as bureaucracy, abuse of authority, and harassment by certain officials still appear, particularly at the grassroots level. These problems diminish the moral authority of the Party, weaken public confidence, and highlight that corruption in Vietnam is not only a legal challenge but also a question of political ethics and administrative integrity. In this situation, the Communist Party of Vietnam has repeatedly affirmed that combating corruption is a shared task of the entire political system under unified Party leadership.[3],[4] The campaign must be implemented comprehensively, mobilizing the strength of governmental institutions, social organizations, trade unions, and the people at large. It must also be associated with the broader goals of socio-economic transformation, political stability, and the consolidation of national unity in building a socialist rule of law state during the new phase of development. From this perspective, the study of Vietnam’s anti-corruption legal framework, particularly in relation to obstacles in practical implementation, bears profound theoretical and practical relevance. Understanding the weaknesses within the institutional mechanism is essential for formulating solutions that improve the effectiveness and coherence of the legal system. Such efforts will not only strengthen the rule of law but also advance the broader objective of sustainable development and national modernization. 1. Literature Review 1.1 Economic and investment environment impacts of corruption Many works have focused on clarifying the relationship between corruption, economic growth, and investment in the context of Vietnam’s transition to a socialist-oriented market economy. Anh, Minh, & Tran (2016) argue that corruption is a negative factor that reduces the efficiency of resource allocation, distorts market signals, and limits growth rates.[5] The authors demonstrate that although Vietnam has issued many legal regulations on transparency and integrity in public service, the effectiveness of enforcement is limited due to the lack of independent inspection and monitoring mechanisms. Bai, Jayachandran, Malesky & Olken (2017) use empirical evidence on Vietnamese enterprises to show that corruption in the licensing, inspection, and access to capital processes is a major barrier to private sector development.[6] Despite the presence of anti-corruption legislation in the business environment, weak enforcement imposes significant “informal costs” on firms, which reduces incentives for innovation and long-term investment. Nguyen, Tran, & Truong (2024) approach this issue at the local level, emphasizing that corruption levels in localities are closely linked to investment performance.[7] In provinces with high levels of corruption, firms tend to scale down operations and reduce investment, despite preferential policies. This reflects a clear gap between the anti-corruption legal framework and enforcement effectiveness in the context of local governance. Notably, research by Huy, Khanh, Viet & Cuong (2025) assesses the large-scale anti-corruption campaign in Vietnam in the recent period.[8] The results show that the Government’s strong measures have temporarily increased investor confidence, but have not created a sustainable impact on the business environment. The lack of consistency in law enforcement and the instability of the institutional framework make businesses still hesitant to expand investment. Thus, studies in this area agree on the view that the effectiveness of anti-corruption law enforcement has a direct impact on market confidence and national competitiveness, and at the same time point out the need to strengthen independent enforcement and monitoring mechanisms to minimize informal costs in the economy. 1.2 Institutions, politics, and law in anti-corruption The second research area focuses on analyzing the institutional, political, and legal aspects in the process of planning and implementing anti-corruption policies in Vietnam. Bui Hai Thiem (2019) is one of the pioneering scholars who pointed out that anti-corruption reforms in Vietnam are strongly influenced by political factors,[9] in which the Communist Party of Vietnam plays a central role in guiding and controlling the implementation process. The author argues that although the legal framework has been expanded with the Law on Anti-Corruption (2018) and guiding documents, the concentration of power and the lack of independence of supervisory agencies remain the main barriers to practical effectiveness.[10] Nguyen & Nguyen’s research (2025) takes an institutional analysis approach, emphasizing that although the Vietnamese legal system on anti-corruption is comprehensive in terms of structure, it is “institutionally dependent”, meaning that the effectiveness of the law depends on the level of political commitment and the ability of the administrative apparatus to operate.[11] The lack of a mechanism to ensure the independence of the courts, the procuracy, and the investigation agencies makes anti-corruption laws not as effective as expected. Dung & Thanh (2023) extend the issue to the field of corruption in the private sector, pointing out that current laws do not have strong enough tools to control bribery between enterprises or between the private sector and the public sector.[12] Although Vietnam has criminalized the liability of legal entities, the mechanism for investigation, prosecution, and protection of whistleblowers is still weak, leading to an “imbalance” between regulations and practical application. In addition, Giang (2024) analyzes the “furnace” campaign from a political economy perspective, arguing that this is both a political measure and a test of the effectiveness of the legal system.[13] The results show that this campaign contributes to strengthening integrity in the public sector, but at the same time reflects that anti-corruption in Vietnam is still closely tied to political power and cannot become a purely legal process. Forde (2022) adds a theoretical perspective when viewing corruption in Vietnam as a “power accumulation structure” associated with a cronyism mechanism.[14] The author argues that although the law in this context is regularly reformed, it is difficult to achieve real effectiveness because it is dominated by group interests and lacks accountability. In general, studies in this group agree on the argument that institutional and political barriers are the underlying cause of the failure of anti-corruption laws in Vietnam to be fully effective. 1.3 Law enforcement, media, and regional comparisons The third research area extends to issues of law enforcement, the role of media, regional comparisons, and historical legal inheritance. Nguyen and Nhan (2024) focus on the role of investigative journalism, considering it an important tool for monitoring and detecting corruption.[15] However, the study also found that press freedom and journalists’ access to information are still constrained by the legal framework, making it difficult to investigate and report on corruption. Maslen’s (2025) report, conducted by Transparency International, provides a comprehensive overview of corruption patterns and anti-corruption policies in Vietnam.[16] The report found that Vietnam has made significant progress in lawmaking, but enforcement, asset transparency, and whistleblower protection remain major weaknesses. At the regional level, Nobumichi Teramura & Luke Nottage (2025) compared anti-corruption provisions in East Asian and South Asian investment treaties, finding that although Vietnam has adapted many regulations to international standards, it still lacks an effective internalization mechanism.[17] In particular, Van, Van, Minh & Trong (2024) approach the issue from a legal historical perspective, analyzing the crime of bribery in the Hong Duc Code and considering it a typical legal precedent for current regulations on public service integrity.[18] This study affirms that the Vietnamese legal tradition has always attached great importance to the ethics of officials and transparency in the performance of public duties, but in the modern context, this factor has not been effectively transformed into a legal enforcement mechanism. 1.4 Research gap Synthesizing studies in this group shows that, although Vietnam has made much progress in perfecting the law and raising social awareness, the gap between legal regulations and practical effectiveness remains a big challenge. The lack of coordination between state agencies, the media, and civil society means that the law has not really played its role in preventing, detecting, and handling corrupt acts. The three research areas above have provided a comprehensive view of the issue of corruption and anti-corruption laws in Vietnam. The works all agree that barriers in the practice of law enforcement originate from institutional, political, and social factors, in which the effectiveness of the law depends on the level of transparency, independence of the judicial system, and monitoring mechanisms. However, the current gap lies in the lack of in-depth empirical studies on the effectiveness of new legal regulations, as well as the relationship between anti-corruption, social trust, and improving the investment environment. The topic “Anti-Corruption Legislation in Vietnam: Barriers in Practical Application” aims to overcome that gap by analyzing institutional, legal, and behavioral barriers in the practice of anti-corruption law enforcement in Vietnam, contributing to perfecting the legal foundation and promoting transparency and integrity in national governance. 2. Methodology 2.1 Documentary analysis and synthesis Objective: The purpose of this method is to clarify the theoretical foundations and the current system of legal regulations and policy frameworks concerning the prevention and control of corruption in Vietnam. Data Sources: The study draws upon a variety of normative and institutional documents, including the Law on Anti-Corruption adopted in 2018 and its guiding decrees and circulars. Supplementary materials comprise annual and thematic reports of the Government Inspectorate, the Ministry of Justice, and the Judicial Committee of the National Assembly. In addition, analytical and comparative data are collected from international organizations such as the United Nations Development Program, the Organization for Economic Co-operation and Development, and the World Bank. Approach: The analysis focuses on the systematization of relevant legal provisions, the interpretation of fundamental concepts, the clarification of the scope and objectives of anti-corruption legislation, and the identification of core policy orientations. The findings are then compared with international standards and best practices to determine the level of harmonization between Vietnam’s legal framework and global approaches to integrity and transparency. 2.2 Legal reality analysis Objective: This method aims to identify and interpret the main barriers that arise in the practical implementation of anti-corruption laws and policies. Practical Data: Empirical evidence is gathered from representative cases that have been tried in court or subjected to administrative sanctions, inspection and audit findings, official conclusions of the State Audit Office, and independent evaluations prepared by social organizations, professional associations, and policy experts. Method: Through detailed analysis of judicial judgments, inspection reports, and law enforcement assessments, the study identifies recurring patterns and systemic obstacles that hinder the effectiveness of anti-corruption mechanisms. These include inconsistencies and loopholes in the legal framework, conflicts of interest within administrative structures, insufficient coordination among competent authorities, and inadequate mechanisms for the protection of whistleblowers and informants. 2.3 Comparative legal method Objective: The purpose of the comparative legal approach is to evaluate the Vietnamese anti-corruption framework in relation to selected foreign models, thereby identifying both its advantages and limitations. Method: The comparison is conducted on the basis of specific criteria such as the transparency of asset declaration mechanisms, the independence of investigative bodies, the effectiveness of whistleblower protection, and the participation of civil society in monitoring public integrity. The institutional differences and their practical implications are analyzed to draw lessons for improving Vietnam’s anti-corruption system and ensuring greater coherence between legal provisions and implementation outcomes. 3. Findings and Discussion 3.1 Findings 3.1.1 Current landscape of corruption in Vietnam Corruption in Vietnam remains a pervasive and complex reality that cuts across sectors and levels of authority. Wherever material incentives intersect with non-material interests, opportunities for rent seeking and illicit gain tend to arise. The Political Report of the Ninth National Congress identified corruption as a serious national problem, a conclusion that still frames contemporary assessments of risks to governance and development in the country.[19] The spectrum of corrupt conduct is diverse. It includes embezzlement, bribery, diversion and misuse of public assets, fraudulent appropriation of property from the state and citizens, and abuse of position or power to create artificial obstacles for private gain. Other recurrent patterns include the creation of unauthorized funds and the use of budget resources contrary to legal provisions for particularistic benefits. Such practices have been documented across public finance and procurement, land administration, taxation, banking, customs, commercial activities, education, health services, the justice chain, and the administration of social programs, among other domains.[20] In terms of scale, corruption appears at the level of individuals and groups, in both sporadic and structured forms. The measurable loss to the public purse can reach very large magnitudes, with some cases causing damage amounting to hundreds or thousands of billions of Vietnamese dong. The intangible harm is even more serious. Corruption erodes public trust, weakens the moral authority of public institutions, and undermines confidence in the reform trajectory pursued by the Communist Party of Vietnam. 3.1.2 Evolution of anti-corruption efforts Vietnam has treated anti-corruption as a core governance priority since the early years of the revolutionary state. President Ho Chi Minh warned that greed is an internal enemy and must be confronted decisively.[21] In recent decades, the Party, the State, and the people have consistently characterized corruption as a grave national threat and have acted to contain it through a mix of prevention, detection, and sanctioning measures.[22] Policy directions and legal instruments have been repeatedly articulated in Party resolutions, statutes, executive regulations, and institutional guidance. Public communication through mass media and scholarly and professional forums has made corruption and anti-corruption a regular item in central and sectoral reporting. The issue is also a subject of daily public debate, reflecting the expectations and frustrations of citizens in both urban and rural settings. Over time, Vietnam has moved from foundational enactments to more comprehensive institutional reforms. The Law on Anti-Corruption and the Law on Thrift Practice and Waste Combat were important milestones, followed by the establishment of the Central Steering Committee on Anti-Corruption. A theme resolution of the Third Conference of the Tenth Central Committee offered a frank appraisal of constraints, clarified objectives and guiding views, and set out measures and implementation responsibilities in a structured way. The Law on Anti-Corruption of 2018 represents a major update. It came into effect on 1 July 2019 and expanded the scope of asset and income declaration, mandated publicity of declarations, clarified leadership accountability when corruption occurs in agencies and units, and strengthened the consequences for dishonest declarations, including possible dismissal.[23] These innovations aim to improve transparency, reinforce personal responsibility in declaration and control of conflicts, and elevate the role of leaders in building integrity-centered organizations. The political determination behind these reforms is to shape four conditions that reduce the space for wrongdoing. The goal is that people do not need to engage in corruption, cannot easily do so, do not want to do so, and do not dare to do so. Despite this broad approach, outcomes have not yet matched expectations. Official assessments still describe corruption and waste as serious and widespread in several sectors and levels of administration, with complex modalities and negative social effects that diminish public confidence.[24] 3.1.3 Why results remain below expectations The shortfall does not imply an absence of effort. Rather, it indicates that the strength, continuity, and coherence of policy implementation have not always been adequate to produce transformative outcomes. Objective factors identified in recent research point to the rapid diversification of economic activities that has exceeded the regulatory and oversight capacity of existing institutions. Weaknesses in the system of checks and balances, combined with incomplete mechanisms for transparency and accountability, have enabled conflicts of interest and abuse of authority to persist in practice.[25] Another key limitation lies in the structural complexity of corruption itself. Contemporary studies reveal that corruption is no longer confined to the public sector but increasingly manifests in non-state domains and at the intersection between public and private interests. This blurred boundary complicates traditional control models that rely solely on administrative or criminal sanctions. In sectors such as public procurement, land management, banking, and health care, forms of collusive corruption often occur through networks that involve both state officials and private actors, making detection and accountability far more difficult.[26] At the same time, normative inconsistencies within the legal system have constrained deterrence capacity. The coexistence of overlapping regulations, discretionary enforcement, and limited coordination among supervisory bodies has allowed certain acts of misconduct to fall outside the scope of effective sanctioning. The persistence of waste, embezzlement, and regulatory capture demonstrates that enforcement must be integrated with preventive measures, ensuring that behavioral norms are internalized across the entire administrative system rather than addressed only through isolated punitive actions.[27] Equally important is the challenge of cultivating an integrity culture in the public service. Despite improvements in political education and ethics training, the incentive structure within many institutions remains insufficient to encourage honest behavior or reward compliance. Inadequate protection for whistleblowers, limited citizen oversight, and weak linkage between performance evaluation and integrity standards reduce the effectiveness of moral and institutional deterrents. Thus, the effectiveness of anti-corruption policy depends not only on law enforcement but also on building a comprehensive system of incentives, accountability, and civic participation that reinforces transparency and collective responsibility. 3.1.4 Strategic orientation and breakthrough priorities In the near term, a breakthrough strategy should prioritize two achievable conditions while longer-term structural reforms continue to mature. The priority is to reduce the desire to engage in corruption by fostering a social environment where integrity is a valued norm and corrupt conduct is a source of shame, community disapproval, and legal consequence. The second priority is to increase the risk calculus against corruption so that the likelihood and severity of punishment decisively outweigh expected gains. Three mutually reinforcing measures are central: (1) Promote ethical standards and a public culture that recognizes integrity as a social good. This involves education in civic values, visible rewards for honest public service, and community-based condemnation of corrupt acts. (2) Deepen democratic practices and community oversight in line with grassroots democracy regulations. Citizens need safe channels to raise concerns, robust legal protection for whistleblowers, and a credible expectation that reports will lead to impartial investigation. (3) Apply strict and impartial sanctions whenever corruption is detected, with special emphasis on officials and Party members who hold public power. Public disclosure of outcomes, full recovery of illicit gains, and consistent discipline are essential to restore trust and deter future violations. These priorities echo the official ten-year review of anti-corruption and negative practice control from 2012 to 2022, which called for stronger responsibility of leaders, an integrity culture across the system, and tighter coordination among inspection, audit, investigation, prosecution, adjudication, and enforcement bodies to close enforcement gaps and improve deterrence quality and speed.[28] 3.1.5 Implementation focus Effective implementation begins with example setting by public officials and Party members. Primary Party organizations should cultivate an internal climate of openness and accountability, with genuine self-criticism and peer review, so that warning signs are identified early and addressed promptly. When violations occur, procedures must be predictable, evidence-based, and firm for all subjects, with no tolerance for selective enforcement. Citizen oversight, investigative journalism, and professional monitoring by social organizations can amplify detection capacity and reinforce norms against wrongdoing. Public awareness campaigns that highlight the social costs of corruption and celebrate clean governance can convert millions of eyes and ears into an integrity network that constrains misconduct through social disapproval as well as through legal consequences. Historical experience shows that firm punishment of bribery and embezzlement has long underpinned public service ethics in Vietnam. The contemporary legal order should continue this principle by tailoring modern sanctions to present-day economic realities while safeguarding due process and equality before the law. Over the long run, sustained progress also requires continued work on the other two conditions that are more resource-intensive. Expanding inclusive development and improving public service delivery can reduce the perceived need for illicit rents. Consolidating a rule of law state with strong transparency, fit-for-purpose procedures, and real-time data systems can make corruption much harder to perform and much easier to detect. These structural investments take time, but the interim breakthrough measures described above can cool the problem while the broader system matures. 3.2 Discussion The results show that the barriers to the practical application of anti-corruption laws in Vietnam stem from the complex interaction between institutional structures, economic incentives, and social norms of integrity. In other words, the current normative framework has made significant progress in form, but its enforcement effectiveness is still limited by the independence of law enforcement actors, the ability of public oversight, and mechanisms to reduce opportunities for profiteering in high-risk processes. This discussion highlights three main axes, including economic impacts and market signals, institutional and political-legal conditions, and the role of social media and regional comparisons. From there, it proposes a reform logic towards increasing the probability of detection, ensuring the certainty of sanctions, and reducing the opportunities for violations in sensitive stages. On the economic impact axis, empirical evidence confirms that corruption creates informal costs and distorts market signals, thereby reducing investment and innovation by firms. Using Vietnamese firm data, show that informal costs in licensing, inspection, and access to capital are significant barriers to scale growth and long-term investment by the private sector, even though anti-corruption regulations are present in the business environment, but are not enforced strongly enough to eliminate incentives for illegal payments.[29] At the macro level, argued that corruption reduces resource allocation efficiency and stunts growth through price signal distortions and wasted public investment, while transparency and integrity regulations are difficult to be effective in the absence of credible independent monitoring mechanisms.[30] At the local level, the negative relationship between corruption and investment performance is quite consistent when policy incentives are offset by institutional risks, causing firms to shrink operations and delay capital expansion.[31] These observations reinforce the argument that to encourage sustainable investment, it is necessary to move from campaign-based signaling to process standardization, because political nudges only create temporary trust if they are not institutionalized into predictable and consistent processing chains.[32] Regarding the institutional and political-legal axis, many studies converge on the assessment of the institutional dependence of anti-corruption laws. Bui Hai Thiem (2019) analyzes that integrity reform in Vietnam is strongly influenced by political factors, in which the leading role of the Party is both a driving force and a limit when designing mechanisms for power control and accountability.[33] According to the institutional analysis approach, Nguyen and Nguyen point out that the effectiveness of the law depends significantly on the level of political commitment and the operational capacity of the administrative apparatus, in the context of the lack of guarantees of independence of the courts, the procuracy, and the investigation agency.[34] On that basis, Forde sketches corruption as a power accumulation structure associated with cronyism, where group interests can undermine the substantive impact of normative reforms despite the high frequency of law amendments.[35] From the political economy perspective, Giang asserts that the anti-corruption campaign has strengthened public sector integrity, but at the same time shows that anti-corruption is still closely tied to political power and has not yet operated as a purely legal process, which requires further institutionalization of the process to reduce dependence on episodic impulses.[36] The third axis relates to enforcement, communication, and social norms. The role of investigative journalism is seen as an important discovery channel, but is limited by the legal framework on access to information and occupational risks, making the monitoring capacity of society not yet at the level necessary to create effective preventive pressure.[37] The overview report of Transparency International and U4 noted that Vietnam has made significant progress in lawmaking, but bottlenecks remain in the disclosure of income and assets, whistleblower protection mechanisms, and the consistency of enforcement in the field.[38] From a regional comparative perspective, analysis of anti-corruption provisions in East Asian and South Asian investment agreements shows that Vietnam has significantly adapted to international standards but lacks an effective internalization mechanism to convert external commitments into domestic enforcement capacity.[39] From the legal tradition, the study of bribery in the National Dynasty Penal Code of the Hong Duc period shows that the foundation of public service ethics and the spirit of deterrence have long been codified, suggesting lessons on designing sanctions stratified by public service status and the level of damage to maximize the overall deterrent effect.[40] It is also worth noting the World Bank’s argument on legal corruption in a broad sense, according to which institutional loopholes can create space for self-interested behavior within a weak legal framework, blurring the line between legal wrongdoing and deviation from governance standards, thereby challenging purely norm-based prevention efforts. From the three axes of analysis above, the policy logic can be reinterpreted in the direction of balancing strong deterrence and reducing opportunities and incentives: First, increasing the probability of detection through data technology and risk-based auditing is a fundamental breakthrough. It is necessary to merge the asset declaration database with tax, land, business registration, and financial transaction data, and deploy random checks with a frequency large enough to change the risk expectations of potential violators. Second, ensuring the certainty of sanctions rather than just increasing the nominal penalty. Certainty is reflected in the time-bound processing process, transparency in the criteria for quantifying damages, and the mechanism for recovering assets of unaccounted origin according to international judicial cooperation standards. Comparative experience with the internalization of anti-corruption provisions in investment treaties shows that deterrence depends on cross-border enforcement of illicit assets and complex ownership structures, which Vietnam needs to improve soon through a network of mutual legal assistance and internationally compatible anti-money laundering regulations.[41] Third, reduce opportunities for profiteering by redesigning processes in high-risk areas such as land, public procurement and licensing. The focus is on digitizing the entire procedural lifecycle, making real-time progress milestones, document lists, bid prices and contractor selection results public, so that electronic audit trails become a soft but continuous deterrent mechanism. One point to emphasize is that the measure of anti-corruption effectiveness should shift from perception to verifiable behavioral indicators. Observable variables such as the rate of timely settlement, the difference between the estimated and winning bid prices, the rate of randomly verified declarations, and the rate of return on assets recovered allow for monitoring the progress of reforms at local and sectoral levels. When results are published periodically, competition for integrity can develop, creating incentives for improvement from within the apparatus. Empirical evidence on the impact of anti-corruption campaigns on investment confidence suggests that the signaling effect is real but short-lived without changes in operating rules. Huy et al. note that improved confidence does not translate into sustained investment growth when enforcement consistency is limited, reinforcing the need to institutionalize predictable, non-discriminatory standards for handling violations and with independent monitoring mechanisms.[42] Thus, an effective anti-corruption strategy for Vietnam needs to synchronize the two components. The institutional component is to strengthen the relative independence of supervision and investigation, data interconnection and standardization of case handling procedures. The behavioral component is to reduce opportunities and incentives through process redesign, public service performance management and integrity standards communication. When both components are operated together, the conditions of not wanting to be corrupt and not daring to be corrupt will reach a threshold large enough to create a sustainable effect, narrowing the gap between legal documents and enforcement, thereby strengthening the rule of law and restoring social trust. Conclusion Power inherently carries the risk of being distorted or abused. Corruption is often viewed as an intrinsic flaw that accompanies the possession of power. For this reason, it is essential to construct a comprehensive mechanism that supervises and limits the exercise of authority. Every form of power must be placed under effective institutional control, ensuring that authority is always linked to accountability. The principle must be that the greater the authority one holds, the heavier the corresponding responsibility becomes. In order to realize this principle, inspection, supervision, and oversight mechanisms must be reinforced to guarantee that all power is exercised in a lawful, transparent, and responsible manner. The process of delegation and decentralization must always go hand in hand with clear assignment of duties and enforceable accountability. Officials who display indications of misconduct or engage in corrupt practices should be promptly transferred, demoted, or dismissed. Leaders who allow corruption to occur within their agencies must also bear direct responsibility and face strict disciplinary actions. These measures are designed to ensure that power is effectively constrained by institutional rules, figuratively “locking authority within the cage of regulations”, as expressed in Party documents. Particular attention should be given to monitoring how senior officials, especially heads of agencies, use their authority. Internal collective supervision within leadership structures must be strengthened. At the same time, the decision-making processes of those who exercise power should be made public, allowing both officials and citizens to participate in lawful supervision. The struggle against corruption is an arduous and enduring endeavor. Yet, from the progress and lessons of recent years, particularly since the Twelfth National Congress, there is firm ground for optimism. With strong political determination from the Party and the State, the coordinated participation of Party committees, public authorities, and the entire political system, along with active engagement from society, the anti-corruption movement has achieved visible progress. Continued perseverance and institutional refinement will enable Vietnam to gradually contain and repel corruption, contributing to the creation of a cleaner and stronger Party and State that meet the aspirations of the people and the demands of national development. References Scholarly Literature: Anh, N. N., Minh, N. N., Tran, N. B. (2016). Corruption and economic growth, with a focus on Vietnam. Crime, Law and Social Change, 65(4). <https://mpra.ub.uni-muenchen.de/84728/>; Bai, J., Jayachandran, S., Malesky, E. J., Olken, B. A. (2017). Firm growth and corruption: Empirical evidence from Vietnam. Oxford University Press on behalf of Royal Economic Society. The Economic Journal, 129(618). <https://doi.org/10.1111/ecoj.12560>; Bui, H. T. (2019). The politics of anti-corruption and integrity system reform in Vietnam. In Human rights and peace in Southeast Asia series 4: Challenging the norms. East Asia and the Pacific; Doan, H. N. (2025). Corruption in the non-state sector in Vietnam today and some solutions for the coming period. Journal of Communist. <https://www.tapchicongsan.org.vn/web/guest/kinh-te/-/2018/1115802/tham-nhung-trong-khu-vuc-ngoai-nha-nuoc-tai-viet-nam-hien-nay-va-mot-so-giai-phap-phong%2C-chong-thoi-gian-toi.aspx>; Dung, N. D., Thanh, N. T. (2023). Private Sector Corruption in Vietnam: From Legislation to its Impact on the Economy. International Journal of Professional Business Review, 8(2), e01490. <https://doi.org/10.26668/businessreview/2023.v8i2.1490>; Forde, A. (2022). Vietnamese Patterns of Corruption and Accumulation: Research Puzzles. Journal of Contemporary Asia, 53(2). <https://doi.org/10.1080/00472336.2022.2037010>; Giang, N. K. (2024). The political economy of Vietnam’s anti-corruption campaign. In Singh, D., Ha, H. T. (Eds.), Southeast Asian affairs 2024. Singapore: ISEAS Publishing. <https://doi.org/10.1355/9789815203516-023>; Huy, V. H., Khanh, H., Viet, H., Cuong, N. (2025). Investment under anticorruption: Evidence from the high-profile anticorruption campaign in Vietnam. Emerging Markets Review. <https://doi.org/10.1016/j.ememar.2025.101360>; Maslen, C. (2025). Vietnam: Corruption and anti-corruption (U4 Helpdesk Answer 2025:21). Bergen: Transparency International and U4 Anti-Corruption Resource Centre, Chr. Michelsen Institute. <https://knowledgehub.transparency.org/assets/uploads/helpdesk/Vietnam-Corruption-and-anti-corruption_250903_113041.pdf>; Nguyen, D. Q., Nhan, H. (2024). The watchdog navigates to bark: investigative reporting on corruption in Vietnam. Media Asia, 51(4). <https://doi.org/10.1080/01296612.2024.2312658>; Nguyen, N. A., Nguyen, D. N. (2025). Anti-corruption in Vietnam - an institutional analysis. Cogent Social Sciences, 11(1). <https://doi.org/10.1080/23311886.2025.2460320>; Nguyen, T. M., Tran, Q. T., Truong, T. T. T. (2024). Local corruption and corporate investment in an emerging market. Asia and the Global Economy,4(2). <https://doi.org/10.1016/j.aglobe.2024.100087>; Teramura, N., Nottage, L. (2025). Corruption-related provisions in East and South Asian investment agreements: An empirical analysis. Journal of International Economic Law, 28(2). <https://doi.org/10.1093/jiel/jgaf013>; Van, L. N., Van, A. D., Minh, A. P., Trong, A. P. (2024). The Crime of Accepting Bribes in the Hong Duc Code and Its Significance as a Model for Contemporary Criminal Law in Vietnam. International Journal of Law and Society, 7(3). <https://doi.org/10.11648/j.ijls.20240703.13>; Vu, V. H. (2025). An explanation of corruption, waste and negative practices and solutions for the current stage. State Management Journal. <https://www.quanlynhanuoc.vn/2025/05/15/luan-giai-ve-tham-nhung-lang-phi-tieu-cuc-va-giai-phap-phong-chong-tham-nhung-lang-phi-tieu-cuc-trong-giai-doan-hien-nay/>. Normative Acts: CPV. (2001). The 9th National Delegate Congress. Hanoi: The Truth; CPV. (2016). The 12th National Delegate Congress. Hanoi: The Truth; CPV. (2021). The 13th National Delegate Congress. Hanoi: The Truth; National Assembly. (2018). Law on Anti-Corruption (Law No. 36/2018/QH14). Hanoi. Other Supporting Materials: Luong, P. V., Van, V. H. (2019). Study of the Laws under the Feudal Dynasties of Vietnam. Addaiyan Journal of Arts, Humanities and Social Sciences, 1(7). <https://aipublisher.org/article_id=87>; Minh, H. C. (1995). Complete episode, episode 5. Hanoi: National Politics; Politburo. (2022). Ten-year review of anti-corruption and control of negative practices from 2012 to 2022. Tasks and solutions for the coming period. Hanoi; WB. (2005). Legal corruption. World Bank. https://web.archive.org/web/20150505185227/http://siteresources.worldbank.org/INTWBIGOVANTCOR/Resources/Legal_Corruption.pdf Footnotes [1] CPV. (2001). The 9th National Delegate Congress. Hanoi: The Truth. [2] CPV. (2021). The 13th National Delegate Congress. Hanoi: The Truth. [3] CPV. (2016). The 12th National Delegate Congress. Hanoi: The Truth. [4] CPV. (2021). The 13th National Delegate Congress. Hanoi: The Truth. [5] Anh, N. N., Minh, N. N., Tran, N. B. (2016). Corruption and economic growth, with a focus on Vietnam. Crime, Law and Social Change, 65(4), 307-324. <https://mpra.ub.uni-muenchen.de/84728/>. [6] Bai, J., Jayachandran, S., Malesky, E. J., Olken, B. A. (2017). Firm growth and corruption: Empirical evidence from Vietnam. Oxford University Press on behalf of Royal Economic Society. The Economic Journal, 129(618), 651-677. <https://doi.org/10.1111/ecoj.12560>. [7] Nguyen, T. M., Tran, Q. T., Truong, T. T. T. (2024). Local corruption and corporate investment in an emerging market. Asia and the Global Economy,4(2), 100087. <https://doi.org/10.1016/j.aglobe.2024.100087>. [8] Huy, V. H., Khanh, H., Viet, H., Cuong, N. (2025). Investment under anticorruption: Evidence from the high-profile anticorruption campaign in Vietnam. Emerging Markets Review, 69. <https://doi.org/10.1016/j.ememar.2025.101360>. [9] Bui, H. T. (2019). The politics of anti-corruption and integrity system reform in Vietnam. In Human rights and peace in Southeast Asia series 4: Challenging the norms (pp. 55–72). East Asia and the Pacific. [10] National Assembly. (2018). Law on Anti-Corruption (Law No. 36/2018/QH14). Hanoi. [11] Nguyen, N. A., Nguyen, D. N. (2025). Anti-corruption in Vietnam - an institutional analysis. Cogent Social Sciences, 11(1). <https://doi.org/10.1080/23311886.2025.2460320>. [12] Dung, N. D., Thanh, N. T. (2023). Private Sector Corruption in Vietnam: From Legislation to its Impact on the Economy. International Journal of Professional Business Review, 8(2), e01490. <https://doi.org/10.26668/businessreview/2023.v8i2.1490>. [13] Giang, N. K. (2024). The political economy of Vietnam’s anti-corruption campaign. In Singh, D., Ha, H. T. (Eds.), Southeast Asian affairs 2024 (pp. 375–390). Singapore: ISEAS Publishing. <https://doi.org/10.1355/9789815203516-023>. [14] Forde, A. (2022). Vietnamese Patterns of Corruption and Accumulation: Research Puzzles. Journal of Contemporary Asia, 53(2), 253-266. <https://doi.org/10.1080/00472336.2022.2037010>. [15] Nguyen, D. Q., Nhan, H. (2024). The watchdog navigates to bark: investigative reporting on corruption in Vietnam. Media Asia, 51(4), 570-593. <https://doi.org/10.1080/01296612.2024.2312658>. [16] Maslen, C. (2025). Vietnam: Corruption and anti-corruption (U4 Helpdesk Answer 2025:21). Bergen: Transparency International and U4 Anti-Corruption Resource Centre, Chr. Michelsen Institute. <https://knowledgehub.transparency.org/assets/uploads/helpdesk/Vietnam-Corruption-and-anti-corruption_250903_113041.pdf>. [17] Teramura, N., Nottage, L. (2025). Corruption-related provisions in East and South Asian investment agreements: An empirical analysis. Journal of International Economic Law, 28(2), 157-183. <https://doi.org/10.1093/jiel/jgaf013>. [18] Van, L. N., Van, A. D., Minh, A. P., Trong, A. P. (2024). The Crime of Accepting Bribes in the Hong Duc Code and Its Significance as a Model for Contemporary Criminal Law in Vietnam. International Journal of Law and Society, 7(3), 112-117. <https://doi.org/10.11648/j.ijls.20240703.13>. [19] CPV. (2021). The 13th National Delegate Congress. Hanoi: The Truth. [20] WB. (2005). Legal corruption. World Bank. <https://web.archive.org/web/20150505185227/http://siteresources.worldbank.org/INTWBIGOVANTCOR/Resources/Legal_Corruption.pdf>. [21] Minh, H. C. (1995). Complete episode, episode 5. Hanoi: National Politics. [22] CPV. (2016). The 12th National Delegate Congress. Hanoi: The Truth. [23] National Assembly. (2018). Law on Anti-Corruption (Law No. 36/2018/QH14). Hanoi. [24] Politburo. (2022). Ten-year review of anti-corruption and control of negative practices from 2012 to 2022. Tasks and solutions for the coming period. Hanoi. [25] Van, L. N., Van, A. D., Minh, A. P., Trong, A. P. (2024). The Crime of Accepting Bribes in the Hong Duc Code and Its Significance as a Model for Contemporary Criminal Law in Vietnam. International Journal of Law and Society, 7(3), 112-117. <https://doi.org/10.11648/j.ijls.20240703.13>. [26] Doan, H. N. (2025). Corruption in the non-state sector in Vietnam today and some solutions for the coming period. Journal of Communist. <https://www.tapchicongsan.org.vn/web/guest/kinh-te/-/2018/1115802/tham-nhung-trong-khu-vuc-ngoai-nha-nuoc-tai-viet-nam-hien-nay-va-mot-so-giai-phap-phong%2C-chong-thoi-gian-toi.aspx>. [27] Vu, V. H. (2025). An explanation of corruption, waste and negative practices and solutions for the current stage. State Management Journal. <https://www.quanlynhanuoc.vn/2025/05/15/luan-giai-ve-tham-nhung-lang-phi-tieu-cuc-va-giai-phap-phong-chong-tham-nhung-lang-phi-tieu-cuc-trong-giai-doan-hien-nay/>. [28] Politburo. (2022). Ten-year review of anti-corruption and control of negative practices from 2012 to 2022. Tasks and solutions for the coming period. Hanoi. [29] Bai, J., Jayachandran, S., Malesky, E. J., Olken, B. A. (2017). Firm growth and corruption: Empirical evidence from Vietnam. Oxford University Press on behalf of Royal Economic Society. The Economic Journal, 129(618), 651-677. <https://doi.org/10.1111/ecoj.12560>. [30] Anh, N. N., Minh, N. N., Tran, N. B. (2016). Corruption and economic growth, with a focus on Vietnam. Crime, Law and Social Change, 65(4), 307-324. <https://mpra.ub.uni-muenchen.de/84728/>. [31] Nguyen, D. Q., Nhan, H. (2024). The watchdog navigates to bark: investigative reporting on corruption in Vietnam. Media Asia, 51(4), 570-593. <https://doi.org/10.1080/01296612.2024.2312658>. [32] Huy, V. H., Khanh, H., Viet, H., Cuong, N. (2025). Investment under anticorruption: Evidence from the high-profile anticorruption campaign in Vietnam. Emerging Markets Review, 69. <https://doi.org/10.1016/j.ememar.2025.101360>. [33] Bui, H. T. (2019). The politics of anti-corruption and integrity system reform in Vietnam. In Human rights and peace in Southeast Asia series 4: Challenging the norms (pp. 55–72). East Asia and the Pacific. [34] Nguyen, N. A., Nguyen, D. N. (2025). Anti-corruption in Vietnam - an institutional analysis. Cogent Social Sciences, 11(1). <https://doi.org/10.1080/23311886.2025.2460320>. [35] Forde, A. (2022). Vietnamese Patterns of Corruption and Accumulation: Research Puzzles. Journal of Contemporary Asia, 53(2), 253-266. <https://doi.org/10.1080/00472336.2022.2037010>. [36] Giang, N. K. (2024). The political economy of Vietnam’s anti-corruption campaign. In Singh, D., Ha, H. T. (Eds.), Southeast Asian affairs 2024 (pp. 375-390). Singapore: ISEAS Publishing. <https://doi.org/10.1355/9789815203516-023>. [37] Nguyen, D. Q., Nhan, H. (2024). The watchdog navigates to bark: investigative reporting on corruption in Vietnam. Media Asia, 51(4), 570-593. <https://doi.org/10.1080/01296612.2024.2312658>. [38] Maslen, C. (2025). Vietnam: Corruption and anti-corruption (U4 Helpdesk Answer 2025:21). Bergen: Transparency International and U4 Anti-Corruption Resource Centre, Chr. Michelsen Institute. <https://knowledgehub.transparency.org/assets/uploads/helpdesk/Vietnam-Corruption-and-anti-corruption_250903_113041.pdf>. [39] Teramura, N., Nottage, L. (2025). Corruption-related provisions in East and South Asian investment agreements: An empirical analysis. Journal of International Economic Law, 28(2), 157-183. <https://doi.org/10.1093/jiel/jgaf013>. [40] Luong, P. V., Van, V. H. (2019). Study of the Laws under the Feudal Dynasties of Vietnam. Addaiyan Journal of Arts, Humanities and Social Sciences, 1(7). <https://aipublisher.org/article_id=87>. [41] Teramura, N., Nottage, L. (2025). Corruption-related provisions in East and South Asian investment agreements: An empirical analysis. Journal of International Economic Law, 28(2), 157-183. <https://doi.org/10.1093/jiel/jgaf013>. [42] Huy, V. H., Khanh, H., Viet, H., Cuong, N. (2025). Investment under anticorruption: Evidence from the high-profile anticorruption campaign in Vietnam. Emerging Markets Review, 69. <https://doi.org/10.1016/j.ememar.2025.101360>.
The Capabilities and Challenges of Artificial Intelligence in the Justice System
In the context of globalization, one of the key pillars for improving the effectiveness of a country’s legal system, ensuring access to justice, and enhancing the quality of legal proceedings lies in innovative and technological advancement. The ongoing global digitization process offers a broad range of services in every field, including the judiciary, enabling improved access to justice for citizens from various social backgrounds through digital transformation. It also allows the integration of artificial intelligence tools into case review and decision-making processes, making the administration of justice faster, more flexible, and efficient. Moreover, the implementation of AI technologies helps create essential tools and mechanisms that, through an integrated approach, contribute to solving global legal challenges—such as prolonged legal proceedings, overburdened judges, limited access to justice, inefficiencies in the legal system, and more. The primary purpose of artificial intelligence is to simplify administrative processes, increase transparency and efficiency in decision-making, and assist judges, prosecutors, and lawyers in processing documents. AI enables the analysis of legal documents, anonymization of court decisions, and comparison and compliance checks of contracts. These capabilities significantly reduce human error and save time. This article discusses examples from various countries where AI is applied in both legal research and the modeling of judicial proceedings. It is essential to emphasize that the successful use of this technology depends not only on its technical capabilities but also on the legal and ethical frameworks that protect citizens’ rights. Keywords: Justice system, AI, ethical challenges, analysis, regulation Introduction The process of digitalization in the judicial system accelerated significantly following the global pandemic that began in early 2020. The swift transition to remote (online) court hearings was made possible through the integrated use of justice-oriented digital technologies. This shift posed new challenges for judicial institutions in terms of effectively managing cases, analyzing evidence, ensuring secure digital communication, maintaining data security, and delivering timely justice. The technological environment of artificial intelligence provides courts with the ability to effectively utilize automated resources, adapt them to their workflows and management systems, and thus help formulate a clearer vision and strategy for delivering fast and efficient justice. In recent years, artificial intelligence has penetrated and fundamentally transformed many spheres of our lives.[1] Becoming a part of our daily routine. It is now used both in the private sector and across public institutions. Digital platforms and tools have become a kind of guarantee for the continuity of activities in all key sectors.[2] Consequently, AI is increasingly being applied in justice systems around the world—offering both opportunities and risks. Recently, critical scholarship has raised questions about the judiciary’s ability to handle the difficulties and limitations inherent in deploying AI systems.[3] This article will specifically examine what kinds of opportunities AI creates within judicial systems where it is already in use, and what risks are associated with its implementation. The term artificial intelligence was first introduced in 1956 at a seminar held at Stanford University in the United States, which focused on logical rather than computational problems.[4] Artificial intelligence can be defined as “a machine’s ability to act in a way that would be considered intelligent”. This definition belongs to John McCarthy, who is regarded as the creator of the term “artificial intelligence” and introduced it for AI in 1956.[5],[6] According to the Duden Dictionary, the term “artificial” describes the imitation of a natural process, while “intelligence” is defined as a human capacity for abstract thinking, reasoning, and purposeful action. Based on this definition, artificial intelligence can be understood as an attempt to create a simulation of human cognitive abilities.[7] Definitions of artificial intelligence also appear in the field of computer science. For example, the definition of AI as “an attempt to teach computers to think”[8] highlights the imitation of human cognitive processes by systems such as machines or computers. This perspective is reflected in the “Turing Test”,[9] developed by British scientist Alan M. Turing, which AI can only pass if it communicates with a human in natural language, acts logically, and adapts to changing circumstances.[10] The Council of Europe defines artificial intelligence as “a combination of sciences, theories, and technologies whose goal is to reproduce human cognitive abilities through machines. Given the current level of development, artificial intelligence refers to the delegation of complex intellectual tasks, normally performed by humans, to machines”.[11] According to the definition developed by the European Commission’s High-Level Expert Group on Artificial Intelligence (AI HLEG), “artificial intelligence characterizes systems that, through environmental analysis, demonstrate intelligent behavior and, to a certain degree of autonomy, carry out actions to achieve specific objectives. AI-based systems can exist in a virtual environment as fully software-based (e.g., voice assistants, image analysis software, search engines, voice and facial recognition systems), or AI can be embedded in hardware devices (e.g., advanced robots, autonomous vehicles, drones, and Internet of Things applications)”.[12] Methodology In the process of working on this research, I employed both comparative and qualitative analysis, focusing on the study of international practices and the possibilities for integrating artificial intelligence (AI) into Georgia’s justice system. The research analyzed legal approaches and practical examples from various countries, including initiatives from the Council of Europe, the European Union, and individual member states regarding the adoption of AI in judicial systems. I also reviewed findings published in high-ranking academic journals. The primary sources for data collection included binding international legal documents (e.g., the EU’s draft AI Act), the Council of Europe’s principles on the use of AI in the judiciary (CEPEJ guidelines), academic and expert analyses (including reports by the EU Agency for Fundamental Rights), and studies and public statements from organizations engaged in judicial reform. The analysis of current practices in Georgia was carried out using the Desk Research method, which involved evaluating open sources such as public policy documents, strategies, legislation, judicial reform plans, and the national AI strategy. The following areas were specifically examined: stages of digitalization in the court system, implementation and use of electronic management systems, and existing frameworks for personal data protection. The methodological approach also included the identification of ethical risks regarding algorithmic transparency, impartiality, and the necessity of human oversight in judicial decision-making. 1. Theoretical and Practical Dimensions of AI in Justice Systems “Artificial intelligence is a complex artificial cybernetic software-hardware system (electronic, including virtual, electromechanical, bio-electromechanical, or hybrid), which possesses a cognitive functional architecture and access, either independently or in relative terms, to the needed high-speed computational power”.[13] AI systems can also be differentiated based on their performance and domain of application. A common distinction in AI research is that between so-called “strong” and “weak” AI. This distinction is philosophical in nature and hinges on two hypotheses: the weak hypothesis, which claims that a system (e.g., a machine) can behave intelligently, and the strong hypothesis, which posits that such a system may possess intelligence. Analogously, a strong AI system exhibits intelligent behavior because it genuinely thinks, whereas a weak AI system only mimics intelligent behavior[14] [1-4]. A strong AI system would operate at a level equal to or beyond the capacity of the human brain. In contrast, a weak AI system is specialized in solving individual tasks and is intended to support, not replace, human cognitive effort.[15] It is important to distinguish between artificial intelligence (AI) and machine learning (ML), as ML is merely a subcategory of AI. Using them interchangeably is incorrect. ML is typically closely associated with statistics and data processing, enabling a system to improve through experience. Deep Learning (DL), another subcategory of AI, uses neural networks to process unstructured data.[16] Examples of AI use: Navigation services (e.g., Google Maps, Apple Maps); Mobile applications (e.g., Siri, Alexa, Google Assistant); Social media platforms (e.g., Facebook, Twitter, Instagram) use AI to tailor content to user interests.[17] 1.1 AI in the justice system: Transforming courts through technology AI offers a broad spectrum of possibilities for improving various sectors. AI systems are increasingly being used in judicial procedures and courtrooms around the world—from Australia, China, and the United States to the United Kingdom, Estonia, Mexico, and Brazil. These systems are being built, tested, developed, and adapted for use in courts and tribunals globally. AI has the potential to increase procedural efficiency, accuracy, and accessibility of justice. Court hearings do not require in-person presence, as communication technologies facilitate remote proceedings. Solution Explorer, for example, was used 160,527 times between July 13, 2016, and March 31, 2021. In 2020/2021, the average time to resolve a dispute using this system was 85.8 days, with a median resolution time of 59 days across all case types.[18] In China, courts use AI to warn judges if their decision deviates from precedent data in a central database.[19] AI has also demonstrated the ability to predict rulings of the European Court of Human Rights (ECHR). This tool employs natural language processing and machine learning to forecast whether a provision of the European Convention on Human Rights has been violated in a given case. The system bases its predictions on prior decisions and achieves a 79% accuracy rate in matching human judges’ outcomes.[20] Beyond these applications, AI is used during court proceedings to review and analyze documents for compliance with predefined criteria. For example, document review involves identifying relevant materials in a case, and AI can significantly enhance the speed, accuracy, and efficiency of this process. Another AI tool is contract analysis, which can assist with both general transactions and individual contracts. JPMorgan has used an AI-powered tool named COIN (Contract Intelligence) since June 2017 to interpret commercial loan agreements. A task that would typically require 360,000 lawyer hours can now be completed in seconds.[21] The Higher Regional Court of Stuttgart uses an AI tool named OLGA (Assistant of the Higher Regional Court). OLGA analyzes lower court decisions, grounds for appeal, and previously set judicial parameters. It functions as an intelligent research assistant with access to judicial rules, but it does not make decisions itself. In Bavaria, a new system will soon be tested to automate the anonymization of decisions — a task currently performed manually, and which requires significant time and human resources. Anonymization extends beyond obvious identifiers such as names and addresses to include any data that might indirectly identify an individual.[22] In the United Kingdom, the Money Claim Online (MCOL) portal has been in use since 2002 to manage claims under £100,000 without needing to enter a courtroom or hire legal representation. A separate portal, Civil Money Claims, launched in 2018, allows claims under £10,000. For 80% of surveyed users, the portal was found to be easy to use. The system first determines whether a case qualifies for the MCOL or Civil Money Claims path. If eligible, and if automatically generated documents are uploaded, the claim can be submitted for mediation or court. If the respondent agrees to pay, the claimant enters the terms of a judgment for court approval. The portal can also be used to issue enforcement orders if payment is not made.[23] Taken together, these examples show that AI has remarkable capabilities in the justice system. It can accelerate dispute resolution, improve document processing, and increase both efficiency and access to justice. 1.2 Ethical challenges and data protection concerns in AI development It is worth noting that artificial intelligence offers considerable potential and benefits, but at the same time, it is accompanied by significant ethical challenges, particularly the following: In some cases, artificial intelligence exhibits bias and discrimination, which may result in unjust outcomes. For example, in 2019, it was revealed that Apple Pay offered different credit limits for men and women. Women were granted lower credit limits and were made more vulnerable due to the algorithm Apple used. A case of algorithmic racism was also reported with Google Photos, where photos of Black individuals were just labeled “Black”.[24] Articles 7 (prohibition of discrimination) and 12 (right to privacy) of the Universal Declaration of Human Rights, along with Articles 2, 3, and 17 of the International Covenant on Civil and Political Rights, are binding on all signatory states when it comes to the use of artificial intelligence. Guidelines highlight the necessity of algorithmic transparency and openness in decision-making processes. AI-generated decisions must be predictable and require human oversight. Transparency of databases and public accessibility to the basis of their processing are essential for the development of AI in an environment regulated by ethical, moral, and legal mechanisms.[25] One of the key challenges also lies in the protection of personal data and privacy. Massive surveillance and data collection were observed in Amazon’s “Rekognition” project, which was designed for real-time human identification but faced issues concerning privacy and surveillance.[26] Privacy and data protection are closely related but distinct rights. Privacy is a fundamental right recognized, in some form, by nearly every country in its constitutions or legal frameworks. Additionally, privacy is recognized as a general human right, unlike data protection. The right to privacy and private life is enshrined in Article 12 of the Universal Declaration of Human Rights, Article 8 of the European Convention on Human Rights, and Article 7 of the EU Charter of Fundamental Rights. Data protection refers to safeguarding any information related to an identified or identifiable natural person—this includes names, birthdates, photographs, video recordings, email addresses, and phone numbers. The concept of data protection has its roots in the right to privacy, and both are important instruments for the defense of fundamental rights. Data protection serves the specific purpose of ensuring that personal data are processed (collected, used, stored) in good faith by both the public and private sectors[27] [14-17]. One example of data insecurity is the case of Cambridge Analytica, a data analytics company that unlawfully used Facebook users’ personal information during the 2016 U.S. presidential campaign. According to records, the company obtained and analyzed the data of 50 million users, which were then used to craft personalized political advertisements. For data processing to be lawful, merely having a legal basis is not sufficient. The processing of data must comply with specific principles: Fairness and lawfulness: The processing of personal data must be conducted fairly and legally. This means that data must be collected and handled in a way that does not violate the rights and dignity of the person to whom the data belong. Clear purpose: Data must be collected only for specific and legitimate purposes. Further use of the data for other purposes must be prohibited. Proportionality and adequacy: Only the amount of data necessary to achieve the intended purpose should be collected. The data must be sufficient and relevant for the purpose of processing, but not excessive. Truthfulness and accuracy: Data must be true and accurate. When necessary, data must be updated, their reliability checked, and incorrect or inaccurate information corrected. Storage limitation: Personal data should only be retained for the time necessary to achieve the stated purpose. Once the purpose has been fulfilled, the data must either be deleted or stored in a form that no longer allows identification of the individual. Another major challenge of artificial intelligence is the issue of accountability: who should be responsible for harm caused by the actions of AI—the manufacturer, the user, or the AI itself? Legally, this is a complex question. Responsibility is generally based on wrongful conduct that causes harm. Since the manufacturer is closest to the decision-making around AI development, they are typically held responsible for defects. However, there are exceptions, such as in cases involving medical harm or damage caused by autonomous vehicles. In cases involving medical harm, it is important to investigate whether the physician, who relied on AI for diagnostics, exercised the necessary level of care. In instances of damage caused by autonomous vehicle operation, liability generally falls on the driver, since they are the one who activates and uses the self-driving function. The driver is considered legally responsible for the vehicle even if they are not physically steering it.[28] This section presents the challenges that, according to current data, may be associated with artificial intelligence. Alongside these challenges, AI also offers possibilities and potential to solve repetitive, labor-intensive tasks more quickly and efficiently. This, in turn, frees up human resources to focus on more complex and creative tasks. AI also has the capacity to play an important role in disease diagnosis and to be used in environmental protection. However, to eliminate the challenges mentioned above, it is essential that the development of artificial intelligence takes ethics into account. Building trustworthy AI: Legal frameworks and human rights considerations Integrating ethical principles into the development of artificial intelligence is crucial to ensuring that AI tools have a positive impact on society. For users and affected individuals, AI systems are often neither understandable nor transparent in terms of how decisions or outcomes are reached. Among other concerns, the decisions must be understandable for AI systems to be perceived as trustworthy and legally compliant. Additionally, effective safeguards must be in place to protect against discrimination, manipulation, or other harmful applications.[29] Considering the circumstances mentioned above, a foundation has been established for ethical standards governing the use of artificial intelligence. According to these standards, the use of AI must always be based on fundamental human rights, which are legally binding under EU treaties and the EU Charter of Fundamental Rights. Above all, these include respect for human dignity, personal freedom, democracy, the rule of law, equality, non-discrimination, and solidarity. In June 2018, the High-Level Expert Group (HLEG), established by the European Commission, published its ethical guidelines on trustworthy artificial intelligence. The goal of these guidelines is to promote trustworthy AI, which should be characterized by three components throughout its entire lifecycle:[30] It must be lawful and, therefore, comply with all applicable laws and regulations. It must be ethical and, therefore, respect ethical values and principles. It must be robust, both from a technical and social perspective. In this way, the HLEG provides recommendations for supporting and ensuring ethical and robust artificial intelligence, and it promotes the integration of AI systems into socio-technical environments. The 52-member expert group believes that the use of artificial intelligence has the potential to profoundly transform society: “Artificial intelligence is not an end in itself, but a promising means to enhance human flourishing and, by extension, individual and societal well-being, as well as to promote progress and innovation”. Based on the European Union’s guiding principles, the Organization for Economic Co-operation and Development (OECD), an international body composed of 36 member states, primarily from Europe and North America, also developed its own set of AI principles. The OECD aims to promote innovative and trustworthy AI that respects human rights and democratic values. The group of AI experts formulated five key recommendations:[31] Artificial intelligence should be beneficial to people and the planet by supporting inclusive growth, sustainable development, and the improvement of quality of life. AI systems should be designed in a way that respects the rule of law, human rights, democratic values, and diversity. They must also ensure appropriate safeguards, such as human intervention where necessary, with the aim of promoting a fair and just society. AI systems must ensure transparency and responsible disclosure so that individuals can understand and question outcomes produced by AI. AI systems should function securely and reliably throughout their lifecycle, with ongoing assessment and mitigation of potential risks. Organizations and individuals developing, deploying, or operating AI systems should be held accountable for their proper functioning in line with the above principles. The OECD document encourages member governments to support both public and private investment in research and development to drive innovation in trustworthy AI, and to create policy environments that enable the safe and responsible deployment of AI systems. In principle, cross-border and cross-industry cooperation will be necessary to advance responsible AI governance.[32] At the same time, AI systems must ensure compliance with data protection standards throughout their entire lifecycle. This includes both the information provided initially by users and the data generated about users through their interactions with the system.[33] According to UNESCO (the United Nations Educational, Scientific and Cultural Organization), the world must harness the positive potential of artificial intelligence to achieve the Sustainable Development Goals, foster knowledge societies, and promote socio-economic progress.[34] Based on all that has been said above, the information presented underscores the vital role of ethics in the development of artificial intelligence. It is extremely important that decisions made with the assistance of AI are transparent, understandable, and compliant with legal standards. This is essential for building trust, protecting fundamental human rights, and ensuring that the use of AI systems aligns with the real needs of society. Results and discussion The legal regulation of artificial intelligence is essential for introducing ethical standards and managing its impact on society. Appropriate regulations help minimize risks and maximize opportunities. This section will review existing laws, regulations, and initiatives. In October 2022, the White House released “The Blueprint for an AI Bill of Rights”, which outlines five key principles intended to protect the rights of the American public in the era of artificial intelligence. Safe and effective systems: AI systems must be protected from harmful or ineffective technologies. This includes developing systems based on broad consultations to identify and reduce potential risks. Systems should undergo pre-deployment testing and ongoing monitoring to ensure their safety and effectiveness. Protection against algorithmic discrimination: AI systems must be designed to prevent algorithmic discrimination, meaning they should avoid unjustified disparate treatment. Designers and developers should take steps to ensure systems are fair and protect individual rights without exception. Data privacy: Data protection must be a top priority. AI systems must be designed to safeguard privacy and obtain users’ consent for data use. Proper and secure data handling and confidentiality must be guaranteed. Notice and explanation: Users must be informed when AI systems are in use and how they influence outcomes. Systems should provide clear explanations so that individuals understand how decisions are made. Human alternatives, consideration, and fallback: Users should have the option to decline automated systems and request human review and correction when needed. Human involvement should be ensured, especially in high-risk scenarios.[35] Additionally, on January 6, 2023, the Council of Europe’s Committee on Artificial Intelligence published a draft convention on AI, human rights, democracy, and the rule of law. The first part of the convention covers general provisions. Article 1 defines the purpose and scope of the convention, which is to establish fundamental principles, rules, and rights to ensure that the design, development, and use of AI systems are fully aligned with human rights, the functioning of democracy, and the rule of law. Article 2 contains definitions, Article 3 outlines the principle of non-discrimination, and Article 4 defines the scope of the convention—namely, that it applies to the design, development, and use of AI systems. The second part of the draft convention concerns the use of AI tools by public authorities. Article 5 outlines the obligations of state bodies: the use of AI systems must fully respect human rights and fundamental freedoms. Any interference with these rights and freedoms by public authorities or private entities acting on their behalf, resulting from the use of AI systems, must align with the fundamental values of democratic societies, be based on law, and be necessary in a democratic country in pursuit of legitimate public interests. Article 6 addresses respect for human rights, while Article 7 covers respect for democratic institutions and the rule of law. Chapter III concerns the use of AI tools in the provision of goods and services. Chapter IV addresses the fundamental principles of AI system design, development, and deployment. Chapter V focuses on measures and safeguards that ensure accountability and redress. Chapter VI discusses the assessment and mitigation of risks and adverse impacts. Chapter VII outlines provisions for cooperation, stating that parties shall consult with each other to support or improve the effective implementation and application of the convention. Chapter VIII contains the final provisions.[36] The Organization for Economic Co-operation and Development (OECD) has developed 12 core principles that should guide the use of artificial intelligence tools. Specifically: Openness, transparency, and inclusiveness; Participation in decision-making and service delivery; Development of a public sector based on data analysis; Protection of personal privacy and ensuring security; Clarification of the responsibilities of political leadership; Consistent use of digital technologies; Development of coordination mechanisms; Strengthening international cooperation; Support for business development; Enhancement of project management capacities for modern technologies; Procurement of digital technologies; Establishment of an appropriate legal framework for digital technologies.[37] On June 8, 2024, the European Union issued the first official regulation on artificial intelligence. This act aims to ensure the safety, fairness, and accountability of AI systems. The EU AI regulation is based on several core goals and principles that seek to promote the safe and ethical use of AI systems. The regulation’s primary objectives include system safety and effectiveness, protection of users’ health and safety, and transparency and fairness of AI-driven decisions. The regulation requires that AI systems be transparent and appropriate, and that users have full access to information about how these systems operate.[38] Conclusion Artificial intelligence is increasingly dominating the global landscape, making the integration of ethics essential for maximizing its positive impact and minimizing negative outcomes. This article has demonstrated that AI holds significant potential to improve judicial systems. However, it has also highlighted key ethical challenges, including bias, discrimination, and concerns around data protection and privacy. The future of artificial intelligence and ethics will be shaped by expanded research in ethical domains, stricter regulatory frameworks, and greater public awareness of the issues at stake. Ethics is an inseparable part of AI development, and the responsibility of developers in this regard is becoming increasingly emphasized. Ultimately, the challenge lies in harnessing the power of AI to promote human well-being and progress without compromising human ethics and dignity. This requires continuous, informed, and inclusive dialogue about the ethical questions AI raises to ensure a just and responsible AI future. According to recent studies, as of today, the Georgian justice system does not yet incorporate AI tools, nor does it have the necessary ethical or legal frameworks in place. Therefore, it is essential for the country to prioritize the development of an ethical framework that ensures the protection of fundamental human rights in the use of AI. At the same time, it is necessary to gradually introduce AI technologies into the justice system, which would contribute to streamlining processes, increasing transparency in decision-making, and alleviating pressure on an overburdened system. References Scientific Literature: Dias, S. A. de J., Sátiro, R. M. (2024). Artificial intelligence in the judiciary: A critical view. Futures, 164, Article 103493. Available at: <https://doi.org/10.1016/j.futures.2024.103493>; Donahue, L. (2018). A primer on using artificial intelligence in the legal profession. Jolt Digest. Available at: <http://jolt.law.harvard.edu/digest/a-primer-on-using-artificial-intelligence-in-the-legal-profession> (Last access: 28.09.2023); Gabisonia, Z. (2022). Internet law and artificial intelligence. Tbilisi: World of Lawyers; Haugeland, J. (1985). Artificial Intelligence: The Very Idea. s.l.: MIT Press; Nilson, N. J. (2010). The Quest for Artificial Intelligence. Cambridge: University Press; Reiling, A. D. (Dory). 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SRD Rechtsanwälte Blog. Available at: <https://www.srd-rechtsanwaelte.de/blog/kuenstliche-intelligenz-haftung> (Last access: 01.10.2023). Footnotes [1] Deutsche UNESCO-Kommission. (2022). DUK Broschüre KI-Empfehlung (Recommendation on AI (ethics)). Available at: <https://www.unesco.de/sites/default/files/2022-03/DUK_Broschuere_KI-Empfehlung_DS_web_final.pdf>. [2] Government of Georgia. (2023). Guiding principles of the national strategy of Georgia on artificial intelligence. Tbilisi: Government of Georgia. [3] Dias, S. A. de J., Sátiro, R. M. (2024). Artificial intelligence in the judiciary: A critical view. Futures, 164, Article 103493. Available at: <https://doi.org/10.1016/j.futures.2024.103493>. [4] Sidamonidze, N. (2019). Artificial intelligence as a challenge and some methodological aspects of its implementation. Tbilisi: Georgian Technical University. [5] European Commission. (2019). Ethics Guidelines for Trustworthy AI. Publications Office of the European Union. Available at: <https://digital-strategy.ec.europa.eu/en/library/ethics-guidelines-trustworthy-ai>. [6] Reiling, A. D. (Dory). (2020). Courts and Artificial Intelligence. International Journal for Court Administration, 11(2), Article 8. Available at: <https://doi.org/10.36745/ijca.343>. [7] DIN/DKE. (2020). Ethik und Künstliche Intelligenz: Was können technische Normen und Standards leisten? (White paper). Berlin: DIN. Available at: <https://www.din.de/resource/blob/754724/00dcbccc21399e13872b2b6120369e74/whitepaper-ki-ethikaspekte-data.pdf>. (In German). [8] Haugeland, J. (1985). Artificial Intelligence: The Very Idea. s.l.: MIT Press. [9] Turing, A. (1950). Computing machinery and intelligence. s.l.: Mind. [10] Russell, S. J., Norvig, P. (2010). Artificial Intelligence. s.l.: Pearson Education Inc. [11] Council of Europe. Artificial Intelligence. Available at: <https://www.coe.int/en/web/artificial-intelligence/glossary>. [12] High-Level Expert Group on Artificial Intelligence. European Commission. Available at: <https://ec.europa.eu/futurium/en/ai-alliance-consultation>. [13] Gabisonia, Z. (2022). Internet law and artificial intelligence. Tbilisi: World of Lawyers, p. 446. [14] Russell, S. J., Norvig, P. (2010). Artificial Intelligence. s.l.: Pearson Education Inc. [15] Nilson, N. J. (2010). The Quest for Artificial Intelligence. Cambridge: University Press. [16] Goderdzishvili, N. (2020). Artificial Intelligence: Essence, International Standards, Ethical Norms and Recommendations (policy document), Tbilisi: Information Freedom Development Institute (IDFI). Available at: <https://www.idfi.ge/public/upload/Article/1111Artificial-Intelligence-GEO_Web%20Version.pdf>. (In Georgian). [17] Geekflare Team. (2025). 10 Beispiele für Künstliche Intelligenz (KI) im täglichen Leben (Article). Geekflare. Available at: <https://geekflare.com/de/daily-life-ai-example/> (Last access: 20.09.2025). [18] AI Decision-Making and the Courts, A guide for Judges, Tribunal Members and Court Administrators. (2022). [19] Ibid. [20] Reiling, A. D. (2020). Courts and Artificial Intelligence. [21] Donahue, L. (2018). A primer on using artificial intelligence in the legal profession. Jolt Digest. Available at: <http://jolt.law.harvard.edu/digest/a-primer-on-using-artificial-intelligence-in-the-legal-profession> (Last access: 28.09.2023). [22] Pfleger, L. Was kann KI an den Zivilgerichten. Available at: <https://www.lto.de/recht/justiz/j/justiz-ki-kuenstliche-intelligenz-e-akte-digitalisierung-zivilgerichte/> (Last access: 28.09.2023). [23] AI Decision-Making and the Courts, A guide for Judges, Tribunal Members and Court Administrators (2022). [24] CMS Germany. (2023). Wie diskriminierend ist künstliche Intelligenz? CMSHS Bloggt. Available at: <https://www.cmshs-bloggt.de/rechtsthemen/sustainability/sustainability-social-and-human-rights/wie-diskriminierend-ist-kuenstliche-intelligenz/> (Last access: 30.09.2023). [25] Goderdzishvili, N. (2020). Artificial Intelligence: Essence, International Standards, Ethical Norms and Recommendations (policy document), Tbilisi: Information Freedom Development Institute (IDFI). Available at: <https://www.idfi.ge/public/upload/Article/1111Artificial-Intelligence-GEO_Web%20Version.pdf>. (In Georgian). [26] Snow, J. (2018). Amazon’s Face Recognition Falsely Matched 28 Members of Congress with Mugshots. American Civil Liberties Union. Available at: <https://www.aclu.org/news/privacy-technology/amazons-face-recognition-falsely-matched-28> (Last access: 30.09.2023). [27] European Data Protection Supervisor. (n.d.). Datenschutz. Available at: <https://edps.europa.eu/data-protection/data-protection_de> (Last access: 30.09.2023). [28] SRD Rechtsanwälte. (2024). Künstliche Intelligenz (KI) – wer haftet, wenn ein Roboter versagt? SRD Rechtsanwälte Blog. Available at: <https://www.srd-rechtsanwaelte.de/blog/kuenstliche-intelligenz-haftung> (Last access: 01.10.2023). [29] DIN/DKE. (2020). Ethik und Künstliche Intelligenz: Was können technische Normen und Standards leisten? (White paper). Berlin: DIN. Available at: <https://www.din.de/resource/blob/754724/00dcbccc21399e13872b2b6120369e74/whitepaper-ki-ethikaspekte-data.pdf>. (In German). [30] High-Level Expert Group on Artificial Intelligence. (2019). Ethics guidelines for trustworthy AI. Brussels: European Commission. Available at: <https://digital-strategy.ec.europa.eu/en/library/ethics-guidelines-trustworthy-ai>. [31] OECD. Organisation für wirtschaftliche Zusammenarbeit und Entwicklung. Artificial Intelligence. OECD Principles on AI. (Online). Available at: https://www.oecd.org/going-digital/ai/principles/. [32] Ethik und Künstliche Intelligenz: Was können technische Normen und Standards leisten. Available at: <https://www.din.de/resource/blob/754724/00dcbccc21399e13872b2b6120369e74/whitepaper-ki-ethikaspekte-data.pdf>. [33] High-Level Expert Group on Artificial Intelligence. (2019). Ethics guidelines for trustworthy AI. Brussels: European Commission. Available at: <https://digital-strategy.ec.europa.eu/en/library/ethics-guidelines-trustworthy-ai>. [34] UNESCO. (2019). On a Possible Standard-Setting Instrument on the Ethics of Artificial Intelligence. Available at: <https://unesdoc.unesco.org/ark:/48223/ pf0000369455>. [35] The White House. (2022). Blueprint for an AI Bill of Rights: Making automated systems work for the American people. Washington, DC. Available at: <https://www.whitehouse.gov/wp-content/uploads/2022/10/Blueprint-for-an-AI-Bill-of-Rights.pdf> (Last access: 01.10.2023). [36] Committee on Artificial Intelligence (CAI). Available at: <https://rm.coe.int/cai-2023-01-revised-zero-draft-framework-convention-public/1680aa193f>. (Last access: 01.10.2023). [37] OECD. Available at: <https://www.oecd.org/governance/digital-government/toolkit/12principles/> (Last access: 01.10.2023). [38] European Parliament. (2023). EU AI Act: First regulation on artificial intelligence. Available at: <https://www.europarl.europa.eu/topics/en/article/20230601STO93804/eu-ai-act-first-regulation-on-artificial-intelligence>.
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Human Safety as a New Principle of International Cooperation
Human safety (HS) is a relatively new doctrine that emerged at the end of the 20th century. It arose from the need to address global threats and to better understand worldwide problems. Human safety is a human right; it refers to the safety of people and communities, as opposed to that of states. The concept of human security recognizes several dimensions of safety, including freedom from fear, freedom from want, and freedom from indignity. Our study concerns the concepts of individual entitlements and individual safety, which are strongly supported in the discourse of international law. The safety of individuals has long been a central concern of the global community, first through the League of Nations and later under the United Nations. The concept of universal individual entitlements has opened the way for new rules in international law. Safeguarding these basic entitlements is no longer solely the responsibility of an individual’s state; it has become a shared interest of the entire international community. From this perspective, we call for recognizing the concept of individual safety as a customary rule capable of stopping the continuous attacks on humanity. Keywords: Human safety (HS), emergence, international law, aggression, international community, cooperation. Introduction The ideological struggle imposed by the Cold War, along with the threat of nuclear weapon use, has given way to more fundamental but no less significant concerns. The scourges of disease, hunger, crime, political repression, natural disasters, and terrorism have become an integral part of individuals’ daily realities. The focus of our research centers on two concepts that warrant clear definition: human entitlements (HR) and human safety (HS), the latter progressively emerging in the global discourse on the safeguarding of fundamental individual entitlements and individual dignity. In this context, the concept of the “universalization of individual entitlements” has paved the way for the emergence of a new norm in international law, whereby the safeguarding of an individual’s fundamental entitlements no longer rests solely with the authority of the state of which they are a national, but concerns the global community. Thus, the question arises as to whether the emergence of the concept of human safety (HS) as a new customary rule could generate sufficient practice to curb the recurrent violations against humanity. Methodology The study relies on a doctrinal legal analysis of primary international instruments (UN Charter, Universal Declaration of Human Rights, ICCPR/ICESCR, Geneva Conventions and Additional Protocols) and “soft law” documents (ICISS/R2P reports, UNDP/CHS frameworks). It also applies the historical method to trace the evolution from state-centric security to the concept of human security. In addition, a comparative policy analysis is employed to assess regional frameworks (EU, AU, Arab League) and institutional practices (UN Security Council, IMF/World Bank). The article combines descriptive and analytical synthesis, drawing on primary sources (international treaties, UNGA and UNSC resolutions, ICJ jurisprudence such as the Nicaragua case) and authoritative academic and agency reports, to formulate normative recommendations on codifying and operationalizing human security. The research does not use quantitative empirical methods; its focus is on conceptual delimitation (HS–HR; HS–R2P) and policy implications. 1. Clarification of the Concepts of Human Safety (HS) and Human Entitlements (HR) 1.1 The naturalization of man and his entitlements The notion of HS and HR stems from natural law theory as articulated by Grotius and is defined as a set of prerogatives inherent to every individual. According to Nicolas Valticos, “the concept of HR extends beyond the entitlements of individuals to encompass entitlements that man can and must enjoy either directly or through the communities to which he belongs”. Furthermore,[1] Amartya Sen adds that “The concept of HR is fundamentally normative, which means that it is not clear which specific freedoms are so important that society must recognize, safeguard, and promote them as HR. This is where the idea of HS can really help by showing how important it is to not have basic factors of unsafety, both new and old”.[2] In other words, HS redirects the global safety discourse toward the core of individual dignity, the recognition of public freedoms, inherent individual entitlements, and the responsibilities of states and intergovernmental organizations to ensure the effective respect of these entitlements. Indeed, HR has historically been established with reference to the natural right to safety; therefore, all states are required by law to abide by their normative principles, whether they are in conflict or at peace. A significant development is the emergence of a universally recognized principle, abstract in nature, yet endowed with absolute value: individual dignity. It represents the primary and fundamental intuition underlying HR and serves as the foundational reference that gives meaning to all other entitlements. It is this principle that legitimizes the very concept of HR.[3] According to Yves Madiot, HR are subjective entitlements that reflect, within the legal framework, the natural principles of justice that underpin the person.[4] In this regard, the Universal Declaration of HR (UDHR) of 1948 rightly asserts that “All people are born free and equal in entitlements and dignity, and they all have reason and conscience”.[5] It is based on this premise regarding the universal attributes of individual nature that a new understanding of a decent life has been shaped. These shared attributes translate into common needs inherent to the individual person and dignity, capable of ensuring the conditions necessary for a decent life. Regarding these needs intrinsic to the individual being, two main categories can be distinguished, corresponding to the first two generations of HR: fundamental freedoms (linked to the respect of civil and political entitlements) and a minimum level of economic safety, or subsistence[6] (guaranteed by the respect of economic entitlements). Without the fulfillment of these universal primary needs, individual dignity is difficult to conceive.[7] It is observed that the concept of HR encompasses a range of fundamental entitlements essential for a minimally decent life, Including, The rights to life, personal safety, including physical integrity, freedom from torture and other cruel, inhuman, or degrading treatment, equality before courts and tribunals, freedom from slavery, protection from systematic and harmful discrimination and persecution, and freedom of thought, conscience, and religion are just a few examples; and, finally, the right to property. Regarding economic entitlements,[8] it is clear that the concept of HR is dynamic and evolving, with the list and scope of these entitlements expanding as new entitlements are frequently added to existing ones. The question then arises: can HS be considered one of these entitlements? 1.2 The concept of human safety (HS) 1.2.1 Definition of the concept According to the Robert dictionary, safety is defined as the absence of actual danger, poverty, and any apprehension. The concept of HS is therefore founded on the principles of individual emancipation liberating individuals from fear and want, and social justice.[9] However, the initial idea of HS dates to the eighteenth century, when thinkers had already developed ideas concerning the safeguarding of individuals. At the global level, controversy remains intense. HS may be perceived as reflecting a global willingness to intervene, potentially disregarding the principle of state sovereignty when populations are in distress.[10] It is important to emphasize that this concept intensifies the debate surrounding one of the most contentious issues in global politics since the end of the Cold War: the “right or duty of humanitarian intervention”.[11] This issue confronted the global community in the early 1990s in response to the tragedies in Kurdistan, Somalia, Rwanda, and the former Yugoslavia. The debate on humanitarian intervention gained renewed prominence in the 1990s, particularly in the wake of crises in Rwanda and the former Yugoslavia, and was strongly advanced by French jurist Mario Bettati, who theorized the “right of intervention” as a novel transformation of the global order.[12] The concept revitalizes and enriches this debate by providing new foundations, which have contributed to the emergence of a developing normative framework embodied in the “Obligation to Safeguard”.[13] This idea says that sovereign states must safeguard their citizens from disasters that could have been avoided. If they can’t or won’t do this, the global community is responsible for doing so.[14] Recent scholarship reinforces this link: as Lau (2023) argues, operationalizing Human Security provides the analytical lens to detect risks to individuals, while the Responsibility to Protect supplies the political and legal duty to act upon those risks, thereby making the two concepts mutually reinforcing in both theory and practice.[15] The reports of the Global Commission on Intervention and State Sovereignty (ICISS) in 2001 introduced an innovative approach by seeking to resolve the theoretical debate between proponents of state sovereignty and advocates of intervention for civilian protection purposes.[16] In this context, can we assert that the obligation to safeguard, a necessary complement to the concept of HS, is intrinsically linked to the exercise of state sovereignty?[17] As a corollary to this premise, what are the criteria or conditions that objectively qualify the obligation to safeguard as a guiding principle for the implementation of such safety? 1.2.2 Birth and evolution of “human safety” (HS) The concept of safety lies at the foundation of modern state theory, particularly since the primary mission of the state is to safeguard members of the community, who, in return, owe it allegiance.[18] The right to safety is enshrined in Article 2 of the French Declaration of the Entitlements of Man and of the Citizen of 1789, affirming it as a natural and inalienable right.[19] The notion of safety was also central to a broad spectrum of philosophical discourse and to principles governing warfare. 1.3 Philosophical origins of human safety (HS) The initial conception of HS dates to the eighteenth century, when thinkers began to focus on the safeguarding of individuals. Many fundamental principles of HS draw on the reflections of Montesquieu, Rousseau, Smith, and Condorcet. Montesquieu emphasized liberty and the subjective entitlements of individuals rather than the safety provided by the state. For Adam Smith, safety meant safeguarding against “violent and sudden attacks upon the person or property”.[20] Condorcet described a social contract in which the safety of individuals was the foundational principle; in his view, if individuals live in fear, they cannot effectively participate as members of a political community.[21] However, these liberal convictions were not universally accepted. Thinkers such as Hobbes, Kant, and Grotius argued that the state’s monopoly on violence was the best means to end anarchy and prevent the law of the strongest from prevailing. For Hobbes, safety is synonymous with civil peace, under whose safeguarding the parties to the “social contract” enjoy their natural entitlements.[22] He argued that the state of nature was essentially a form of anarchy characterized by the domination of the strong over the weak, ultimately resulting in a perpetual state of war. Everyone is driven by a desire for power and the capacity to ensure self-preservation. Indeed, the primary purpose of the social contract is to escape this anarchic condition and guarantee safety.[23] According to Rousseau, however, the state of nature is portrayed in a more peaceful light. Man enjoys perfect freedom, and the exercise of this freedom by each individual leads to equality. For Rousseau, the establishment of civil society necessarily requires the conclusion of a “social contract” that serves not only to ensure safety for individuals but also to create a political society. Moreover, the social contract represents a voluntary submission to a law to which all have consented, as everyone retains a portion of sovereignty.[24] Kant was worried about the role of the state in keeping people safe. He imagined a higher authority: a world society based on the moral duty of the common good for its member nations. Grotius thought that the shared interests of independent states should safeguard everyone.[25] It can be said that the influence of these philosophical currents on the notion of HS is reflected in early treaties concerning the safeguarding of individuals, particularly the Geneva Conventions of April 24, 1863, which represented the first attempts to codify the laws and customs of war. From traditional safety to human safety (HS) Historically, safety primarily depended on relations between groups of states. In this traditional framework, the concept of the balance of power played a critical role in ensuring the safety of populations. States were viewed as rational entities, and safety was understood chiefly as safeguarding against invading armies.[26] These ideas were incorporated into the Covenant of the League of Nations, which further developed the concept of safety, later upheld by the United Nations. The UN legally prohibited any state from resorting to force in global relations for the first time (Articles 2 and 4). Indeed, the traditional conception of safety remained essentially military and state-centric until the 1980s.[27] Following the fall of the Berlin Wall and the end of the Cold War, the acceleration of economic globalization prompted a reevaluation of the meaning of safety.[28] As Durand (2003) observes, this shift illustrates the coexistence of different approaches to security—state-centered, military definitions on the one hand, and human-centered, multidimensional perspectives on the other.[29] This new perspective calls for addressing not only the physical safety of individuals but also their economic and social well-being, as well as respect for their dignity and values as individual beings.[30] Consequently, the concept of safety is grounded in the principles of individual emancipation by “liberating from fear and want” and social justice.[31] Thus, the focus has shifted from state safety to the safety of individuals. 1.4 Human safety (HS) in its broad and narrow senses Since the last decade of the 1900s, Kofi Annan, the Secretary-General of the United Nations, has talked about making the idea of HS clearer in his Report on the Organization’s Activities. He said that it is no longer enough to say that collective safety is just the absence of armed conflict, whether it is between countries or within a country. HR abuses, huge population movements, global terrorism, the AIDS pandemic, drug and arms trafficking, and environmental disasters all directly threaten our safety. This means we need to work together on a lot of different issues.[32] Within this context, the concept of “HS” centers the individual in the analysis, focusing on threats to the individual’s well-being and physical safety.[33] It makes clear that the goal of HS is to safeguard the most important parts of people’s lives in a way that makes it easier for people to exercise their entitlements and grow.[34] The broadest definition of HS was formulated in 1994 by the United Nations Development Programme (UNDP), Jorge Nef, and the Commission on Human Safety (CHS). A key point emphasized by the UNDP is the dual focus on first, safeguarding against chronic threats such as famine, disease, and repression; and second, safeguarding against sudden, violent events that disrupt everyday life.[35] In this UNDP definition, HS is linked to seven dimensions, each corresponding to specific types of threats: Economic stability, threatened by poverty; Food stability, threatened by famine; Health safety, threatened by injury and disease; Environmental safety, threatened by pollution, environmental degradation, and resource depletion; Personal stability, threatened by various forms of violence; Political safety, threatened by repression; Community safety, threatened by instability and civil unrest.[36] Regarding the second point, HS in its broader sense is reflected in the priority given to the “vital essentials of individuals”, a fundamental element that distinguishes HS from individual development.[37] As David and Rioux (2001) argue, the notion of human safety represents a new conception of international relations, one that redefines global security by centering the individual rather than the state.[38] It should be emphasized that HR and HS exist in a synergistic relationship. HS helps identify entitlements that are at risk in a specific context, while HR provides guidance on how HS should be safeguarded.[39] This relationship was articulated during a seminar organized in 2001 in Costa Rica by the CHS, in response to the call of the United Nations Millennium Summit by Secretary-General Kofi Annan. Addressing two major themes, the unsafety caused by conflict and violence on one hand, and the connections between safety and development on the other Commission was tasked with developing a concept of HS that could serve as a practical tool for the development and implementation of policies. Based on this mandate, the Commission was asked to propose a concrete program of recommendations to address the most critical and widespread threats to HS.[40] After this call, the CHS said that “HR and the qualities associated with individual dignity make up a conceptual reference point and a normative framework that are necessary to comprehend and implement the HS notion”. Likewise, whilst recognizing that the standards and tenets of global civilian protection law are crucial elements in understanding HS, the Commission emphasized that HS cannot be confined solely to current or past armed conflict situations. Rather, HS is a concept that must be applied universally.[41] Furthermore, recent publications by the UN Office on Human Security underscore new debates and implementation trends in Human Security, emphasizing interconnected crises—such as climate change, inequalities, displacement, health-system fragility—and reaffirming the necessity for global cooperation to address them. For instance, UNDP’s 2024 informal plenary meeting highlighted how a “human security lens” can help in formulating early warning systems and structuring policy responses that integrate prevention, protection, and dignity.[42] As highlighted by the UNDP (2022) Special Report on Human Security: New Threats to Human Security in the Anthropocene, “people’s sense of safety and security is at a low in almost every country, including the richest countries, despite years of upward development success”. This finding illustrates that despite decades of development progress, insecurity remains pervasive, reinforcing the urgency of embedding HS as both an analytical lens and a guiding principle of international cooperation.[43] However, the narrow interpretation of the concept of HS focuses primarily on violent threats directed at individuals. This limited definition constrains the scope of HS to specific parameters, such as drug trafficking, small arms proliferation, landmines, ethnic conflicts, terrorism, individual trafficking, or state failure, as noted by former Canadian Foreign Minister Lloyd Axworthy. Addressing these threats relies chiefly on diplomatic resources, economic persuasion, intelligence gathering, and information technologies.[44] In fact, most significant advancements made under the banner of HS have been based on this restricted understanding. Examples include the Mine Ban Treaty, the establishment of the Global Criminal Court (ICC), as well as recent global initiatives concerning child soldiers, small arms control, and the role of non-state actors in conflicts, all of which reflect the narrow interpretation of the HS principle.[45] Ultimately, it is important to observe that the globalization of risks and threats, the complexity of conflicts, terrorist attacks, and mass civilian massacres have driven the global community to develop legal instruments addressing three key dimensions of the issue: The safety of populations as a legitimate legal concern; Safeguarding as an obligation that is both moral and legal; Obligation as a political principle intrinsically linked to the exercise of sovereignty.[46] 2. The Global Safeguarding of Human Entitlements (HR): An Obligation That Is Both Moral and Legal 2.1 Human safety (HS) in global relations 2.1.1 Human safety (HS) as a new principle of global cooperation HS can therefore be understood as a fundamental link between the various objectives of the United Nations, creating an obligation for Member States to cooperate in advancing these goals coherently. On this basis, HS helps identify HR that may be at risk in specific situations. It provides new tools and drives significant changes in global practice. In this regard, strengthening global peace is a universal necessity in addressing the challenges of safety and development. It follows that the participation and engagement of all members of the global community, whether states, non-governmental organizations, or other civil society actors, are essential obligations to achieve a HS framework.[47] It is important to note that several norms, principles, and institutions are already established; for example, civilian protection assistance during natural disasters and the safeguarding of war victims are key components of enhancing HS worldwide. Thus, it is crucial to emphasize that this concept is shaping a body of global law that will no longer regulate solely the relations between states under a neutral respect for state sovereignty but will instead defend values and solidarities that prioritize the sovereignty of individuals over that of the state.[48] In other words, the concept of HS serves as a framework for reevaluating the contemporary meaning of sovereignty, introducing an emerging new logic within global law. According to the 1994 Individual Development Report, “the time has come to shift from a conception of safety centered on conflicts between countries over territorial integrity to one that addresses the insecurities arising from the daily concerns of the majority of the world’s population”.[49] One might argue that the notion of HS reverses the traditional logic of state sovereignty, transforming governments into instruments of citizens aimed at enhancing the well-being of the population.[50] Sovereignty no longer simply denotes the imposition of power but extends to the obligation to safeguard a people within a territory through respect for the law and the effective functioning of the justice system, alongside the reconstruction of the socio-economic framework of the society concerned. To achieve these objectives, the ICISS[51] Sovereignty encourages states to adopt the principle of the obligation to safeguard, according to which the global community may intervene to prevent mass violations of HR or to alleviate the suffering of victims in the event of conflict or natural disaster. These ideas were already articulated by the United Nations Secretary-General in his March 2000 report, where he stated: “While civilian protection intervention constitutes an unacceptable infringement on sovereignty, how should we respond to situations such as those witnessed in Rwanda or Srebrenica, where there have been blatant, massive, and systematic violations of HR, in direct contradiction to the fundamental principles on which our shared humanity is founded?”[52] Similarly, the 2005 World Summit Outcome Document introduced a renewed vision of HS and established a collective global obligation to safeguard HR in the face of genocide, ethnic cleansing, and crimes against humanity.[53] It is important to emphasize that this obligation primarily lies with states; however, in cases of unwillingness or incapacity to act, the global community may step in to address these failures and intervene to halt widespread violations of HR.[54] Thus, respect for HR and humanitarian law forms the foundational pillars of the concept of HS. “As highlighted by the Global Centre for the Responsibility to Protect, ‘R2P is essentially about preventing and protecting people from the most heinous atrocity crimes – genocide, war crimes, ethnic cleansing and crimes against humanity… The grim reality of today’s ongoing crises is a stark reminder of the need to redouble efforts to effectively implement the responsibility to protect”.[55] 2.1.2 The legal framework of the concept of human safety (HS) The Human Safety Network (HSN) currently lacks formal sources that would integrate the concept into positive law, but it is possible to link the concept to formal global legal instruments, such as: United Nations instruments related to peace and human safety (HS) The safety of individuals has always been a central concern for the global community. Initially through the League of Nations and now under the United Nations, which, in its preamble, explicitly identifies HS as one of its core objectives in its founding resolution. The Charter states: “We, the people of the United Nations, are determined to safeguard future generations from the horrors of war, which has brought great sadness to people twice in our lifetime, and to reaffirm our faith in basic HR and keep the peace and safety of the world...” It goes on to state that one of its main objectives is “keeping the peace and safety around the world, and to do that, taking effective collective steps to stop and remove threats to the peace, stop acts of aggression or other violations of the peace, and settle or change global disputes or situations that could lead to a breach of the peace in a way that follows the rules of justice and global law”.[56] This demonstrates that HS is closely associated with global peace, as the terms “safety” and “peace” are used interchangeably in the Charter’s preamble. Accordingly, HS at this level may be understood as synonymous with collective safety. Global Human Entitlements (HR) Law The globalization of HR has blurred the traditional distinction between domestic legal orders and global legal frameworks. Numerous legal instruments have been adopted for this purpose, among which the UDHR of December 10, 1948, stands as a cornerstone. Article 3 of the UDHR enshrines the notion of individual safety with the provision: “Everyone has the right to life, liberty and safety of person”. In this context, Article 28 states that “Everybody has the right to a social and global order that fully realizes the freedoms and rights outlined in this Declaration”. There is a notable connection between the “social level” and the “global level”, and this provision is presented as a common ideal to be achieved by all peoples and nations. Two legally binding global agreements were made in 1966 to reaffirm the Universal Declaration. One was about civil and political entitlements, and the other was about economic, social, and cultural entitlements.[57] More than 140 countries have signed these two agreements as of today. These documents, along with the Universal Declaration, make up the Global Bill of HR and are the basis for global HR law and many other global and regional treaties.[58] The Global Covenant on Civil and Political Entitlements guarantees, among other entitlements, the right to life, liberty, and prohibits torture. In addition to rights to social safety, education, and other benefits, the Global Covenant on Economic, Social, and Cultural Entitlements outlines everyone’s right to labor in fair and advantageous circumstances, including the ability to organize and join trade unions and go on strike. 2.1.3 Norms of global humanitarian law Global humanitarian law (IHL), also known as the “law of war” and more recently the “law of armed conflict”, is a branch of global law. It developed over centuries, initially through temporary agreements between conflicting parties and, from 1864 onward, through global conventions.[59] IHL applies during interstate armed conflicts or those occurring within the borders of a state. Its purpose is to safeguard individuals, whether they are parties to the conflict. The establishment of the Global Committee of the Red Cross (ICRC), the Hague Conventions of 1899 and 1907, the four Geneva Conventions of 1949, and the two Additional Protocols of 1977 collectively form a body of global rules, conventional and customary, primarily aimed at addressing humanitarian issues directly resulting from global or non-global armed conflicts.[60] As Biad (2006) underlines, international humanitarian law represents not only a codified system of rules governing armed conflict, but also a comprehensive framework that reflects the evolution of humanitarian values in international law.[61] The primary objective of IHL is to safeguard persons who do not take part, or no longer take part, in hostilities (civilians). It imposes numerous obligations and, consequently, individual criminal obligation for violations of the Geneva Conventions and Additional Protocol I. As Buirette and Lagrange (2008) note, the humanitarian purpose of IHL extends beyond regulating hostilities, aiming primarily to preserve human dignity and limit suffering even amidst armed conflict.[62] Significant differences in formulation, the essence of certain rules under IHL, and the concept of HS is fundamentally aligned. Both aim to safeguard individual life from threats to the person as well as to the essential goods necessary for survival. As Bettati (2012) observes, international humanitarian law constitutes not only a body of rules applicable in armed conflicts, but also a normative framework that directly reinforces the safeguarding of human dignity and fundamental rights.[63] Regarding the second point on HS, it is important to emphasize that under IHL, there exists a right to humanitarian assistance. Humanitarian relief efforts that are impartial in nature cannot be condemned as interference or violations of a state’s national sovereignty. In its 1986 ruling on the Military and Paramilitary Activities in and against Nicaragua case, the Global Court of Justice recognized that the provision of humanitarian aid does not constitute an unlawful intervention in the internal affairs of another state, provided it is limited to the purposes established by the practice of the Red Cross.[64] The most significant development in humanitarian law is the recognition that the use of war is no longer a lawful means of resolving conflicts, and that resorting to force itself constitutes a violation of HR.[65] This principle was explicitly affirmed during the 1968 Tehran Conference on HR: “War is the opposite of peace, and peace is the only way to fully respect HR”.[66] It is clear that humanitarian law is still a good way to safeguard people during armed conflict, and this safeguarding is still needed because, unfortunately, the law that says force can’t be used has not stopped armed conflicts from happening.[67] The true turning point that initiated the convergence of humanitarian law and HR law occurred at the 1968 Global Conference on HR in Tehran. It was at this conference that the United Nations first addressed the issue of applying HR in the context of armed conflict.[68] The true turning point that initiated the convergence of humanitarian law and HR law occurred at the 1968 Global Conference on HR in Tehran. It was at this conference that the United Nations first addressed the issue of applying HR in the context of armed conflict. As Doswald-Beck and Vité (1993) emphasize, this convergence represents a complementary evolution, whereby humanitarian law and human rights law both seek to safeguard human dignity amidst the realities of armed conflict.[69] 2.2 Human safety (HS) as a rationale for the proliferation of global interventions Given that HS encompasses multiple domains, several global institutions are involved in its implementation, notably the United Nations Security Council and global economic institutions. 2.2.1 Intervention by the UN Security Council The broadening scope of global safety is evident in the increasingly expansive interpretation by the Safety Council of what constitutes a “threat to global peace and safety”, which now includes, among other elements: the possibility of intervention in internal conflicts, reference to HR violations, and the consideration of non-state actors as targets of Safety Council resolutions imposing sanctions under Chapter VII (such as terrorist groups and rebel factions). Interpretative practice regarding Article 39 of the UN Charter reveals a tendency to regard internal conflicts involving massive HR violations and serious breaches of IHL as conflicts that threaten global peace and safety.[70] It is important to first recall that the concept of HS embodies a global willingness to intervene in the internal affairs of states and the potential to alter the traditional framework of national sovereignty and its corollaries, the principles of non-use of force and non-intervention in the internal affairs of a sovereign state. As Conforti (1993) underlines, the Security Council retains broad discretionary power in determining what constitutes a “threat to the peace, a breach of the peace, or an act of aggression” under Article 39 of the UN Charter.[71] This form of intervention has been codified by the UN Security Council and is grounded in the UDHR of 1948. If a state is unable or unwilling to safeguard its citizens, the global community may assume that obligation. The recognition of the imperative to safeguard the person has led to the establishment of a right to humanitarian intervention, whereby states and state organizations are authorized to provide emergency assistance to populations in distress. In the concluding document of the 2005 World Summit, Member States explicitly recognized that “According to Chapters VI and VIII of the Charter, the United Nations is responsible for protecting people from genocide, war crimes, ethnic cleansing, and crimes against humanity by using the right diplomatic, humanitarian, and other peaceful means”. The early 1990s were marked by a sense of optimism reflected in discussions about a “new world order”. For illustration, one can cite the cases of Iraq in 1991, Bosnia and Herzegovina in 1992, Somalia in 1992, Rwanda in 1994, and more recently Libya in 2011 and the Central African Republic in 2013. In all these instances, the Safety Council condemned violations of HR and humanitarian law committed during the armed conflicts and called for accountability to be established.[72] The Safety Council also got an active role in stopping impunity for those who commit genocide, war crimes, crimes against humanity, and aggression when the Rome Statute was passed. The Rome Statute says that the Safety Council may send cases to the ICC if it seems like one or more of these crimes have been committed. This is allowed under Chapter VII of the United Nations Charter.[73] In Resolution 1593 (2005), the Security Council used its power to say that the situation in Sudan’s Darfur area was a danger to global peace and safety and sent the matter to the Prosecutor. Ultimately, it can be said that the Safety Council, as the UN’s executive body endowed with coercive powers, holds a central obligation in implementing the United Nations’ fundamental principles, particularly the obligation to safeguard civilian populations and prevent egregious HR violations that amount to genocide, crimes against humanity, or war crimes. As Gallagher (2025) emphasizes, while the “death of R2P” narrative has gained traction in policy and academic debates, such claims are misleading: the norm continues to evolve institutionally and politically, demonstrating resilience rather than disappearance.[74] Yet, even among states that support R2P rhetorically, sustaining it under conditions of geopolitical polarization presents significant challenges. “Thus, while small states certainly can find arenas where R2P can be promoted, they cannot be seen as guarantors of the norm”.[75] 2.2.2 The involvement of global economic institutions Since 1990, the number of people suffering from persistent hunger has increased by over 80 million, alongside growing food unsafety. Meanwhile, due to emergencies triggered by conflicts and a rise in natural disasters, the demand for food aid has continued to grow.[76] Institutions such as the World Bank, the Global Monetary Fund (IMF), the Organization for Economic Co-operation and Development (OECD), and the World Trade Organization (WTO) increasingly incorporate considerations related to HS within their normative frameworks and operational activities. However, rather than using the term “HS”, they tend to refer to the “social consequences of economic policies” or “individual development”.[77] The Bretton Woods institutions refer more explicitly to the concept of individual development rather than HS. They now argue that effectively combating poverty requires not only promoting economic growth but also addressing the political and social inequalities that perpetuate poverty. In line with the objectives of the new generation of World Bank programs, there is a call for the participation and empowerment of poor countries.[78] In its 2005 report on the Millennium Development Goals, the World Bank urges wealthy countries to aim higher and improve their political programs and governance measures concerning aid, trade, and debt relief for developing countries. The Bank’s work focuses on identifying the everyday concerns of those classified as “poor” according to the Individual Development Index, and on examining their adherence to democratic principles and respect for civil and political entitlements.[79] Conclusion The issue of HS can therefore be seen as a fundamental linkage among the various goals of the United Nations, and as an obligation for Member States to cooperate in advancing these goals coherently. On this basis, HS helps to identify HR who are potentially at risk in a given situation. In this regard, strengthening global peace is an essential response to the intertwined challenges of safety and development. It follows from this premise that the participation and engagement of all members of the global community—whether states, non-governmental organizations, or other civil society actors—is imperative to achieving an effective HS framework. At the same time, more concrete commitments are required. UN Member States should reinforce the principle of Human Safety within binding international treaties and regional frameworks, such as the European Union, the African Union, and the Arab League. Specific institutional mechanisms should also be established to safeguard HS in practice, ensuring accountability and effective implementation. Moreover, Human Safety must be mainstreamed within international economic institutions, such as the IMF and the World Bank, where it should serve as a core criterion for evaluating policies and programs. Finally, further research should focus on the legal codification of HS, the comparative analysis of regional practices, and in-depth case studies in specific contexts—particularly Africa, the Middle East, and the Caucasus—where the operationalization of Human Safety remains both urgent and contested. References Scientific Literature: Addi, L. (n.d.). The concept of security tested by the new global order: The case of Algeria. Available at: <http://www.algeria-watch.org/fr>; Agence Universitaire de la Francophonie. (n.d.). Human security and the obligation to protect: The international humanitarian order in question. Paris: Éditions des Archives Contemporaines; Bettati, M. (1996). The right of intervention: Changes in the global order. Paris: Odile Jacob Editions; Bettati, M. (2012). Humanitarian law (1st). Paris: Dalloz Editions; Bélanger, M. (2002). Global humanitarian law. Paris: Gulino Éditeur; Biad, A. (2006). Global humanitarian law (2nd). 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International Review of the Red Cross, 33(293); Durand, D. (2003). The different approaches to security (February). Institut IDRP. Available at: <http://www.institutidrp.org>. Gallagher, A. (2025). Farewell the Responsibility to Protect? International Affairs, 101(2), Oxford University Press, pp. 483–502. Available at: <https://doi.org/10.1093/ia/iiaf010>; Global Commission on Intervention and State Sovereignty (ICISS). (2001). The responsibility to protect: Report of the International Commission on Intervention and State Sovereignty. International Development Research Centre. Available at: <https://www.iciss.ca/>; Hussein, K., Gnisci, D., Wanjiru, J. (2004). Security and human security: Presentation of concepts and initiatives – Key implications for West Africa. Sahel and West Africa Club; Krause, K. (2003). A critical and constructivist approach to security studies, p. 611. Available at: <http://www.afri-ct.org/IMG/pdf/krause2003.pdf>; Lau, R. K. S. (2023). Operationalizing human security: What role for the responsibility to protect? International Social Science Journal. Available at: <https://doi.org/10.1177/00208817231154054>; Letteron, R. (n.d.). The universality of human rights: Appearances and reality – The ideology of human rights in France and the United States. Available at: <http://www.diplomatie.gouv.fr>; Lowenthal, P. (2008–2009). Ambiguities of human rights. Droits fondamentaux, (7), p. 2. Available at: <http://www.droits-fondamentaux.org>; Madiot, Y. (1991). Human rights (2nd). Paris: Masson; Owen, T. (2004). On the difficulties and value of defining and assessing human security. In Human rights, human security, and disarmament (Disarmament Forum No. 3, UNIDIR); Pellet, A. (n.d.). Right of intervention or duty of humanitarian assistance? In P.P.S., La Documentation Française, No. 758–859; Ramel, F. (2001). Global economic institutions and human security: Toward a new security regime? In Human security: A new conception of global relations. Paris: L’Harmattan; Sen, A. (2003). Development, rights, and human security. In Human security now: Report of the Commission on Human Security, Paris: Presses de Sciences Po; Stensrud, E. E., Mennecke, M. (2024). On the 20th anniversary of the responsibility to protect: Can small states save R2P from failure and oblivion? Nordic Journal of Human Rights, 42(4). Available at: <https://doi.org/10.1080/18918131.2024.2426404>; Thibault, J.-F. (2013). On the obligation to protect threatened populations: The use of force and the possibility of justice. Québec: Les Presses de l’Université Laval; Ubeda-Saillard, M. (2011). The limits of the obligation to protect: Natural disasters. In Chaumette, A.-L., Thouvenin, J.-M. (Eds.), The obligation to protect, ten years later. Paris: A. Pedone Editions; Valticos, N. (1991). The concept of human rights in global law. In International law in the service of peace, justice and development: Essays in honour of Michel Virally, Paris: A, Pedone; Vézina, L.-P. (2010). The obligation to protect and humanitarian intervention: From the reconceptualization of state sovereignty to normative individualism (master’s thesis, University of Montreal, Faculty of Graduate Studies). Official documents and reports Délégation for Human Rights and Democracy. (2006). Human security: Clarification of the concept and approaches by global organizations – some reference points (Information document, January); (1789). Declaration of the Rights of Man and of the Citizen. Paris: National Constituent Assembly; Global Centre for the Responsibility to Protect. (2020). A Reflection on the Responsibility to Protect in 2020. Available at: <https://www.globalr2p.org/publications/a-reflection-on-the-responsibility-to-protect-in-2020/>; International Commission on Intervention and State Sovereignty. (2001). The obligation to protect (Report of the ICISS Sovereignty, December); International Committee of the Red Cross. (1863). Geneva Convention for the Amelioration of the Condition of the Wounded in Armies in the Field. Geneva: ICRC. International Committee of the Red Cross. (1949). Geneva Conventions of 12 August 1949. Geneva: ICRC; International Committee of the Red Cross. (1977). Additional Protocols I and II to the Geneva Conventions of 12 August 1949. Geneva: ICRC; International Conference on Human Rights. (1968). Resolution XXIII: Safeguarding of human rights in armed conflict. Tehran: United Nations; International Court of Justice. (1986). Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America), merits, judgment. I.C.J. Reports 1986; San José Declaration. (2001). San José Declaration on Human Security. San José; (2022). Special Report on Human Security: New threats to human security in the Anthropocene. United Nations Development Programme. Available at: <https://hdr.undp.org/content/2022-special-report-human-security>; United Nations Development Programme. (1994). Human Development Report 1994, Paris: Economica Edition; United Nations General Assembly. (1948). Universal Declaration of Human Rights; United Nations General Assembly. (1966). International Covenant on Economic, Social and Cultural Rights; United Nations General Assembly. (2005). 2005 World Summit Outcome (A/RES/60/1). United Nations; United Nations Office on Human Security. (2024). Publications on human security. Available at: <https://www.un.org/humansecurity/publications-on-human-security/>; United Nations Trust Fund for Human Security. (2009). Application of the human security concept and the United Nations Trust Fund for Human Security. United Nations Office for the Coordination of Humanitarian Affairs; United Nations, Office of the High Commissioner for Human Rights. (2011). Global legal safeguarding of human rights in armed conflict. New York & Geneva: United Nations; United Nations. (1945). Charter of the United Nations; United Nations. (1998). Rome Statute of the International Criminal Court. United Nations Treaty Series, 2187, 3; United Nations. (2000). Report of the Secretary-General on the Activities of the Organization. Official Records of the Fifty-Fifth Session of the General Assembly, Supplement No. 1 (A/55/1). Footnotes [1] Valticos, N. (1991). The concept of human rights in global law. In International law in the service of peace, justice and development: Essays in honour of Michel Virally, Paris: A, Pedone, 483-491. [2] Sen, A. (2003). Development, rights, and human security. In Human security now: Report of the Commission on Human Security, Paris: Presses de Sciences Po, pp. xx-xx. [3] Lowenthal, P. (2008–2009). Ambiguities of human rights. Droits fondamentaux, (7), p. 2. Available at: <http://www.droits-fondamentaux.org>. [4] Madiot, Y. (1991). Human rights (2nd ed.). Paris: Masson, p. 26. [5] United Nations General Assembly. (1948). Universal Declaration of Human Rights, Article 1. [6] We refer here to the meaning given by Henry Shue regarding the content of subsistence, that is, having access to clean air, clean water, enough food, clothes, and shelter, as well as a basic public health preventative system. See: Vézina, L.-P. (2010). The obligation to protect and humanitarian intervention: From the reconceptualization of state sovereignty to normative individualism (master’s thesis, University of Montreal, Faculty of Graduate Studies), p. 65. [7] Ibid. [8] United Nations General Assembly. (1966). International Covenant on Economic, Social and Cultural Rights, Part III. [9] Délégation for Human Rights and Democracy. (2006). Human security: Clarification of the concept and approaches by global organizations – some reference points (Information document, January), p. 4. [10] David, C. P., Rioux, J.-F. (2001). The concept of human security. In Human security: A new conception of global relations (Raoul Dandurand Collection, L’Harmattan Edition), pp. 19–30. [11] Bettati, M. (1996). The right of intervention: Changes in the global order. Paris: Odile Jacob Editions. Pellet, A. (n.d.). Right of intervention or duty of humanitarian assistance? In P.P.S., La Documentation Française, No. 758–859, p. 133. [12] Bettati, M. (1996). The right of intervention: Changes in the global order. Paris: Odile Jacob Editions. [13] International Commission on Intervention and State Sovereignty. (2001). The obligation to protect (Report of the ICISS Sovereignty, December), paras. 2.21–2.33. [14] Délégation for Human Rights and Democracy. (2006), op. cit., p. 6. [15] Lau, R. K. S. (2023). Operationalizing human security: What role for the responsibility to protect? International Social Science Journal. Available at: <https://doi.org/10.1177/00208817231154054>. [16] Agence Universitaire de la Francophonie. (n.d.). Human security and the obligation to protect: The international humanitarian order in question. Paris: Éditions des Archives Contemporaines, p. 14. [17] Ibid. [18] Addi, L. (n.d.). The concept of security tested by the new global order: The case of Algeria. Available at: <http://www.algeria-watch.org/fr>. [19] Agence Universitaire of the Francophonie. (n.d.), op. cit., p. 22. [20] Owen, T. (2004). On the difficulties and value of defining and assessing human security. In Human rights, human security, and disarmament (Disarmament Forum No. 3, UNIDIR), pp. 17–18. [21] Ibid., p. 18. [22] Addi, L. (n.d.), op. cit., p. 1. [23] Letteron, R. (n.d.). The universality of human rights: Appearances and reality – The ideology of human rights in France and the United States, p. 150. Available at: <http://www.diplomatie.gouv.fr>. [24] Ibid, p.150. [25] Owen, T. (2004), op. cit., p. 18. [26] Ibid., p. 19. [27] Durand, D. (2003). The different approaches to security (February). Institut IDRP. Available at: <http://www.institutidrp.org>. [28] Ibid. [29] Durand, D. (2003), op. cit. [30] Délégation for Human Rights and Democracy. (2006), op. cit., p. 4. [31] Ibid. [32] United Nations. (2000). Report of the Secretary-General on the Activities of the Organization. Official Records of the Fifty-Fifth Session of the General Assembly, Supplement No. 1 (A/55/1). [33] Krause, K. (2003). A critical and constructivist approach to security studies, p. 611. Available at: <http://www.afri-ct.org/IMG/pdf/krause2003.pdf>. [34] Boyle, K., Simonsen, S. (2004). Human security, human rights, and disarmament. In Human rights, human security, and disarmament (Disarmament Forum No. 3, UNIDIR), p. 6. [35] United Nations Development Programme. (1994). Human Development Report 1994, Chapter 2: New dimensions of human security. Paris: Economica Edition, pp. 23-26. [36] Owen, T. (2004), op. cit., p. 20. [37] Délégation for Human Rights and Democracy. (2006), op. cit., p. 8. [38] David, C. P., Rioux, J. F. (2001), op. cit. [39] Boyle, K., Simonsen, S. (2004), op. cit., p. 6. [40] Délégation for Human Rights and Democracy. (2006), op. cit., p. 8. [41] San José Declaration. (2001). San José Declaration on Human Security. San José. [42] United Nations Office on Human Security. (2024). Publications on human security. Available at: <https://www.un.org/humansecurity/publications-on-human-security/>. [43] UNDP. (2022). Special Report on Human Security: New threats to human security in the Anthropocene. United Nations Development Programme. Available at: <https://hdr.undp.org/content/2022-special-report-human-security>. [44] Délégation for Human Rights and Democracy. (2006), op. cit., p. 10. [45] Ibid. [46] Agence Universitaire de la Francophonie. (n.d.), op. cit., p. 13. [47] Hussein, K., Gnisci, D., Wanjiru, J. (2004). Security and human security: Presentation of concepts and initiatives – Key implications for West Africa. Sahel and West Africa Club, p. 17. [48] Délégation for Human Rights and Democracy. (2006), op. cit., p. 11. [49] Agence Universitaire of the Francophonie. (n.d.), op. cit., p. 29. [50] Délégation for Human Rights and Democracy. (2006), op. cit., p. 11. [51] Global Commission on Intervention and State Sovereignty (ICISS). (2001). The responsibility to protect: Report of the International Commission on Intervention and State Sovereignty. International Development Research Centre. Available at: <https://www.iciss.ca/>. [52] Ibid. [53] Ubeda-Saillard, M. (2011). The limits of the obligation to protect: Natural disasters. In Chaumette, A.-L., Thouvenin, J.-M. (Eds.), The obligation to protect, ten years later. Paris: A. Pedone Editions, p. 28. [54] Thibault, J.-F. (2013). On the obligation to protect threatened populations: The use of force and the possibility of justice. Québec: Les Presses de l’Université Laval, p. 5. [55] Global Centre for the Responsibility to Protect. (2020). A Reflection on the Responsibility to Protect in 2020. Available at: <https://www.globalr2p.org/publications/a-reflection-on-the-responsibility-to-protect-in-2020/>. [56] United Nations. (1945). Charter of the United Nations, Article 1. [57] According to Article 11, paragraph 1 of the ICESCR, the “States the Covenant’s parties acknowledge that everyone has the right to a sufficient quality of living, which includes enough food, and they pledge to take the required actions to guarantee that this right is realized”. [58] Boyle, K., Simonsen, S. (2004), op. cit., p. 7. [59] Buirette, P., Lagrange, P. (2008). Global humanitarian law. Paris: La Découverte Edition, p. 33. [60] Bettati, M. (2012). Humanitarian law (1st ed.). Paris: Dalloz Editions; Bélanger, M. (2002). Global humanitarian law. Paris: Gulino Éditeur; [61] Biad, A. (2006). Global humanitarian law (2nd ed.). Paris: Ellipses Editions. [62] Buirette, P., Lagrange, P. (2008), op. cit. [63] Bettati, M. (2012), op. cit. [64] International Court of Justice. (1986). Case concerning military and paramilitary activities in and against Nicaragua (Nicaragua v. United States of America), merits, judgment. I.C.J. Reports 1986, p. 14, para. 243. [65] Doswald-Beck, L., Vité, S. (1993). Global humanitarian law and human rights law. International Review of the Red Cross, (800), Geneva, p. 14. [66] International Conference on Human Rights. (1968). Resolution XXIII: Safeguarding of human rights in armed conflict. Tehran: United Nations. [67] Doswald-Beck, L., Vité, S. (1993), op. cit., p. 14. [68] Ibid., p. 21. [69] Doswald-Beck, L., Vité, S. (1993). International humanitarian law and human rights law. International Review of the Red Cross, 33(293), pp. 94–119. [70] Conforti, B. (1993). The discretionary power of the Security Council in determining a threat to the peace, a breach of the peace, or an act of aggression. In Proceedings of the Hague Academy of International Law Colloquium (July 21–23, 1992). Dordrecht/Boston/London: Martinus Nijhoff Publishers, p. 53. [71] Ibid. [72] As an example, Security Council resolution 1019 (1995) concerning violations committed in the former Yugoslavia reads as follows: “urges that everyone involved fulfill their responsibilities in this respect and strongly condemns any abuses of human rights and global humanitarian law that have occurred on the former Yugoslavian territory. Also, S/RES/1034 (1995) resolution. [73] United Nations, Office of the High Commissioner for Human Rights. (2011). Global legal safeguarding of human rights in armed conflict. New York & Geneva: United Nations, pp. 106-107. [74] Gallagher, A. (2025). Farewell the Responsibility to Protect? International Affairs, 101(2), Oxford University Press, pp. 483–502. Available at: <https://doi.org/10.1093/ia/iiaf010>. [75] Stensrud, E. E., Mennecke, M. (2024). On the 20th anniversary of the responsibility to protect: Can small states save R2P from failure and oblivion? Nordic Journal of Human Rights, 42(4), pp. 435–444. Available at: <https://doi.org/10.1080/18918131.2024.2426404>. [76] United Nations Trust Fund for Human Security. (2009). Application of the human security concept and the United Nations Trust Fund for Human Security. United Nations Office for the Coordination of Humanitarian Affairs. [77] Ramel, F. (2001). Global economic institutions and human security: Toward a new security regime? In Human security: A new conception of global relations. Paris: L’Harmattan, p. 189. [78] Délégation for Human Rights and Democracy. (2006), op. cit., p. 26. [79] Ibid., p. 27.
Cybersecurity in the Digital Era: Between Digital Transformation and Protection Challenges
The enhancement of cybersecurity represents a cornerstone for the successful implementation of digital transformation initiatives across various sectors. It plays a critical role in safeguarding digital systems against cyber threats and attacks that could disrupt operations and compromise continuity. As reliance on technology grows and smart systems become increasingly integrated into service delivery, the demand for a resilient and trustworthy cybersecurity infrastructure has become indispensable. Cybersecurity serves as a fundamental enabler of trust in the integrity and confidentiality of data, protecting it from manipulation, breaches, or unauthorized disclosure. This, in turn, fosters a secure and transparent digital environment for information exchange, which enhances institutional performance and reduces operational costs arising from security breaches or technical failures. The findings of this study indicate that nations and organizations possessing advanced cybersecurity capabilities—and investing proactively in emerging technologies—are more equipped to assert effective control over cyberspace. Such capacity ensures the realization of digital security and strengthens national sovereignty. Cybersecurity thus emerges as a strategic instrument for digital defense and the protection of national interests at both domestic and international levels, positioning it as a vital element in achieving comprehensive and sustainable digital transformation. Keywords: Cybersecurity, digital transformation, data protection, cyberattacks. Introduction Contemporary society is situated at the core of the knowledge and information era, an era defined by the ubiquity of the web and pervasive networked communication, where the flow of information now surpasses any previously known form of exchange in human history. The transformations that characterize this phase represent a qualitative leap that far surpasses previous stages of human development, particularly in terms of scope, speed, capacity, and informational richness. This evolving reality has shifted the world from geographical proximity to a condition of spatial convergence, transcending even Marshall McLuhan’s seminal notion of a “global village”. The unprecedented velocity and volume of information circulation have resulted in what is often termed the “information explosion”, a phenomenon that carries profound positive and negative implications for the global community. Simultaneously, this explosion has engendered a spectrum of security challenges of varying magnitude and impact, affecting both individuals and nation-states. These challenges increasingly necessitate intervention to protect sensitive information, especially that which pertains to national sovereignty and state security, within the framework of what is now understood as “cybersecurity”. In today’s increasingly digital societies, information functions as a core axis across economic, political, and social dimensions, rendering it highly susceptible to threats and attacks. This underscores the urgent need to implement robust safeguards against cybercrime in its many forms. The imperative becomes all the more acute as information continues to serve as a primary source of both wealth and intellectual capital. The deepening interconnectivity among institutions worldwide compounds the risk: a single breach within one entity’s digital infrastructure can rapidly cascade into broader systemic vulnerabilities due to the intricate web of informational dependencies that now characterize global institutional operations. Moreover, cyberattacks have evolved into a formidable instrument within the landscape of international competition, particularly in the economic domain, where such attacks may serve espionage or sabotage functions between states. The severity of these threats escalates dramatically when critical infrastructure is targeted, as such incidents have the potential to trigger geopolitical conflict, especially in already volatile regions. Consequently, cyberattacks now pose a direct threat to regional and global peace and security. These dynamics make it increasingly necessary to recognize cybersecurity not merely as a technical concern but as a strategic imperative, an essential dimension of national security and a cornerstone of any comprehensive digital transformation agenda. Given the strategic significance and high-stakes nature of cybersecurity risks, an increasing number of nations are integrating cybersecurity measures into their overarching national security doctrines. In light of the foregoing, this study is guided by the following research question: Is there a measurable correlation between the various dimensions of digital transformation and the level of cybersecurity implemented within institutional frameworks? Furthermore, to what extent does digital transformation contribute to reinforcing, or potentially undermining, cybersecurity? To address this question, the research adopts an inductive approach, beginning with partial observations and analyses of real-world and contemporary cases associated with digital transformation and its implications for cybersecurity. This includes the monitoring of incidents such as cyberattacks targeting critical infrastructure, data breaches, and the implementation of modern protective strategies by specific countries and institutions. Additionally, the analytical method is applied to examine these incidents and discern the nature of the relationship between digital transformation and the increasing necessity for cybersecurity. Methodology This research is based on a doctrinal-analytical approach, which involves the examination of international and national legal documents, strategic frameworks, and policy acts. A comparative legal method has also been employed, entailing a systematic comparison of models from different jurisdictions. In addition, the study integrates a case study approach, focusing on detailed discussions of specific examples of legal practice. The research materials include: normative acts and official documents (international conventions, EU directives, U.S. federal standards, Algerian national legislation); reports of international organizations (current publications of ENISA, NIST, and other institutions); academic literature (scholarly works published over the past decade reflecting contemporary trends in digital transformation and cybersecurity); and practical cases (decisions of international courts and real-life cyberattack examples illustrating the issues under examination). The article relies primarily on normative and documentary sources. Quantitative analysis, including modeling or statistical processing of cybersecurity indices, does not fall within the scope of this study; however, this direction is identified as a perspective for future research. 1. Digital Transformation as a Catalyst for the Evolution of Cybersecurity Amid the rapid proliferation of digital technologies and the growing dependence of institutions on intelligent solutions across a wide array of sectors, digital transformation has emerged as a foundational force in reshaping the landscape of work environments and service delivery. Parallel to this transformation is the escalating urgency to safeguard data and protect digital infrastructure from a surge in cyber threats, rendering cybersecurity a critical and continuously evolving domain. Within this context, digital transformation can be seen not only as a driver of innovation and operational efficiency but also as a catalyst for the advancement of cybersecurity mechanisms and methodologies. These advances align with the increasing complexity of digital threats and the elevated expectations placed on institutions to secure information effectively. 1.1. Digital transformation and the variables of the digital age Contemporary global dynamics are characterized by transformative changes spurred by the digital revolution, which has redefined economic, social, educational, and security paradigms. With the relentless acceleration of technological innovation, digital transformation has shifted from being a strategic option to becoming an imperative, imposed by the defining variables of the digital era, including artificial intelligence, big data analytics, and the Internet of Things. These technological variables do not merely influence the nature of services and infrastructure; they also reshape fundamental notions of operational efficiency, responsiveness, and communicative interaction. As a result, both individuals and institutions are compelled to embrace innovative digital frameworks capable of adapting to the pace and demands of this transformation. 1.1.1. The concept of digital transformation The current era is marked by an intensifying digital transformation, which has established itself as a global trend permeating all domains due to persistent technological advancement. This transformation has redefined how efficiency and effectiveness are conceptualized within institutional structures and has led to the emergence of new perspectives concerning institutional performance and excellence. As a result, adopting digitalization has become a strategic imperative, one that enables the initiation of systemic change and the pursuit of excellence across a range of sectors. Consequently, the discussion must address the concept of digital transformation by first providing its definitions and then exploring its core dimensions. 1.1.1.1. Definition of digital transformation Digital transformation is defined as: “A modern business model that utilizes digital technologies to develop innovative products and services, as well as the methods through which they are delivered, with an emphasis on addressing the needs of customers or end users”.[1] It is further defined as: “The process of integrating digital technologies into business operations, resulting in a radical and comprehensive transformation in the way value is created and delivered to the end user, while simultaneously reflecting a cultural shift that institutions must adapt to”. In a similar vein, it is described as: “Innovation driven by a comprehensive transformation process that incorporates existing digital technologies into methods for generating value, conducting production, and managing business operations, particularly by redefining the underlying thought processes”.[2] Accordingly, digital transformation can be defined as a comprehensive and strategic process aimed at the systematic integration of digital technologies across all facets of institutional operations. Its purpose is to foster the innovation of new products and services, refine the mechanisms through which value is delivered to the end user, and instigate cultural and organizational transformation. This process compels institutions to fundamentally reconsider their business models, leadership methodologies, and cognitive frameworks to align with the complex and evolving demands of the digital age. 1.1.1.2. Dimensions of digital transformation Digital transformation represents a multifaceted phenomenon, within which two principal dimensions are particularly prominent:[3] 1.1.1.2.1. Digital technologies At its core, digital transformation is driven by ongoing advancements in digital technologies. Scholarly literature consistently identifies three primary technologies as central to institutional digital transformation: the Internet, digital analytics, and cloud computing. These technologies are interrelated and have witnessed exceptional development in recent years. Their combined capabilities have enabled institutions to restructure and optimize their internal processes and service delivery in a digitally integrated and comprehensive manner. 1.1.1.2.2. User experience Digital transformation places the end user, be it a consumer or an employee, at the center of institutional priorities. Contemporary users increasingly demand superior quality, enhanced flexibility, and personalized engagement in the products and services they consume. They also expect immediate, context-aware responses to their shifting needs. This reality is especially pronounced among digital-native generations, who display heightened technological literacy and a pronounced inclination to share their experiences through social media platforms. To accommodate these continually evolving expectations, institutions must reassess their operational behaviors and adopt marketing strategies that resonate with contemporary consumption patterns. Consequently, digital transformation often initiates with a reconfiguration of marketing functions through the deployment of advanced customer relationship management (CRM) tools. These systems are progressively integrated with social network analysis functionalities to enrich the interactive and participatory aspects of customer engagement. This transformative impact extends further to human resource management, particularly through the utilization of employee relationship management (ERM) systems. Within this framework, employees are perceived as “internal customers”, and significant efforts are directed toward delivering a workplace experience that mirrors the standard of service extended to external clients. 1.1.2. Requirements of digital transformation The implementation of digital transformation spans several domains, notably technology, data, and human capital. These requirements are outlined in greater detail below: 1.1.2.1. Technologies Digital transformation is predicated on a cohesive and sophisticated technological ecosystem encompassing hardware, data repositories, storage infrastructures, and software platforms, all of which function within advanced IT environments and data centers designed to guarantee both high performance and operational continuity. This ecosystem must be capable of delivering consistent service quality that satisfies the expectations of the organization’s personnel, clients, and external partners. To ensure these outcomes, it is essential to deploy specialized technical teams tasked with overseeing and maintaining the technological infrastructure and communication networks with precision, dependability, and efficiency. 1.1.2.2. Data Business organizations must engage in consistent and effective data management and analysis to ensure the availability of qualitative, reliable, and comprehensive information. This requires the implementation of advanced statistical analysis tools and the development of predictive capabilities that assist in shaping future strategic orientations. Continuous monitoring of data flows, coupled with their optimal utilization, is essential for achieving institutional objectives and realizing broader strategic goals.[4] 1.1.2.3. Human resources Human resources constitute a fundamental pillar in advancing digital transformation, as they represent one of the most critical assets for confronting the complex challenges and pressures that institutions currently face. These resources serve as a driving force for progress and development across various sectors. Nonetheless, many countries, particularly those in the developing world, grapple with substantial obstacles stemming from the scarcity of skilled professionals equipped to navigate and adapt to the demands of the digital environment. This deficiency poses a significant barrier to the integration of advanced technologies and the effective implementation of digital transformation initiatives. Therefore, there is a pressing need to formulate strategic plans aimed at cultivating and enhancing human capacities. This includes attracting new talent with a deep understanding of the digital transformation landscape and leveraging existing technological resources to support institutional advancement in this domain. 1.2. The evolution of cybersecurity in response to digital transformation In tandem with the accelerating momentum of digital transformation and the growing institutional dependence on intelligent systems and digital platforms, the protection of data and digital systems has assumed critical importance. This evolving reality has given rise to a complex threat landscape that demands sophisticated security solutions capable of addressing the emerging risks within cyberspace. As a direct outcome of this transformation, the cybersecurity field has undergone notable expansion, particularly in the development of new tools and strategic approaches. Increasingly, cybersecurity operations rely on artificial intelligence, data analytics, and machine learning to anticipate, detect, and neutralize potential cyberattacks. Consequently, digital transformation has not only introduced novel security challenges but has simultaneously driven the evolution and enhancement of cybersecurity capabilities. 1.2.1. The concept of cybersecurity This section outlines the concept of cybersecurity by presenting its definitions and identifying its principal dimensions. 1.2.1.1. Definition of cybersecurity Cybersecurity is a relatively modern concept, first introduced in the United States during the late 1980s. However, it did not attain widespread recognition and application until the early 2000s, coinciding with the rapid acceleration of technological development and the parallel escalation of cyber threats and vulnerabilities, which have since emerged as significant global security concerns. Cybersecurity is defined as: “A set of technical and administrative measures used to prevent unauthorized access to computer networks or to prevent their misuse, in addition to the recovery of the electronic information they contain, with the aim of ensuring the continuous operation of information systems and safeguarding the security, confidentiality, and privacy of data for actors within cyberspace”.[5] The American Institute of Certified Public Accountants (AICPA) defined cybersecurity as: “a set of practices and procedures designed to protect data and information from cyber threats”.[6] The American Institute of Certified Public Accountants (AICPA) has established a comprehensive set of cybersecurity standards for the accounting profession, including the Statements on Standards for Accounting and Review Services (SSARS) and the Trust Services Principles and Review Services. These frameworks are intended to assist accountants in safeguarding the digital business environment through the implementation of effective data security and privacy controls, thereby reinforcing confidence in the systems and processes underpinning the delivery of professional services.[7] Conversely, the National Institute of Standards and Technology (NIST, 2024) has adopted the Cybersecurity Framework (CSF 2.0) as a key international reference for the development of protection strategies and the management of risks at the institutional level.[8] The Securities and Exchange Commission (SEC) has defined cybersecurity as the protection of systems, networks, and digital data from cyberattacks and unauthorized access. In other words, the SEC addresses cybersecurity in the context of safeguarding sensitive information belonging to investors and registered companies.[9] As such, cybersecurity encompasses a domain dedicated to formulating procedures and adopting standards and protective measures to address threats, prevent security breaches, and reduce the potential impact of such incidents to the lowest possible level, even in worst-case scenarios. From an operational perspective, cybersecurity can be summarized through the following key elements: Cybersecurity comprises a collection of defensive tools and mechanisms designed to detect intrusions and prevent unauthorized access; It includes the safeguarding of computer networks and their associated data from infiltration, malicious tampering, or disruption attempts; Cybersecurity involves the mitigation of risks posed by malicious attacks on software, hardware, and networks. This includes tools for intrusion detection, virus mitigation and removal, the application of authentication protocols, and the activation of secure, encrypted communications;[10] More broadly, cybersecurity is understood as an ensemble of practices and technologies developed to defend systems, networks, and software infrastructure against all forms of digital attack, whether originating from hacking attempts, malware infections, or other cyber threats targeting the integrity of information and digital assets. 1.2.1.2. Foundations of cybersecurity In a digital world where dependence on technology is continuously growing, cybersecurity has become an indispensable necessity for safeguarding data and systems against cyberattacks. Recognizing the true significance of cybersecurity is critical at both the individual and institutional levels. In general, cybersecurity is centered on three primary objectives: 1.2.1.2.1. Confidentiality Protection of personal data and sensitive information: Cybersecurity offers effective mechanisms to control access to data, ensuring that only authorized individuals or entities can retrieve or manipulate it. This is essential for protecting personal data such as names, addresses, and financial records, as well as sensitive institutional information, including patents and proprietary designs. Prevention of data theft and fraud: Cybersecurity plays a pivotal role in preventing attempts by intruders to steal data, thereby substantially lowering the risks of fraud and identity theft. 1.2.1.2.2. Integrity Ensuring data accuracy and completeness: Cybersecurity safeguards the integrity of data by preventing unauthorized alterations or damage. This function is vital for maintaining the precision and reliability of data, which directly influences operational effectiveness and the soundness of decision-making processes. Protection from destructive attacks: Cybersecurity counters malicious activities aimed at damaging or corrupting data, thereby preserving information reliability and supporting the continuity of business operations. 1.2.1.2.3. Availability Ensuring business and service continuity: Cybersecurity ensures the constant availability of systems, services, and information, thus enabling uninterrupted business functions and service delivery. Avoidance of financial losses: By ensuring consistent access to digital resources, cybersecurity helps minimize potential financial damages associated with service downtime or data loss.[11] 1.2.1.3. Cybersecurity legal framework The Budapest Convention on Cybercrime (2001) is regarded as the first binding international instrument aimed at harmonizing national legislations, developing advanced investigative techniques, and enhancing international cooperation in combating cybercrime. It explicitly criminalizes acts such as illegal access to systems, data interference, system interference, and computer-related fraud, while also establishing detailed mechanisms for mutual legal assistance among member states. In contrast, the Algerian legislator has gradually incorporated provisions related to cybersecurity within its legal framework. Law No. 04-15[12] of 2004 and Law No. 06-23[13] of 2006 amended the Penal Code to criminalize illegal access, modification, deletion, or destruction of data. Furthermore, Law No. 09-04[14] of 2009 introduced specific rules for the prevention and combating of offenses related to information and communication technologies, including measures such as electronic surveillance, cooperation with service providers, and the exchange of international judicial assistance. Despite these efforts, Algerian legislation remains less comprehensive compared to the Budapest Convention, particularly regarding the harmonization of cybercrime definitions, the expansion of procedural powers for digital investigations, and the establishment of structured mechanisms for international cooperation. Accordingly, aligning Algerian legislation with the standards set forth in the Budapest Convention would significantly enhance its effectiveness in addressing cross-border cyber threats and strengthen its capacity for international collaboration in this critical field. Practical case study: Microsoft v. United States (2016) In 2013, a U.S. federal court issued a warrant to Microsoft under the Stored Communications Act (SCA) compelling the company to disclose the contents of an email account belonging to a suspect in a narcotics trafficking case. While Microsoft provided the non-content data stored within the United States, it refused to release the email content stored on its servers in Dublin, Ireland, arguing that U.S. warrants could not extend beyond national borders. The government, on the other hand, insisted that Microsoft retained control over the data regardless of its physical location. After prolonged litigation, the Court of Appeals for the Second Circuit ruled in July 2016 that the SCA does not authorize U.S. courts to issue warrants for data stored abroad, thereby overturning the lower court’s decision and vacating the contempt order against Microsoft.[15] In conclusion, the judgment affirmed that U.S. warrants are territorially limited and cannot be applied to data stored overseas. This outcome reinforced the principle of data sovereignty and highlighted the pressing need for coherent international legal frameworks, such as the Budapest Convention, to effectively address cross-border cybercrime. 1.2.2. Cybersecurity requirements in the context of digital transformation In light of ongoing technological advancements and the acceleration of digital transformation, cybersecurity has become one of the most critical and urgent concerns. It functions as the primary defense mechanism for protecting digital systems and networks, with the core objective of securing sensitive data and information from unauthorized access and potential cyber threats. Ensuring effective cybersecurity necessitates the adoption of comprehensive, multi-layered strategies encompassing prevention, real-time monitoring, and robust threat response mechanisms. These include the deployment of advanced technologies such as encryption and software-based defense systems, along with the promotion of digital security awareness through user education and training on best practices. A major challenge confronting the field lies in the ever-evolving nature of cyber threats. Malicious actors continuously seek innovative techniques to breach digital infrastructures. As a result, cybersecurity specialists must remain informed about the latest developments and threat vectors to effectively counter these risks. Despite the complexity of these challenges, robust cybersecurity can be achieved through strategic investment in modern technologies, widespread promotion of digital security awareness, and reinforced cooperation between institutions and relevant governmental authorities. Thus, cybersecurity constitutes a shared responsibility involving individuals, organizations, and state institutions. Heightened awareness and collaborative action form the essential foundation for protecting and securing digital ecosystems. 2. Cyber Challenges in the Digital Era and Response Strategies In light of the massive expansion in the use of digital technology, cyberspaces have become arenas for increasing challenges that threaten the security of individuals, institutions, and states alike. The digital age, despite its advantages in terms of speed and information exchange, has simultaneously generated new forms of complex and advanced cyberattacks, ranging from data theft and cyber extortion to threats targeting critical infrastructure. In the face of these growing challenges, it has become imperative to adopt comprehensive and flexible cybersecurity strategies that combine technical, human, and organizational dimensions to ensure business continuity and protect sensitive information from any potential breach. 2.1. Key cyber threats in the digital age With the growing reliance on digital systems and the expansion of IT infrastructure, advanced cyber threats have emerged that align with the nature of the digital era. These threats have become a growing concern for both institutions and governments, making it essential to identify the most prominent ones and analyze their impact within the context of accelerating digital transformation. 2.1.1. Cyberattacks Cyberattacks are among the most significant challenges facing cybersecurity, as they can lead to the leakage of sensitive information and financial data, causing severe damage to governmental institutions, companies, and even individuals. Addressing these threats requires strengthening protection against cybercrimes by securing computer systems and networks against malicious attacks, including viruses, malware, ransomware, and denial-of-service (DoS) attacks.[16] In this regard, the European Union Agency for Cybersecurity (ENISA, 2024) underscores that ransomware and supply chain attacks constitute some of the most severe threats confronting states and organizations in the digital era.[17] 2.1.2. Phishing This involves attempts to deceive users into providing sensitive data, such as passwords or bank card information, often through fake email messages. 2.1.3. Social engineering Social engineering is one of the techniques employed by cybercriminals, who impersonate influential individuals to deceive the victim and manipulate them into revealing sensitive information that serves specific purposes. This often includes requests for financial payments or access to confidential data. Attackers use various tools to breach computers and gain unauthorized access to service providers, enabling them to steal credit card numbers, passwords, and other personal information from network users.[18] 2.1.4. Attacks on the Internet of Things (IoT) The Internet of Things (IoT) is considered an emerging technology that connects billions of computing devices to the Internet. Sensors and computing devices communicate through Internet protocols to exchange information and share data.[19] IoT devices face several security risks due to their vulnerabilities: * Device weaknesses: IoT devices are designed with limited processors and memory, making them susceptible to vulnerabilities. Weak default configurations, outdated software, and a lack of security updates make these devices ideal targets for attacks; * Data privacy: IoT devices collect massive amounts of sensitive data, including personal information. Insecure storage, weak encryption, or poor data management can lead to unauthorized access;[20] * Network security: Devices rely on wireless protocols such as Wi-Fi, Bluetooth, and cellular networks. Attackers may target these channels for eavesdropping or data tampering. Insecure configurations and weak encryption compromise network security.[21] 2.1.5. Cloud computing The increasing reliance on cloud computing services exposes organizations to new risks such as data breaches, unauthorized access, insecure APIs, and shared infrastructures, which can lead to data loss and disruption of critical services.[22] 2.2. Protection and response strategies against digital threats Amid the escalating cyber threats and the continuous evolution of attack techniques, the adoption of effective strategies has become imperative for safeguarding digital infrastructure, securing information, and ensuring the continuity of business operations. The most prominent among these strategies include: 2.2.1. Enhancing security awareness Fostering a cybersecurity-oriented culture among all users within institutions through continuous training sessions and workshops is essential. These initiatives focus on raising awareness regarding the identification of phishing attacks, social engineering tactics, and malware threats. 2.2.2. Regularly updating systems and software Routine security updates constitute a primary defense mechanism against vulnerabilities that may be exploited by malicious actors. The implementation of patch management systems is necessary to ensure that software remains consistently updated and resilient against known threats. 2.2.3. Using advanced protection tools It is crucial to deploy integrated security solutions that encompass firewalls, antivirus programs, intrusion detection and prevention systems (IDS/IPS), and robust encryption protocols to safeguard data during both transmission and storage. 2.2.4. Implementing access control policies Access to sensitive information must be restricted based on the principle of “least privilege”, with strong enforcement of user authentication procedures through multi-factor authentication systems. 2.2.5. Backup and emergency response The establishment of a comprehensive data recovery and emergency response strategy is vital. This should include routine data backup processes and the execution of simulated cyberattack exercises to assess readiness and ensure swift response capabilities. 2.2.6. System monitoring and log analysis The use of network monitoring tools and log analysis facilitates the detection of abnormal activities and supports the early identification of potential intrusion attempts. 2.2.7. Compliance with standards and regulations Adherence to international security standards and regulatory frameworks such as ISO/IEC 27001 and the General Data Protection Regulation (GDPR) significantly enhances the overall security posture and reduces legal and compliance-related risks. 2.2.8. Behavior-based security This approach involves the detection of threats by monitoring and analyzing communication patterns between users and devices on a network. Any deviation from established behavioral norms is flagged as an anomaly, potentially signaling the presence of an attack in progress. NetFlow technology NetFlow is employed to gather metadata on network traffic, including information about users, devices, and communication flows. This data is instrumental in identifying and analyzing irregular network behavior indicative of security threats. Penetration testing (also known as Pen Testing) Penetration testing involves evaluating security vulnerabilities in systems and networks by simulating attacks. Testers attempt to exploit identified weaknesses, and the findings are used to strengthen system defenses and improve security effectiveness. While institutions dedicate significant efforts to prevent cybersecurity breaches, no security system can guarantee absolute protection. Therefore, maintaining continuous threat awareness and persistently evolving protection strategies remains an essential component of comprehensive cybersecurity management. The following table illustrates the impact of different digital transformation models on cybersecurity and how they address threats. In fact, digital transformation enhances cybersecurity management by improving threat monitoring, response, and data analysis, but it also increases complexity and poses significant challenges for data protection and privacy. Conclusion The world has witnessed remarkable technological progress, particularly in the domain of information and communication technologies. This progress has led to an unprecedented expansion of the digital sphere, reflected in the vast and diverse range of content and services now accessible via the internet, from artificial intelligence and the Internet of Things to virtual and augmented reality and cloud computing. While these advancements have delivered immense benefits, they have also introduced serious challenges and risks, most notably the rise of increasingly sophisticated cyber threats. These include the spread of malicious viruses, data breaches, espionage operations, and even the destruction of digital infrastructure. In certain instances, such attacks have evolved to the extent that they now pose direct threats to national security, falling under the scope of what is now recognized as cyber warfare. In light of this complex and evolving landscape, there is a pressing need to adopt both defensive and offensive cybersecurity strategies that incorporate advanced security technologies and go beyond the limitations of conventional territorial boundaries. Cyberspace has transformed from a purely technological realm into an open and contested arena where the security of nation-states can be targeted and compromised with alarming ease. As a result, states are increasingly focused on developing comprehensive cybersecurity systems, including tools for surveillance, deterrence, and response, with the ultimate aim of securing their data and protecting their critical national interests. Based on the preceding analysis, the following conclusions can be drawn: Cyberspace has introduced multifaceted and far-reaching challenges affecting all nations without exception. It has also played a pivotal role in redefining global power dynamics according to new criteria that transcend traditional frameworks; This domain has produced intensifying threats, compelling nations to urgently adopt robust national cybersecurity strategies, particularly in light of mounting global challenges; The increasing prevalence of cyberattacks, espionage activities, and recurring electronic intrusions has necessitated a reexamination of the concept of absolute sovereignty, which has become vulnerable to digital exposure and penetration, ultimately threatening national stability and security. In light of these findings, the following recommendations are proposed: It is essential to invest in the development of secure digital infrastructure that aligns with the pace of digital transformation, while allocating sufficient material and human resources to support cybersecurity operations; Governments and institutions should establish well-defined strategic plans that encompass binding policies, protocols, and legislative frameworks to address the intensifying digital threat landscape; Public awareness campaigns and continuous training initiatives should be launched to educate users across all sectors on cyber risks and preventive measures; Educational and training programs should be strengthened to prepare skilled national professionals in the field of cybersecurity, with particular attention to modern technological competencies; Artificial intelligence solutions, machine learning models, and big data analytics should be adopted to enhance threat detection capabilities and ensure rapid response to emerging risks; Dedicated units should be established to monitor digital networks and manage cyber incidents with professionalism and speed; Cooperation should be encouraged between institutions at both national and international levels to facilitate the exchange of information and expertise related to cyber threats and security strategies; Cybersecurity must be understood not as a standalone component, but as an integral and indispensable element of digital transformation efforts, ensuring the long-term success and resilience of digital initiatives. Appendix TABLE 1. Impact of Digital Transformation Models on Cybersecurity TABLE 2. Digital Transformation Models References Scientific literature and conference papers: Admass, W. S., Munaye, Y. Y., Diro, A. A. (2024). Cyber security: State of the art, challenges and future directions. Cyber Security and Applications, 2, 100031.s Available at: <https://doi.org/10.1016/j.csa.2024.100031](https://doi.org/10.1016/j.csa.2024.100031>; AsSadhan, B., Moura, J. M. F. (2014). An efficient method to detect periodic behavior in botnet traffic by analyzing control plane traffic. Journal of Advanced Research, 5 (4). Available at: <https://doi.org/10.1016/j.jare.2013.11.005>; <https://doi.org/10.1016/j.jare.2013.11.005>; Bara, S. (2017). Cybersecurity in Algeria: Institutions and policies. Algerian Journal of Human Security, (04), Algeria; Bougrara, Y. (2018). Cybersecurity: The Algerian strategy for security and defense in cyberspace. African and Nile Basin Studies Journal (3), Democratic Center, Berlin; Chaouchi, K., Khellouf, Z. (2023). Digital transformation in Algeria. Journal of Accounting, Auditing, and Finance (01), Algeria; Daoud, M. M., Serag, A. A. (2022). A proposed Framework for Studying the Impact of Cybersecurity on Accounting Information to Increase Trust in The Financial Reports in the Context of Industry 4.0: An Event, Impact and Response Approach. Trade and Finance, 42(1); Ferhane, F. (2017). The skills and core capabilities essential to the success of digital transformation in enterprises. Revue des Sciences Économiques, 13(15); Gunduz, M. Z., Das, R. (2020). Cyber-security on smart grid: Threats and potential solutions. Computer Networks, 169, 107094. Available at: <https://doi.org/10.1016/j.comnet.2019.107094](https://doi.org/10.1016/j.comnet.2019.107094)>; Hamidi, H., Taileb, N. (2022). A conceptual introduction to cybersecurity. Madar Journal for Digital Communication Studies (Issue unspecified), Algeria; Henriette, E., Feki, M., Boughzala, I. (2016). Digital transformation challenges. Mediterranean Conference on Information Systems (MCIS). AIS Electronic Library (AISeL); Manasra, Y. (2023). Reconciling internet governance and state cybersecurity. Voice of Law Journal (2), Algeria; Rahmawati, M. L., Sukoharsono, E. G., Rahman, A. F., Prihatiningtias, Y. W. (2023, June). Demistifying of Triple-Entry Accounting (TEA): Integrating the Block Economics Education, In Ninth Padang International Conference on Economics, Business and Management, Accounting and Entrepreneurship (PICEEBA 2022), Atlantis Press; Slaimi, D., Bouchi, Y. (2019). Digital transformation between necessity and risks. Journal of Legal and Political Sciences (2), Algeria; Thakur, K., Qiu, M., Gai, K., Ali, M. L. (2016). An investigation on cyber security threats and security models. InProceedings of the 2nd IEEE International Conference on Cyber Security and Cloud Computing (CSCloud 2015) - IEEE International Symposium on Smart Cloud, IEEE. Available at: <https://doi.org/10.1109/CSCloud.2015.71>; <https://doi.org/10.1109/CSCloud.2015.71>. Reports: (2024). ENISA Threat Landscape 2024. European Union Agency for Cybersecurity. Available at: <https://www.enisa.europa.eu/publications/enisa-threat-landscape-2024>; (2024). Fiscal Year 2024 Annual Report on Cybersecurity and Privacy Program (SP 800-236). National Institute of Standards and Technology. Available at: <https://www.nist.gov/publications/fiscal-year-2024-annual-report-nist-cybersecurity-and-privacy-program>. Lgeal Acts: People’s Democratic Republic of Algeria. (2006). Law No. 06-23 of 29 Dhu al-Qi’dah 1427 AH amending and supplementing Ordinance No. 66-156 of 18 Safar 1386 AH (June 8, 1966) relating to the Penal Code (Official Gazette, No. 84); People’s Democratic Republic of Algeria. (2009). Law No. 09-04 of 14 Sha’ban 1430 AH containing the specific rules for the prevention of crimes related to information and communication technologies and their combating (Official Gazette, No. 43); People’s Democratic Republic of Algeria. (2015). Law No. 15-04 of 11 Rabi’ al-Thani 1436 AH establishing the general rules relating to electronic signature and certification (Official Gazette, No. 6). Court Case: Microsoft v. United States, No. 14-2985 (2d Cir. 2016). Footnotes [1] Slaimi, D., Bouchi, Y. (2019). Digital transformation between necessity and risks. Journal of Legal and Political Sciences (2), Algeria. [2] Ferhane, F. (2017). The skills and core capabilities essential to the success of digital transformation in enterprises. Revue des Sciences Économiques, 13(15), p. 52. [3] Henriette, E., Feki, M., Boughzala, I. (2016). Digital transformation challenges. Mediterranean Conference on Information Systems (MCIS). AIS Electronic Library (AISeL), p. 3. [4] Chaouchi, K., Khellouf, Z. (2023). Digital transformation in Algeria. Journal of Accounting, Auditing, and Finance (01), Algeria. [5] Bougrara, Y. (2018). Cybersecurity: The Algerian strategy for security and defense in cyberspace. African and Nile Basin Studies Journal (3), Democratic Center, Berlin. [6] Daoud, M. M., Serag, A. A. (2022). A proposed Framework for Studying the Impact of Cybersecurity on Accounting Information to Increase Trust in The Financial Reports in the Context of Industry 4.0: An Event, Impact and Response Approach. Trade and Finance, 42(1). [7] Through these standards, the American Institute of Certified Public Accountants (AICPA) seeks to assist organizations in protecting their data and ensuring business continuity. These standards include: 1. Risk Assessment: Identifying potential threats and evaluating the risks associated with systems and data; 2. Access Control:Regulating who can access sensitive information and how it is used; 3. Encryption: Applying cryptographic methods to safeguard data during storage and transmission; 4. Awareness and Training: Educating employees on cybersecurity best practices and how to recognize potential attacks; 5. Incident Response: Establishing plans for a rapid and effective response in the event of a security breach. [8] NIST. (2024). Fiscal Year 2024 Annual Report on Cybersecurity and Privacy Program (SP 800-236). National Institute of Standards and Technology. Available at: <https://www.nist.gov/publications/fiscal-year-2024-annual-report-nist-cybersecurity-and-privacy-program>. [9] Rahmawati, M. L., Sukoharsono, E. G., Rahman, A. F., Prihatiningtias, Y. W. (2023, June). Demistifying of Triple-Entry Accounting (TEA): Integrating the Block Economics Education, In Ninth Padang International Conference on Economics, Business and Management, Accounting and Entrepreneurship (PICEEBA 2022), Atlantis Press, pp. 23-31. [10] Bara, S. (2017). Cybersecurity in Algeria: Institutions and policies. Algerian Journal of Human Security, (04), Algeria. [11] Hamidi, H., Taileb, N. (2022). A conceptual introduction to cybersecurity. Madar Journal for Digital Communication Studies (Issue unspecified), Algeria. [12] People’s Democratic Republic of Algeria. (2015). Law No. 15-04 of 11 Rabi’ al-Thani 1436 AH establishing the general rules relating to electronic signature and certification (Official Gazette, No. 6). [13] Ibid. (2006). Law No. 06-23 of 29 Dhu al-Qi’dah 1427 AH amending and supplementing Ordinance No. 66-156 of 18 Safar 1386 AH (June 8, 1966) relating to the Penal Code (Official Gazette, No. 84). [14] Ibid. (2009). Law No. 09-04 of 14 Sha’ban 1430 AH containing the specific rules for the prevention of crimes related to information and communication technologies and their combating (Official Gazette, No. 43). [15] Microsoft v. United States, No. 14-2985 (2d Cir. 2016). [16] Manasra, Y. (2023). Reconciling internet governance and state cybersecurity. Voice of Law Journal (2), Algeria. [17] ENISA. (2024). ENISA Threat Landscape 2024. European Union Agency for Cybersecurity. Available at: <https://www.enisa.europa.eu/publications/enisa-threat-landscape-2024>. [18] Hamidi, H., Taileb, N. (2022). A conceptual introduction to cybersecurity. Madar Journal for Digital Communication Studies (Issue unspecified), Algeria. [19] Gunduz, M. Z., Das, R. (2020). Cyber-security on smart grid: Threats and potential solutions. Computer Networks, 169, 107094. Available at: <https://doi.org/10.1016/j.comnet.2019.107094](https://doi.org/10.1016/j.comnet.2019.107094)>. [20] Admass, W. S., Munaye, Y. Y., Diro, A. A. (2024). Cyber security: State of the art, challenges and future directions. Cyber Security and Applications, 2, 100031, p. 5. Available at: <https://doi.org/10.1016/j.csa.2024.100031](https://doi.org/10.1016/j.csa.2024.100031>. [21] AsSadhan, B., Moura, J. M. F. (2014). An efficient method to detect periodic behavior in botnet traffic by analyzing control plane traffic. Journal of Advanced Research, 5 (4), pp. 435–448. Available at: <https://doi.org/10.1016/j.jare.2013.11.005>; <https://doi.org/10.1016/j.jare.2013.11.005>. [22] Thakur, K., Qiu, M., Gai, K., Ali, M. L. (2016). An investigation on cyber security threats and security models. InProceedings of the 2nd IEEE International Conference on Cyber Security and Cloud Computing (CSCloud 2015) - IEEE International Symposium on Smart Cloud, IEEE, pp. 307-311. Available at: <https://doi.org/10.1109/CSCloud.2015.71>; <https://doi.org/10.1109/CSCloud.2015.71>.
Legal Aspects of the Emergence of Ownership Rights to the Property Acquired Throughout Marriage
The purpose of the research is to conduct a deep study of the issue related to the origin of individual ownership of spouses over property acquired during the marriage upon the termination of marriage, and to clarify the legal or practical significance of marriage registration, starting a cohabitation, or ending a cohabitation during the registered marriage when dividing property. Specifically, when and under what conditions can property acquired during marriage be considered in co-ownership of spouses according to the Civil Code of Georgia and court practice?. According to the Constitution of Georgia, the right to own and inherit property shall be recognized and guaranteed, and marriage, as a union of a woman and a man for the purpose of founding a family, shall be based on the equality of rights and the free will of spouses. The ongoing number of disputes in courts, related to the research topic, indicates its relevance. At a glance, this issue does not seem problematic, as the relevant norms of the Civil Code of Georgia provide a solution to it. However, through a reasonable interpretation of the norm, the registered marriage does not automatically establish a co-ownership regime over the property. The purpose of this article is to emphasize, through an analysis of judicial best practice, the importance of marriage registration and the role of a household. In certain cases, the existence of a household economy is a decisive factor in deeming property as co-owned. With the development of law, in relation to human rights, the classic exceptions given in a separate norm, by systematic, substantive definition, give a different rule for solving the issue, as the State acknowledges and protects universally recognized human rights and freedoms as eternal and supreme human values. While exercising authority, the people and the State shall be bound by these rights and freedoms as directly applicable law. Keywords: Registered marriage, family, cohabitation, household, co-ownership, individual ownership. Introduction The family is a multifaceted social phenomenon that combines biological and social, economic and moral, ideological and psychological relationships. Although the family has a centuries-long history of development, the importance of the modern family and the need to define the rights and responsibilities of its members from a legal standpoint, in a way that corresponds to contemporary life, remain relevant today.[1] Article 30 of the Constitution of Georgia provides for the concept of family. Family is a marriage, as a union, of a woman and a man to start a family, based on the legal equality and free will of the spouses.[2] In the modern sense, the family essentially has the same meaning, although it is characterized by many specific features. There is a general sociological and a special legal concept of family. From a sociological perspective, family is a union of persons based on marriage, kinship, and the upbringing of children, conditioned by the factors of living together, common interests, and mutual care. The family relationship represents a complex form of social relations, which reflects not only the multifaceted interests of a defined circle of persons but also the corresponding characteristics of the society and the state of a given era.[3] From a legal perspective, the family is the legal bond of its members. Family relations acquire a legal character through their regulation by legal norms. This is possible by establishing mandatory rules within the limits of the state’s ability to influence the behavior of family members.[4] With the legislative amendments to the Civil Code of Georgia of September 17, 2024, the concept of marriage was formulated in a new edition. Specifically, marriage is a voluntary union of a woman and a man to create a family, which is registered at the territorial office of the legal entity of public law, the Public Service Development Agency operating under the governance of the Ministry of Justice of Georgia (hereinafter, the territorial office of the Agency). For this article, a woman is a person identified as female based on hereditary genetic characteristics, and a man is a person identified as male based on hereditary genetic characteristics.[5] Other contractual relations may undergo changes, be restricted or expanded, or fully altered by the consent of the parties, but this cannot occur with marriage. As soon as the parties express their consent to marriage, legislative regulation immediately takes effect, creating various obligations for the parties.[6] Marriage is the foundation of the family. It primarily reflects the unity of spiritual, moral, as well as personal and property relations.[7] After the dissolution of a marriage, the issue of dividing property acquired during cohabitation arises. When considering this issue, the court is guided by such criteria as marriage registration, household economy, and the statute of limitations. Methodology The research is based on the doctrinal legal method; the relevant norms of the Constitution of Georgia, of the Civil Code of Georgia, and the Civil Procedural Code of Georgia are analysed within the framework of the mentioned method. A case analysis approach has been used to identify interpretations related to marital property relations, especially based on the practice of the Supreme and Constitutional Courts, as well as lower instances. The legal comparative method is used to analyse the foreign jurisdictions (Turkey, Belgium, the Netherlands, Italy, the USA) and decisions of the European Court of Human Rights to see the place of Georgian regulations in a broader international context. Based on doctrinal and scientific sources, Georgian and foreign family and property law is discussed in the research. The interpretation of norms is carried out using systematic and teleological approaches to ensure compliance with constitutional principles and human rights standards. The research is done through the analysis of normative-legal and judicial practice and does not include empirical or sociological research. 1. The Importance of Marriage Registration Being in a registered marriage is a personal right of an individual. Many couples cohabitate without registration. The law does not create a family; the law creates the structure through which the family is recognized and protected.[8] According to the firmly established practice of the European Court of Human Rights, marriage has gone beyond formal relationships; the existence or non-existence of family life significantly depends on the actual existence of a close personal relationship.[9] In its 1994 decision, the European Court clarified that “the concept of family relationships is not limited only to relationships based on marriage and may include other de facto family ties where the parties live together without marriage”. In the modern world, interest in family law is mainly determined by the social and economic aspects of the relationships between family members, including the financial consequences following the dissolution of marriage, among others.[10] Theoretically, the significance of marriage registration is limited to the fact that spouses acquire rights and obligations established by law toward each other. Marriage gives rise to mutual personal and property rights and obligations of the spouses.[11] In the United Kingdom, when a marriage is dissolved and the parties cannot agree on the distribution of property, they apply to the court, and the court decides on the distribution of property, including its sale.[12] Article 1151 of the Civil Code of Georgia links the emergence of spouses’ rights and obligations exclusively to the registration, and concerning the moment of the emergence of spouses’ rights and obligations, any different interpretation of this provision contradicts its normative content.[13] An unregistered marriage does not grant any rights over acquired property.[14],[15] Determining de facto “family life” may have legal significance in other cases, for example, in establishing paternity or in cases concerning relationships between parents and children.[16] Hence, Georgian legislation does not provide for equating the legal consequences of cohabitation with those of marriage.[17] The Cassation Court explained that Article 1158 of the Civil Code contains the legal regulation of property acquired by spouses during marriage. Practically, the norm determines the ownership of property acquired by spouses within a specific time frame (during marriage). However, the mere registration of marriage is not decisive for extending the legal regime of a registered spouse’s ownership of property, in cases where it has been established that, at the time of acquiring the disputed property, the spouses no longer maintained a common household and the marriage, despite being still registered, was factually terminated. The legislator is guided by the presumption that, as per rule, common property, for Article 1158 of the Civil Code, is created through the spouses’ joint funds, joint management of the household, and joint labor.[18] The factual termination of marriage may also serve as grounds for deprivation of inheritance rights. Specifically, according to Article 1341 of the Civil Code of Georgia, by a court decision, a spouse may be deprived of the legal right of inheritance if it is confirmed that the marriage with the decedent was factually terminated at least three years before the opening of the estate and the spouses were living separately.[19] Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms guarantees everyone the right to respect for his or her family life. According to the precedent of the European Court of Human Rights, this provision is subject to broad interpretation and encompasses all aspects of family life that are established in a democratic society and serve the well-being of that society.[20] Among the categories protected by this norm are the inviolability of a person’s family life, every individual’s legitimate possibility to freely choose as a spouse the person with whom they wish to establish family relations, as well as the right to terminate family life.[21] In the case of Şerife Yiğit v. Turkey, the European Court of Human Rights established that the respondent state had not violated Articles 8 and 14 of the European Convention for the applicant. The Grand Chamber of the European Court compared the case with Muñoz Díaz v. Spain and explained that, unlike it, Şerife Yiğit could not have had a legitimate expectation for the recognition of the legal consequences of cohabitation by the state. The Court emphasized the clarity and accessibility of the civil marriage regulatory norms in the Republic of Turkey and confirmed the state’s right to require the registration of civil marriage.[22] The second book of the Turkish Civil Code is dedicated to family law. Articles 134-144 of the third section regulate the procedure for submitting and registering a marriage application. Article 134 of the Turkish Civil Code defines that, man and a woman to marry each other apply together to the marriage registry office in the domicile of one of the parties. The following articles determine the form of application submission, the list of required documents, deadlines, and other procedures related to registration.[23] On this issue, the legislation is so clear that it cannot be interpreted in other way. 2. The Importance of the Essence of Household Economy in Property Division Similar to the legislative regulation in Belgium,[24] for property acquired during cohabitation to be considered jointly owned, the first and essential prerequisite is the existence of a registered marriage. A marriage certificate is prima facie evidence of the existence of marriage.[25] There are countries where, despite an unregistered marriage, couples still have rights. For example, in the Kingdom of the Netherlands, citizens are given the freedom to choose between civil partnerships and marriage, and a special municipal service establishes and maintains a register for persons in unregistered marriages.[26] As for the American approach, it differs from state to state. In some states, a religious certificate is sufficient for marriage, but in some states do not recognize de facto cohabitation and require registration for the validity of the marriage. Israeli law chooses a religious nature for marriage, and its authority is exercised by the relevant hierarchy. Based on the example of Italy, it can be said that this is a hybrid model where both religious and civil marriages operate. According to the current legislation in Georgia, no lever would legally equate a de facto (unregistered marriage) with a registered marriage.[27] If there is no registered marriage, then persons in an unregistered domestic cohabitation, as per the general rule, initiate a dispute over ownership of the acquired property[28] under the regulatory norms of unjust enrichment.[29] Property and marriage are both ancient and almost universal social institutions.[30] Under family law, the property of spouses is divided into two parts: individual (i.e., separate) and common property. Individual property is the property that belongs to one of the spouses and is disposed of exclusively by them. This rule is regulated by Articles 1161 and 1162 of the Civil Code. Joint property is considered to be all property (movable and immovable) acquired during the spouses’ cohabitation, which was acquired (or created) through the joint labor and funds of both spouses, as well as property acquired by one of the spouses, even if one of them was engaged in household activities, took care of children, or, for another valid reason, did not have an independent income.[31] The Supreme Court of Georgia provided an important interpretation in one of the cases.[32] Specifically, the Cassation Court did not uphold the claimant’s (cassator’s) argument and noted that although the disputed immovable property had been purchased by the respondent with money gifted by his father, it could not be considered the respondent’s individual property. The Cassation Court explained that, in determining the ownership form (personal or joint) of an item received as a gift by a spouse during marriage, the donor’s intent is of essential importance. In the present case, the intent of the respondent’s father was directed toward ensuring the well-being of the respondent’s family and serving the family’s common interests. This is confirmed by the fact that the respondent lived in the disputed immovable property together with his spouse and child. The claimant himself confirmed that the location of the disputed house was chosen at the request of the plaintiff, close to the mother’s house (see subparagraph 11.3 of this ruling). Based on all the above, the disputed residential house, which the claimant purchased during marriage with money gifted by his father, was intended for the entire family and, as a gift, lacked the character of individual use.[33] Each spouse’s personal property includes: a) property that belonged to them before marriage; b) property received as a gift or by inheritance. The spouses’ personal property also includes items of personal use (clothing, footwear, etc.), even if they were acquired during the marriage with the spouses’ common funds, except for jewelry. A spouse’s individual property may be recognized as the spouses’ joint property if it is established that, as a result of expenses incurred during marriage, the value of this property significantly increased (capital repairs, completion of construction, reconstruction, etc.). A similar regulation is also found in Belgian family law.[34] Property acquired by spouses during marriage refers to all types of property (immovable and movable) acquired (or created) through the joint labor and funds of both spouses during the marriage period. Joint marital property includes salaries and other monetary income, regardless of whose name they are registered under. Marital common property is property jointly acquired by the spouses. Acquisition does not mean merely the payment of money, but also that both spouses expressed their will for the property to become their joint ownership. Hence, when determining whether immovable property should be considered as spouses’ common property, the decisive factor is the acquisition of the property jointly, with common funds, during a registered marriage.[35] In one of the cases, the court rejected the respondent’s claim and stated that, although the disputed immovable property was purchased by the respondent with money received from selling an agricultural land plot (cadastral code ……, area 2,052 sq. m.), it constitutes the spouses’ common property. By combining the undisputed and determined facts, the court concluded that, on 28 May 2008, the Municipal Council of Khelvachauri recognized the respondent’s ownership of a 2,052 sq. m. agricultural land plot, which was registered in the Public Registry as the respondent’s property on 22 February 2012 and was sold on April 13, 2017, for USD 143,780. The same decision further elaborates that the disputed apartments purchased on 27 October 2017 cannot be considered the respondent’s personal property. The court explained that, in determining the ownership form of acquired property (personal or common), the purpose of the acquisition is of essential significance. In the case at hand, the respondent’s purchase of the property was aimed at ensuring the family’s well-being and served the family’s common goals, which is confirmed by the fact that the respondent lived in the disputed immovable property with his spouse and child. Before moving in, the apartments were rented out, and the income was used for the family. It was also an undisputed fact that the plaintiff was employed during the marriage, had an income, and raised the child. The respondent’s purpose in purchasing the disputed apartments was directed toward the family. The court could not accept the statement of the respondent’s mother (one of the respondents) that the land, the proceeds from the sale of which were used to purchase the disputed apartments, was ancestral property. The court noted that, at the time of purchasing the disputed apartments, the respondent was in a registered marriage; therefore, the property acquired during that period is considered the spouses’ joint property.[36] The decisions of the common courts of Georgia confirm how essential a household economy is. 3. Legal Consequences of the Disposal of Property Acquired During Marriage by One Spouse It happens rarely that the property acquired during marriage is registered in the joint ownership of both spouses. Once problems arise in the personal relationship, the spouse in whose name the property is registered often attempts to hinder the other by formally transferring the property to another person. Judicial practice is also abundant in this regard. Article 1160.1 of the Civil Code of Georgia requires mutual consent of spouses for the disposal of common marital property, regardless of which spouse disposes of it. Therefore, the disposal of the co-ownership share by the registered owner is relatively voidable, and its validity depends on the consent of the other spouse. However, under the second paragraph of the same article, the interests of the acquirer are protected against claims by a spouse who is not registered as the owner in the Public Registry but has such a right by virtue of property acquisition during a registered marriage. This legislative framework demonstrates that the right of the unregistered spouse to property acquired during marriage is not absolute. In the event of the disposal of spouses’ co-owned property (including the other spouse’s share) by the registered owner, the realization of the unregistered spouse’s proprietary rights depends on specific circumstances, particularly on proving the bad faith of the acquirer. Analysing the provisions of Article 1160.2 and Articles 312.3 and 312.4 of the same Code (“3. If an owner disposes of immovable property or encumbers it with a right, it is inadmissible to require the consent of a co-owner for concluding the transaction (or registering the right), if the co-owner is not registered as such in the Public Registry. In the situation as described in paragraph 3 of this article, in the interests of the acquirer, the transferor shall be deemed the sole owner if registered as such in the Public Registry, except when the acquirer knew that, apart from the transferor, there was another co-owner”), the court reckons that, when disposing of jointly owned property, the dispute raised by a spouse who is not registered as an owner will result in the invalidation of the transaction only if it is proven that the acquirer not only knew about the existence of another co-owner but was also aware that the unregistered spouse objected to the disposal of the property.[37] In all other cases, it is presumed that the registered owner acts in agreement with the spouse, and the acquirer is believed to have acted in good faith regarding the acquisition. It is also noteworthy that, in the competition of interests between a good-faith acquirer and a spouse unregistered as a co-owner, the legislation, based on the formulation of the above-mentioned norms, gives priority to the good-faith acquirer.[38] The parties enjoy the principle of freedom of contract and have the right, within the scope of the law, to freely conclude contracts and determine their content (Article 319 of the Civil Code of Georgia). A contractual term is not predetermined; parties may agree on any matter. For this, they do not require any special permission or adherence to a specific content. The main requirement is that their agreement must not contradict the law, must comply with moral standards, and must not violate public order. To evaluate a transaction, the features of the transaction must be analysed. According to Article 56(1) of the Civil Code of Georgia: “A transaction made only for appearance, without the intention of producing the corresponding legal consequences, shall be void (a simulated transaction)”. Paragraph 2 of the same article stipulates that ”If the parties wish to cover up another transaction with a simulated one, then the rules applicable to the concealed transaction shall apply (a sham transaction)”. A transaction is simulated when both the declarant and the recipient of the will agree that the declared will shall not take effect and shall not produce the legal consequences typical of the transaction; in other words, they simulate the achievement of an outwardly expressed intention. For a transaction to be deemed simulated, the decisive fact is that the parties did not intend to bring about the legal consequences indicated in the transaction. A simulated transaction is void because the agreement between the parties lacks authenticity. Unlike a simulated transaction, a sham transaction is valid. The burden of proof, in both simulated and sham transactions, lies with the person who asserts that such a transaction exists. According to the judicial practice, in the case of simulated transactions, the burden of proving the inauthenticity of the parties’ will be upon the person who believes that the simulated transaction has violated their right. The court must establish the circumstances that indicate a defect in the expression of will, an agreement on a fictitious transaction, and a shared purpose inconsistent with the expression of the parties’ will.[39] When discussing the invalidity of a transaction, the court pays attention to the time of transfer, as well as the relationship between the transferor and the acquirer, and decides based on this. If the court determines that the disposal of the property was simulated, the plaintiff’s claim will be upheld, and the property will be recognised as a part of the plaintiff’s co-ownership. 4.Statute of Limitations According to Article 133 of the Civil Code of Georgia, as long as the marriage exists, the statute of limitations is suspended for claims between spouses. The same rule applies to claims between parents and children until the children reach adulthood, as well as to claims between guardians (custodians) and their wards throughout the entire guardianship period. Under Article 1171, a three-year statute of limitations is established for claims regarding the division of jointly owned property of divorced spouses. According to Article 128.1 of the same Code, the statute of limitations applies to the right to demand that another person perform an act or refrain from performing an act. Article 130 further provides that the statute of limitations begins from the moment the claim arises. The moment of the claim’s origin is considered to be the time when the person became aware or should have become aware of the violation of their right. The purpose of establishing a statute of limitations is to eliminate the risk of disproportionate or abusive exercise of rights by the creditor. In addition, a) The statute of limitations facilitates the process of establishing and examining facts in court, thereby contributing to well-reasoned decisions; b) It promotes stability in civil turnover; c) It strengthens mutual control among subjects of civil law relations and creates an incentive for the prompt restoration of violated rights.[40] The statute of limitations for the claim refers to a specific period during which a person whose right has been violated has the opportunity to demand the enforcement or protection of their rights through legal (coercive) means. Once this period expires, the person loses the right to exercise such an opportunity; the right is invalid. “The litigation opportunities of the parties are often limited by time. In civil law, after the expiration of the statute of limitations, a person loses the opportunity to protect their right through the court”.[41] According to Article 1171 of the Civil Code of Georgia, the objective moment for the commencement of the statute of limitations is the registration of the divorce. This is because divorced spouses are presumed to be immediately aware of the existence of their right to claim, especially given that the existence or absence of a property dispute between the parties is one of the criteria determining the procedure for resolving the issue of divorce.[42] After the termination of the joint household, the parties may register the divorce after a certain period; however, the statute of limitations begins to run only from the moment of the official registration of the divorce. Therefore, a person still has the right to claim ownership of property acquired during cohabitation, provided that the claim is filed within three years. 5. The Distribution of the Burden of Proof In a civil case, the only way to reach a reasoned decision is through assertion, which establishes the factual circumstances significant for the case. The process of proof implies the activities of the parties and the court, aimed at determining the existence or non-existence of facts relevant to resolving the case. The evidentiary activities of the parties and the court include the following stages: determination of the subject of proof; collection of evidence (disclosure of evidence, its gathering, and submission to the court); examination of evidence in court; evaluation of evidence. The circumstances that require proof are those that substantiate the claim and the factual grounds of the lawsuit, the denial of the factual grounds and the claim by the opposing party, as well as the circumstances essential for the substantive resolution of the case.[43] The judicial process of assertion is an activity carried out by the parties and the court within the framework and according to the rules established by law. The parties present evidence to the court to prove the facts on which they base their claims and defence. The court, complying with the principles of admissibility and relevance of evidence, accepts such evidence and evaluates it according to its inner conviction. In other words, although different participants in the judicial process of proof perform different functions, their actions are directed toward one common goal: to establish the truth and determine the circumstances crucial for the correct resolution of the case. In civil proceedings, the process of assertion, as a mediated notion, is sufficiently regulated by law. For example, according to Article 102 of the Civil Procedure Code (CPC), each party must prove the circumstances on which they base their claims and defence. The law determines which party must prove which factual circumstances; it also establishes which party bears the burden of stating and proving facts, which facts do not require proof, what means of proof are admissible or inadmissible, as well as how evidence is collected, verified, and assessed. Civil law follows the principle of “affirmanti, non neganti incumbit probatio” (the burden of proof lies on the one who asserts, not on the one who denies). The plaintiff can achieve a favourable outcome and have their claim granted only based on certain facts to which the law links the granting of the plaintiff’s substantive legal claim. The same applies to determining the range of facts relevant for substantiating the parties’ claims or defence. It is the obligation of the parties themselves to indicate the facts supporting their claims and defence. The Cassation Chamber clarified that Article 1158 of the Civil Code establishes the presumption that property acquired by spouses during marriage constitutes their joint property (co-ownership). This norm defines the co-ownership regime of spouses, which determines their rights regarding property acquired during marriage and serves the purpose of protecting family interests. Specifically, it is presumed that property acquired during marriage is obtained for managing the household and achieving common family goals. Therefore, in case of a dispute, the fact of acquiring property during marriage (except in cases explicitly provided by law) is sufficient to consider such property as co-owned by the spouses. Within the framework of this presumption, the burden of proving the contrary lies with the party disputing this circumstance.[44] Conclusion The analysis of court decisions, various dissertations, academic articles, and literature in this field of law once again confirms that family law is directly linked to the customs and traditions of society. Unlike other branches of law, which can be unified relatively easily, family law is so deeply intertwined with a country’s values that any changes in this area require great precaution. According to legislative provisions, for property acquired during marriage to be considered joint marital property, the registration of the marriage is the primary prerequisite. Only after this does the court examine the existence of a household. If the court establishes that the property was acquired within a household and served the interests of the family, the property must be considered joint marital property, regardless of the source of the funds used for its acquisition. However, once the household is dissolved, the regime of co-ownership no longer applies to property acquired within the scope of a registered marriage. Court decisions in this field must be timely and responsive to the challenges of contemporary society. When interpreting legal norms, the court applies the principle of reasonable judgment. Through such interpretation, even laws enacted decades ago gain vitality and practical applicability in modern judicial practice. References Scientific literature: Barker, R. A., Alexander, V. C. (2006). Hearsay Exceptions Where Availability of the Declarant is Immaterial. In 5 N.Y. Prac., Evidence in New York State and Federal Courts § 8:56; Boele-Woelki, K. (2005). Common Core and Better Law in European Family Law. Antwerp-Oxford. Cited in Meladze, G. (2022). Property Obligations of Spouses. Law Journal, (2). (in Georgian). Available at: <https://doi.org/10.60131/jlaw.2.2022.7021>; <https://jlaw.tsu.ge/index.php/JLaw/article/view/7021>; Chanturia, L. (2017). Commentary on the Civil Code. Book I. (In Georgian); Duncan, W. C. (2004). The State Interests in Marriage. Ave Maria Law Review, Vol. 2, No. 1. Available at: <https://ssrn.com/abstract=2233190> (Last access: 02.03.2025); Dzlierishvili, (2018). Gifting and Life Annuity. Publishing House “Meridiani”, Tbilisi. (In Georgian); Japaridze, K. (2015). Personal and Property Relations of Parents and Children. Dissertation, Tbilisi. (In Georgian); Luthra, S. (2022). The Right to Property - Tracing the Women’s Right to Property Across USA, UK & India. Indian Journal of Law and Legal Research. Available at: <https://ssrn.com/abstract=4209214> (Last access: 02.03.2025); McCormack, J. L. (2008). Title to Property, Title to Marriage: The Social Foundation of Adverse Possession and Common Law Marriage. Valparaiso University Law Review, Vol. 42, No. 2, Loyola University Chicago School of Law Research Paper No. 2011-012. Available at: <https://ssrn.com/abstract=1885811> (Last access: March 02, 2025); Misabishvili G. (2025). Issues of Perfecting the Ranks of Legal Heirs in Georgian Legislation. (2025). Law and World, 11(33). Available at: <https://doi.org/10.36475/11.1.5>; Shengelia, R., Shengelia, E. (2011). Family Law. Meridiani. (In Georgian); Sumner, I., Warendolf, H. (2003). Family law legislation of the Netherlands; See Misabishvili, G. (2025). Issues of Perfecting the Ranks of Legal Heirs in Georgian Legislation. Law and World, 11(33). Available at: <https://doi.org/10.36475/11.1.5>; Verbeke, A. P. G. (2013). A New Deal for Belgian Family Property Law; Verbeke, A.-L. (2013). A new deal for Belgian family property law, in Alofs, E., Byttebier, K., Michielsens, A., Verbeke, A.-L. (eds.). (2013). Liber Amicorum Hélène Casman, Antwerp/Cambridge, Intersentia. Available at: <https://ssrn.com/abstract=2312659> (Last access: March 02, 2025). Legal acts: Civil Code of Turkey. Available at: <https://rm.coe.int/turkish-civil-code-family-law-book/1680a3bcd4> (Last access: 08.2025). Constitution of Georgia. (08.1995). No. 786-RS. Available at: <https://matsne.gov.ge/ka/document/view/30346?publication=36> (Last access: 07.09.2025). (In Georgian); Civil Procedure Code of Georgia. (14.11.1997). No. 1106 –I. (In Georgian). Law of Georgia On Amendments to the Civil Code of Georgia. (17.09.2024). 4438-XVIMS-XMP. Available at: <https://matsne.gov.ge/ka/document/view/6283255?publication=0#DOCUMENT:1;> (Last access: 07.09.2025). (In Georgian). Court decisions and recommendation: Civil Cases Board of the Batumi City Court. (02.09.2022). Decision in the case 010210122005629412. (In Georgian); Civil Cases Chamber of the Supreme Court of Georgia. (02.03.2018). Decision in the case ას-1426-1346-2017. (In Georgian); Civil Cases Chamber of the Supreme Court of Georgia. (08.10.2018). Decision in the case No. ას-1160-2018. (In Georgian); Civil Cases Chamber of the Supreme Court of Georgia. (09.12.2013). Decision in the case No. ას-531-505-2013. (In Georgian); Civil Cases Chamber of the Supreme Court of Georgia. (15.07.2016). Decision of the case No. ას-458-440-2016. (In Georgian); Civil Cases Chamber of the Supreme Court of Georgia. (16.03.2016). Decision in the case ას-7-7-2016, 16.03.2016; (24.11.2017) Decision in the case No. ას-1169-1089-2017. (In Georgian); Civil Cases Chamber of the Supreme Court of Georgia. (16.03.2016). Decision in the cases: No. ას-7-7-2016; (14.02.2022) in the case ას-1760-2018; (15.05.2008) in the case No. ას-968-1269-07. (In Georgian); Civil Cases Chamber of the Supreme Court of Georgia. (22.01.2020). Decision in the case ას-1432-2019. (In Georgian); Civil Cases Chamber of the Supreme Court of Georgia. (22.07.2015). Decision in the case No. ას-187-174-2015. (In Georgian); Civil Cases Chamber of the Supreme Court of Georgia. (23.04.2019). Decision in the case ას-963-2018. (In Georgian); Civil Cases Chamber of the Supreme Court of Georgia. (24.02.2017). Decision in the case ას-1206-1166-2016. (In Georgian); Civil Cases Chamber of the Supreme Court of Georgia. (25.03.2021). Decision in the case No. ას-1226-2020. (In Georgian); Civil Cases Chamber of the Supreme Court of Georgia. (25.04.2019). Decision in the case ას-963-2018. (In Georgian); Civil Cases Chamber of the Supreme Court of Georgia. (28.03.2024). Decision in the Case No. ას-1159-2023. (In Georgian); Civil Cases Chamber of the Supreme Court of Georgia. (30.04.2010). Decision in the case ას-571-879-09. (In Georgian); Civil Cases Chamber of the Tbilisi City Court. (19.12.2022). Decision in the case No. 330210021005025429. (In Georgian); Civil Cases Panel of the Batumi City Court. (29.09.2023). Decision in the case No. 010210023006933423. (In Georgian); Civil Cases Chamber of the Supreme Court of Georgia. (15.02.2019). Decision in the case No. ას-1753-2018. (In Georgian); Constitutional Court of Georgia. (30.04.2003). Decision in the case No. 1/3/161, “Citizens of Georgia – Olga Sumbatashvili and Igor Khaprov vs. the Parliament of Georgia”. (In Georgian); ECtHR, Kroon and Others v. The Netherlands. (Case No. 18535/91; 10.1994). Decision. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57904%22]}> (Last access: 02.03.2025); ECtHR, Şerife Yiğit v. Turkey. (Case No. 3976/05; 02.11.2010). Available at: <https://hudoc.echr.coe.int/eng#{%22tabview%22:[%22document%22],%22itemid%22:[%22001-101579%22]}>. Cited in the Supreme Court of Georgia case No. ას-1760-2018. (14.02.2022). (In Georgian); Maynard v. Hill. 125 U.S. 190, 2011 (1888). Available at: <https://supreme.justia.com/cases/federal/us/125/190/> (Last access: 02.03.2025). Civil Cases Chamber of the Supreme Court of Georgia. (24.10.2019). Decision in the case No. ას-205-2019; Supreme Court of Georgia. (2007). Recommendations on problematic issues of civil law judicial practice. Tbilisi; cf. Supreme Court of Georgia. (11.06.2012). Decision in the case ას-547-515-2012. (In Georgian). Footnotes [1] Japaridze, K. (2015). Personal and Property Relations of Parents and Children. Dissertation, Tbilisi, p. 27. (In Georgian). [2] Constitution of Georgia. (24.08.1995). No. 786-RS. Article 30. Available at: <https://matsne.gov.ge/ka/document/view/30346?publication=36> (Last access: 07.09.2025). (In Georgian). [3] Shengelia, R., Shengelia, E. (2011). Family Law. Meridiani, p. 10. (In Georgian). [4] Ibid., p. 11. [5] Law of Georgia On Amendments to the Civil Code of Georgia. (17.09.2024). No. 4438-XVIMS-XMP. Available at: <https://matsne.gov.ge/ka/document/view/6283255?publication=0#DOCUMENT:1;> (Last access: 07.09.2025). (In Georgian). [6] Maynard v. Hill. 125 U.S. 190, 2011 (1888). Available at: <https://supreme.justia.com/cases/federal/us/125/190/> (Last access: 02.03.2025). [7] Civil Cases Chamber of the Supreme Court of Georgia. (25.03.2021). Decision in the case No. ას-1226-2020, para 69. (In Georgian). [8] Duncan, W. C. (2004). The State Interests in Marriage. Ave Maria Law Review, Vol. 2, No. 1, p. 173. Available at: <https://ssrn.com/abstract=2233190> (Last access: 02.03.2025). [9] ECtHR, Kroon and Others v. The Netherlands. (Case No. 18535/91; 27.10.1994). Decision. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57904%22]}> (Last access: 02.03.2025). [10] Boele-Woelki, K. (2005). Common Core and Better Law in European Family Law. Antwerp-Oxford, p. 5. Cited in Meladze, G. (2022). Property Obligations of Spouses. Law Journal, (2), p. 77. (in Georgian). Available at: <https://doi.org/10.60131/jlaw.2.2022.7021>; <https://jlaw.tsu.ge/index.php/JLaw/article/view/7021>. [11] Civil Cases Panel of the Batumi City Court. (29.09.2023). Decision in the case No. 010210023006933423, para. 6.4. (In Georgian). [12] Luthra, S. (2022). The Right to Property - Tracing the Women’s Right to Property Across USA, UK & India. Indian Journal of Law and Legal Research, p. 9. Available at: <https://ssrn.com/abstract=4209214> (Last access: 02.03.2025). [13] Civil Cases Chamber of the Supreme Court of Georgia. (16.03.2016). Decision in the cases: No. ას-7-7-2016; (14.02.2022) in the case No. ას-1760-2018; (15.05.2008) in the case No. ას-968-1269-07. (In Georgian). [14] Civil Cases Chamber of the Supreme Court of Georgia. (08.10.2018). Decision in the case No. ას-1160-2018. (In Georgian). [15] According to Article 1158 of the Civil Code of Georgia: 1. Property acquired by spouses during marriage constitutes their common property (co-ownership), unless otherwise stipulated by the marriage contract between them. 2. The right of co-ownership of spouses to such property arises even if one of them was engaged in household activities, took care of children, or did not have an independent income for another valid reason. [16] ECtHR, Kroon and Others v. The Netherlands. (Case No. 18535/91; 27.10.1994). Decision. See Civil Cases Chamber of the Supreme Court of Georgia. (24.10.2019). Decision in the case No. ას-205-2019. [17] Civil Cases Chamber of the Supreme Court of Georgia. (28.03.2024). Decision in the Case No. ას-1159-2023, para. 22. (In Georgian). [18] Ibid. (25.03.2021) Decision in the case No. 1226-2020, para. 71. (In Georgian). [19] Ibid. (22.07.2015). Decision in the case No. ას-187-174-2015. (In Georgian). [20] Ibid. (15.07.2016). Decision of the case No. ას-458-440-2016. (In Georgian). [21] Ibid. (15.02.2019). Decision in the case No. ას-1753-2018. (In Georgian). [22] See ECtHR, Şerife Yiğit v. Turkey. (Case No. 3976/05; 02.11.2010). Available at: <https://hudoc.echr.coe.int/eng#{%22tabview%22:[%22document%22],%22itemid%22:[%22001-101579%22]}> Cited in the Supreme Court of Georgia case No. ას-1760-2018. (14.02.2022). (In Georgian). [23] Civil Code of Turkey. Articles 134-144. Available at: <https://rm.coe.int/turkish-civil-code-family-law-book/1680a3bcd4> (Last access: 14.08.2025). [24] Verbeke, A. P. G. (2013). A New Deal for Belgian Family Property Law; Verbeke, A.-L. (2013). A new deal for Belgian family property law, in Alofs, E., Byttebier, K., Michielsens, A., Verbeke, A.-L. (eds.). (2013). Liber Amicorum Hélène Casman, Antwerp/Cambridge, Intersentia, p. 471. Available at: <https://ssrn.com/abstract=2312659> (Last access: March 02, 2025). [25] Barker, R. A., Alexander, V. C. (2006). Hearsay Exceptions Where Availability of the Declarant is Immaterial. In 5 N.Y. Prac., Evidence in New York State and Federal Courts § 8:56. [26] Sumner, I., Warendolf, H. (2003). Family law legislation of the Netherlands, p. 245; See Misabishvili, G. (2025). Issues of Perfecting the Ranks of Legal Heirs in Georgian Legislation. Law and World, 11(33), pp. 60-80. Available at: <https://doi.org/10.36475/11.1.5>. [27] Misabishvili G. (2025). Issues of Perfecting the Ranks of Legal Heirs in Georgian Legislation. (2025). Law and World, 11(33), pp. 60-80. Available at: <https://doi.org/10.36475/11.1.5>. [28] In general, the purpose of the legal institution of unjust enrichment is to reclaim unjustly and unjustifiably acquired property and thus restore the balance and justice of property circulation. For this purpose, the benefit must be returned to the person at whose expense the property of another person was increased, i.e. their unjust enrichment. The main purpose of this institution is not to fill the property deficit, i.e. compensation for damage, but to recover the property increase, restore the person to their original property-legal status, i.e. equalization of enrichment. Restoring a person to their original property-legal status and equalization of enrichment arising from unjust enrichment is not a form of civil legal liability. See Civil Cases Chamber of the Tbilisi City Court. (19.12.2022). Decision in the case No. 330210021005025429. [29] Persons in an unregistered cohabitation may purchase property with common funds and register the property not as joint ownership, but as the individual property of one of the persons. [30] McCormack, J. L. (2008). Title to Property, Title to Marriage: The Social Foundation of Adverse Possession and Common Law Marriage. Valparaiso University Law Review, Vol. 42, No. 2, Loyola University Chicago School of Law Research Paper No. 2011-012. Available at: <https://ssrn.com/abstract=1885811> (Last access: March 02, 2025). [31] Civil Cases Chamber of the Supreme Court of Georgia. (16.03.2016). Decision in the case No. ას-7-7-2016, 16.03.2016; (24.11.2017) Decision in the case No. ას-1169-1089-2017. (In Georgian). [32] Civil Cases Chamber of the Supreme Court of Georgia. (23.04.2019). Decision in the case No. ას-963-2018, para. 22. (In Georgian). [33] Dzlierishvili, Z. (2018). Gifting and Life Annuity. Publishing House “Meridiani”, Tbilisi, p. 306. (In Georgian). [34] Verbeke, A. P. G. (2013). A New Deal for Belgian Family Property Law. Verbeke, A.-L. (2013). A new deal for Belgian family property law, in Alofs, E., Byttebier, K., Michielsens, A., Verbeke, A.-L. (eds.). (2013). Liber Amicorum Hélène Casman. Antwerp/Cambridge, Intersentia, p. 466. Availabl at: <https://ssrn.com/abstract=2312659> (Last access: March 02, 2025). [35] Civil Cases Chamber of the Supreme Court of Georgia. (25.04.2019). Decision in the case No. ას-963-2018. (In Georgian). [36] Civil Cases Board of the Batumi City Court. (02.09.2022). Decision in the case No. 010210122005629412, para. 6.7. (In Georgian). [37] Civil Cases Chamber of the Supreme Court of Georgia. (30.04.2010). Decision in the case No. ას-571-879-09. (In Georgian). [38] Civil Cases Chamber of the Supreme Court of Georgia. (22.01.2020). Decision in the case No. ას-1432-2019. (In Georgian). [39] Chanturia, L. (2017). Commentary on the Civil Code. Book I, Article 56, fields 4, 7, 8, 19, 21, 22. (In Georgian). [40] Supreme Court of Georgia. (2007). Recommendations on problematic issues of civil law judicial practice. Tbilisi, p. 63, cf. Supreme Court of Georgia. (11.06.2012). Decision in the case No. ას-547-515-2012. (In Georgian). [41] Constitutional Court of Georgia. (30.04.2003). Decision in the case No. 1/3/161, “Citizens of Georgia – Olga Sumbatashvili and Igor Khaprov vs. the Parliament of Georgia”. (In Georgian). [42] Civil Cases Chamber of the Supreme Court of Georgia. (09.12.2013). Decision in the case No. ას-531-505-2013. (In Georgian). [43] Civil Cases Chamber of the Supreme Court of Georgia. (24.02.2017). Decision in the case No. ას-1206-1166-2016. (In Georgian). [44] Civil Cases Chamber of the Supreme Court of Georgia. (02.03.2018). Decision in the case No. ას-1426-1346-2017. (In Georgian).
The Arab Copyright Convention of 1981 - The Necessity of Amendment to Accommodate Digital Rights
The growing digital challenges accompanying the rise of digital creativity, alongside the efforts of Arab countries to enhance legal frameworks for protecting authors’ rights and literary works, have exposed a misalignment between the provisions of the 1981 Arab Copyright Convention and the evolving national objectives. This discrepancy necessitates revising the Convention to align with the fundamental standards for copyright protection in the digital environment, as set out in the WIPO Copyright Treaty of 1996—the first international treaty to address copyright in the context of the internet. This paper explores the necessary revisions to the 1981 Convention to incorporate digital copyright protections. It examines the legal foundations required for recognizing such rights, including the originality and fixation of digital works, presumptions of ownership, the scope and limitations of rights, applicable legal protections, and enforcement mechanisms suited to the digital context. The study offers significant academic value by addressing a key gap in comparative legal analysis between the Arab Copyright Convention and the WIPO Copyright Treaty. It integrates relevant international instruments and judicial precedents to propose practical legislative amendments compatible with the demands of the digital age. The findings contribute to the development of intellectual property scholarship and offer a concrete basis for legal reform. Ultimately, this study aims to strengthen the rights of Arab authors and promote the harmonization of regional copyright frameworks with established international standards. Keywords: Arab Copyright Convention, WIPO Copyright Treaty, digital rights, treaty amendment, strengthening the Arab legal environment. Introduction The enactment of international and regional treaties related to copyright is an expression of the necessity to regulate and protect authors’ rights at both international and regional levels, given their paramount importance in the age of technology and cross-cultural exchange among nations, as this imperative has manifested in the adoption of various agreements, most notably the Berne Convention for the Protection of Literary and Artistic Works (1886) and its subsequent amendments—Stockholm (1967), Paris (1971), and 1979—which reinforced copyright protections; additionally, the TRIPS Agreement and the WIPO Copyright Treaty (1996) emerged as critical responses to a pivotal challenge in copyright protection: the digital dissemination of creative works. The motivation behind subjecting copyright to international and regional regulatory frameworks lies in the widespread proliferation of creativity across the globe, transcending national boundaries, as the profound economic, social, and cultural impact of copyright protection on individuals and societies has driven Arab nations to adopt the Arab Copyright Convention (Baghdad, 1981), through which signatories expressed their commitment to establishing an effective and unified legal framework, where this framework aims to safeguard authors’ rights, incentivize Arab creators,[1] and promote the advancement of literature, arts, and sciences. However, the evolution of publishing methods—marked by the ease of reproducing works infinitely at minimal cost and their instantaneous global dissemination via the internet—has rendered the Arab Copyright Convention inadequate in addressing these rapid and transformative developments; consequently, there is a pressing need to revisit and adapt its provisions to align with contemporary creative and distribution methods, as well as the resulting shifts in copyright paradigms—much like the updates seen in relevant international treaties. This paper seeks to establish a foundational critique by examining the shortcomings of the Arab Copyright Convention and proposing amendments to align it with developments in international copyright law, particularly the WIPO Copyright Treaty (1996), as this treaty serves as the benchmark for proposed revisions, being the first international agreement to address copyright in the digital environment and the pioneering “Internet Treaty”. Based on the above, this paper will seek to answer the following question: What provisions must be incorporated into the Arab Copyright Convention to keep pace with evolving digital copyright norms? To address this question, the study relied on the comparative legal approach in addition to citing relevant case law and was divided into two parts. Part One: Analyzes key provisions of the WIPO Copyright Treaty (1996) as the basis for proposed amendments. Part Two: Identifies gaps in the Arab Copyright Convention and outlines necessary additions to ensure its relevance in the digital age. 1. The Protection Framework Established Under the WIPO Copyright Treaty of 1996 The 1990s witnessed a fundamental transformation, driven by the tremendous advancements in communication technologies and the widespread adoption of the internet and digital tools, as the field of intellectual property, particularly copyright law, was not immune to these changes, where the intersection of copyright with digital technology and the internet gave rise to new forms of artistic creations, distinct from traditional works in terms of their creation and distribution methods, which prompted nations to actively seek solutions by enacting treaties that keep pace with these developments, aiming to safeguard the moral and economic rights of authors. To achieve this, and to harmonize global copyright norms[2], the World Intellectual Property Organization (WIPO) Copyright Treaty of 1996 was concluded and adopted by the Diplomatic Conference on December 20, 1996. The treaty consists of a preamble and 25 articles, clarifying its relationship with the Berne Convention (the foundational copyright treaty), establishing rights for computer programs and databases, and addressing distribution rights, rental rights, obligations concerning technological measures, rights management information, as well as enforcement provisions and administrative clauses. The WIPO Copyright Treaty of 1996[3] is regarded as the first international treaty to address digital copyrights, extending protection to works emerging from digital technology and internet connectivity while ensuring the safeguards provided by prior relevant treaties, hence, it is commonly referred to as the “First Internet Treaty”, where this treaty is classified as a special agreement under Article 20 of the Berne Convention for the Protection of Literary and Artistic Works, it neither derogates from any obligations nor diminishes any rights established by the Berne Convention; rather, it maintains a close connection with it, as the treaty seeks to address the gaps in protecting digital works under the Berne Convention, as emphasized in its preamble, which states that the treaty was formulated in response to the parties’ recognition of the need for new international rules and the clarification of interpretations of existing provisions to provide appropriate solutions to issues arising from recent economic, social, cultural, and technological developments[4]—particularly the profound impact of the latter on the creation and dissemination of literary and artistic works due to their integration with the internet. 1.1 Protected works Article 2 of the 1996 WIPO Copyright Treaty (WCT) stipulates that the granted protection covers forms of expression, not ideas, procedures, methods of operation, or mathematical concepts as such; however, it refers, in defining the scope of protection, to Articles 2 through 6 of the Berne Convention[5], which address protected works, the possibility of limiting protection for certain works, the criteria for protection, the standards for protecting cinematographic and architectural works, as well as certain works of graphic and plastic arts, the guaranteed rights, the possibility of restricting protection for works of nationals from non-Union countries, and the determination of moral rights; In contrast, the WIPO Treaty introduced additional works necessitated by digital technology, emphasizing the need for their protection, primarily including: 1.1.1 Computer programs It is noteworthy that the first agreement to include specific provisions regarding computer programs and classify them as protected works was the TRIPS Agreement,[6] unlike the Berne Convention and its subsequent amendments, and before the 1996 WIPO Copyright Treaty, as Article 10(1) of TRIPS affirmed that computer programs, whether in source or object code, are protected as literary works under the Berne Convention, and the 1996 WIPO Treaty reaffirmed this in Article 4, stating that computer programs are protected as literary works under Article 2 of the Berne Convention, irrespective of their mode or form of expression. The European Court has supported this, stating in Case C 393/09 - Bezpečnostní softwarová asociace (BSA) that protection includes any form of expression of a computer program that allows replication in different computer languages, such as source code and object code. Preparatory design work, from which a program is later formed, is also included in the protection if the design is of this nature.[7] It is pertinent to highlight several concepts closely related to computer programs and their legal study:[8] Source Programs: The initial form of program writing in a programming language, varying in simplicity, complexity, and effectiveness in achieving the program’s purpose. Object Programs (Machine Code): The form executable by computers. Algorithms: A set of necessary steps to accomplish a task or calculation, either detailed initially or left for later elaboration; also defined as a sequence of instructions composed of logical and arithmetic structures representing numerous operations to achieve a specific result. Programming Languages: A set of programs that convert high-level programming languages or assembly languages into machine code, generally categorized into three types: assemblers, compilers, and interpreters.[9] 1.1.2 Digital databases The inclusion of databases as protected works under the 1996 WIPO Copyright Treaty necessitates reference to the TRIPS Agreement as the first to incorporate specific provisions for databases,[10] classifying them as protected works, as Article 10(2) of TRIPS states that databases, whether machine-readable or in any other form, constitute protected works if their content selection or arrangement represents intellectual creativity, under the Berne Convention’s provisions for literary and artistic works; however, this protection does not extend to the data or materials themselves and does not affect any pre-existing copyrights on such data, which was reaffirmed in Article 5 of the WCT, which clarified that databases or compilations of data enjoy the same protection as works under the Berne Convention if they constitute intellectual creations due to their content selection or arrangement; nonetheless, the constituent materials are excluded from protection, and the article emphasizes that such protection must not prejudice any copyrights applicable to the data or materials within the database. This was confirmed by the European Court in Football Dataco Ltd v Yahoo! UK Ltd (Case C 604/10), stating that the standard for copyright protection of a database depends on whether the selection and arrangement of the data within the database demonstrates the author’s intellectual creation, through freedom of choice and creative arrangement.[11] 1.2 Special provisions To address the need for regulating copyright in the digital environment, the WIPO Copyright Treaty, in addition to the newly included works, established rules tailored to the intangible nature of digitally published works,[12] primarily encompassing the right of rental, the right of communication to the public, the comprehensive solution, limitations on rights in the digital environment, and technological protection measures and rights management information. 1.2.1 Right of rental The Treaty includes a provision granting the right to rent digitally published works, as authors of literary and artistic works hold the exclusive right to authorize the public availability of the original or copies of their works; additionally, the Treaty grants authors of computer programs, cinematographic works, and works embodied in sound recordings (as defined by national laws of contracting parties) the exclusive right to authorize commercial rental of their works;[13] however, an exception applies if the computer program itself is not the essential object of the rental, or if the rental of a cinematographic work does not materially impair the exclusive reproduction right.[14] 1.2.2 Right of communication to the public Article 8 of the WCT grants authors the exclusive right to authorize the communication of their works to the public by any means, including making them available in a way that allows access at a time and place have individually chosen, which aligns with the electronic publication of digital works on the internet, enabling public access per the user’s discretion;[15] nevertheless, the article underscores that this must not conflict with relevant Berne Convention provisions.[16] 1.2.3 The comprehensive solution The 1996 WIPO Copyright Treaty adopted the “comprehensive solution” for digitally published works, granting authors the exclusive right to authorize the transmission and dissemination of their works by wire or wireless means, including digital transmissions, ensuring public access at any chosen time and place. National legislators retain the authority to define its legal nature, scope, and liability for infringement.[17] The European Court has upheld the provisions of the 1996 WIPO Copyright Treaty, in case C 306/05, SGAE v Rafael Hoteles S.A., brought by SGAE (a Spanish copyright management association) against Rafael Hoteles S.A., a hotel chain, because the hotel provided broadcasts of audiovisual works (such as films and music) via televisions in its guest rooms, on the basis that this constituted “communication to the public” and therefore required the authorization of the rights holders. The court upheld this view, as it was in line with Article 8 of the WIPO Copyright Treaty (WCT), which states that an author has “the exclusive right to authorize communication to the public of his works by any means, including making them available to individuals at a place and time of their choosing”.[18] 1.2.4 Limitations on rights in the digital environment Article 10(2) permits member states to adopt exceptions and limitations for digitally published works, provided they align with the Berne Convention’s three-step test (no conflict with normal exploitation or unreasonable prejudice to authors’ rights).[19] 1.2.5 Technological Protection Measures and Rights Management Information Negotiating parties agreed on the necessity of technological safeguards[20] complementing legal protections for digitally published works, as effective legal enforcement relies on such measures,[21] as the Treaty mandates member states to implement legal protections against the circumvention of technological measures and the removal or alteration of rights management information, deeming such acts copyright infringements.[22] This is what the European Court explicitly stated in the case of C 355/12, “Nintendo Co. Ltd and Others v PC Box Srl and 9Net Srl”, dated January 23, 2014, where it stated that technological measures protected under Article 6 must be designed to prevent or restrict unauthorized acts (reproduction, communication to the public, distribution, etc.) that require the right holder’s permission.[23] 2. The rules to be included in the Arab agreement The WIPO Copyright Treaty of 1996 stands as one of the most prominent international treaties that established new rules for the protection of authors’ rights in the digital age, making it a benchmark for amending and adapting the Arab Copyright Agreement. A meticulous review of its provisions is essential to integrate the substantive norms introduced by the 1996 WIPO Treaty, particularly concerning the conditions for granting protection, digital rights, the presumption of ownership, protected works, exceptions and limitations, and technological protection measures. 2.1. Conditions for granting protection International copyright treaties unanimously agree that any creative work meeting the formal and substantive conditions for protection deserves safeguarding,[24] including the 1981 Arab Copyright Agreement. However, its regulatory provisions fall short of encompassing newly emerging forms of creativity and their means of dissemination. 2.1.1. Originality The 1981 Arab Copyright Agreement adopted the same foundational principle as relevant international copyright treaties—the criterion of originality, as it stipulated that intellectual creations must fulfill the condition of originality to qualify for protection, expressed through the term “innovation”, where the Agreement also embraced the broad approach of the Berne Convention by employing flexible terminology[25] capable of accommodating evolving developments, including digitally published works; In contrast, the 1996 WIPO Copyright Treaty implicitly addressed digitally published works under Article 8, which discusses the author’s exclusive right to exploit their work by any means, including electronic publication.[26] The Arab Copyright Agreement relies on flexible wording to accommodate new intellectual creations, this does not exempt it from the need to adapt to emerging standards of originality for digitally published works, as adopting an expansive interpretation of originality—an example of disputes over computer programs brought before courts—is advisable; these rulings favored a broad understanding of originality,[27] shifting from the traditional notion of “intellectual effort” to “intellectual contribution”, as the former proved inadequate for new digital creations, which are characterized more by intellectual or mental contribution than sheer intellectual labor.[28] Parallel to this, legal scholars, led by Counselor M. Jorqueres, argue that applying the classical standard of originality fails to protect works originating in the digital sphere, particularly those generated by machines; consequently, they advocate abandoning the classical criterion in favor of an impersonal standard, incorporating principles akin to those in industrial property law, as M. Jorqueres contends that the intellectual effort must surpass mere selection by the creator and incorporate an element of novelty or original work. In other words, objective concepts from industrial property law should be integrated with the notion of originality.[29] In light of the above, it is advisable to reformulate Article 1 of the Arab Copyright Agreement as follows: “The authors of original intellectual creations shall enjoy full moral and artistic rights over their intellectual contributions...”. 2.1.2 The tangible embodiment of the work The formal or tangible embodiment of a work is considered a prerequisite for granting legal protection under copyright law, as it signifies the transition of the work from the realm of thought into reality, acquiring a perceptible form,[30] as copyright law aims to protect the formal aspect of works rather than their content, leaving ideas[31] outside the scope of the literary and artistic property, which applies solely to the form ideas take and how they are expressed,[32] consequently, an author’s rights pertain to the tangible medium in which creativity manifests. The Arab Copyright Agreement, in Article 1(c), stipulates that a work must have a tangible embodiment to qualify for protection; however, the agreement uses the term “material publicity”, which is likely a typographical error, with the intended term being “material support”, where an adopting the former term deviates from the objective of emphasizing the work’s tangible embodiment. Assuming the correct legal wording of Article 1(c) is “material support,” influenced by the Berne Convention (Article 2(2)), this does not exempt it from the need for an amendment to align with contemporary copyright realities, as the emergence of an idea into existence is not limited to material existence but extends to perceptible existence, as the term “material existence” unduly narrows the scope of legal protection for certain works, such as the public recitation of the Holy Quran, which some copyright laws explicitly protect, because recitation lacks a material existence consistent with the internationally established interpretation of the term “expression of a work”, which refers to the means enabling a work to be perceived, whether physically or intellectually, including performance, recitation, fixation, material formation, or any other suitable method;[33] this interpretation was adopted by the WIPO Copyright Treaty of 1996, which, in Article 2, uses the term “expressions of works” to encompass all forms of creative manifestation; similarly, the Berne Convention (Article 2(2)) references this in the context of protecting works like publicly delivered speeches and lectures. Moreover, the tangible embodiment of a digital work entails its occupation of a specific space in the digital medium, whether online (on the internet) or offline[34] (such as CDs, floppy disks, or hard drives); thus, the embodiment of a digital work poses no issue, as it remains perceivable by the public, therefore, it would be preferable to draft Article 1 of the Arab Copyright Agreement as follows: “Authors of original creations shall enjoy full moral and artistic rights over their intellectual contributions from the moment of creation, regardless of their merit, purpose, type, or mode of expression, and whether or not they are fixed on any medium that allows their communication to the public”, where the phrase “any medium that allows the work to be communicated to the public”, accommodates the electronic publication of works, whether online or offline. 2.2 Digital rights The Arab Copyright Convention recognizes the rights of authors of intellectual creations in Article 1/A, which states: “Authors of original works in literature, the arts, and sciences shall enjoy protection, regardless of the value, type, purpose, or method of expression of these works”, as despite the Convention’s reliance on broad terminology, which could potentially include any new creations, and its stipulation of a set of rights inherent to the author in Articles 4/A, 6/A, and 6/B, and its adoption of the phrase “or any other means” in Article 7, Paragraph 3, which can be relied upon to encompass any new developments in the means of creativity or its dissemination, the Convention is therefore considered to be inclusive of new developments and does not require amendment; however, to keep pace with developments in electronic creativity and publishing, it is advisable to refer to the digital rights applicable to digital works published electronically; the text of the aforementioned article should read as follows: “Authors of original creations shall enjoy full moral and artistic rights...”. The adoption of the broad term “full rights” allows for the inclusion of digital rights generated by digital creations published electronically, such as rental rights, the right to communicate the work to the public, and the comprehensive solution adopted by the 1996 WIPO Copyright Treaty in Articles 6, 7, and 8, which also recognizes the obligations imposed by electronic publishing on the publisher or electronic distributor, in addition to what is established in the context of the publishing contract. In parallel, it is necessary to point out the necessity of the Arab Copyright Convention stipulating that digital reproduction of protected works is a right granted to the author, similar to what was adopted by the 1996 WIPO Copyright Convention, as Article 4/1 states that the right of reproduction stipulated in Article 9 of the Berne Convention applies fully to the digital medium, whether it concerns the exploitation or storage of the digital work; accordingly, this can be referred to in the first paragraph of Article 7 of the Convention by stating: “The author, or his direct representative, shall have the following rights: 1. Reproduction of the work in all forms that permit public access to or perception of the work, whether by photography, cinematography, or any other electronic means”. In contrast, and in connection with discussing copyright within the Arab Copyright Convention, it is worth noting that the Convention extends protection for only 25 years after the author’s death, which is in contrast to the Berne Convention, which explicitly states in Article 7/1 that protection extends for the lifetime of the author and 50 years after his death, which is also the position taken by the 1996 WIPO Copyright Convention in Article 1/4; this requires the Arab Copyright Convention to keep pace with this by amending Article 19 and stating that the term of protection extends for the lifetime of the author and 50 years after his death. Amending Article 1/A of the Arab Convention is an urgent necessity to keep pace with the development in human creativity, which has created rights for authors over their digital works, which jurisprudence has agreed to call digital exploitation rights,[35] and which has been approved by relevant international legislation, most importantly the first Internet Convention, or the WIPO Copyright Convention of 1996, as these rights have also seeped into most national copyright legislation, and therefore, the amendment is considered to be keeping pace with electronic publishing in Article 1/A, and to restore the status of the Convention within international and regional legislation concerned with copyright, where it is also part of its efforts announced in its preamble,[36] which seeks to encourage Arab authors to innovate, create, and develop literature, science, and the arts. 2.3 Presumption of ownership of rights It is self-evident to state that the author is the creator of the work; however, the focus must be on how to establish proof of this creator’s identity, as typically, work is published under the name of a specific individual, with that name appearing on the cover and the first page of the work, indicating authorship, which constitutes a legal presumption that the person named is indeed the author, and the burden of proof falls on anyone who claims otherwise to substantiate their claim by all available means, as they are contesting a factual matter,[37] where the author may also choose to place a distinctive mark on their work, in which case they must prove—through all possible methods—that this mark is uniquely theirs and leaves no doubt as to their identity; alternatively, an author may publish under a pseudonym or anonymously.[38] The Arab Copyright Agreement aligns with the presumption that ownership rights over a work belong to the person under whose name it was published or broadcast, as Article 4(a) clarifies that the author of a work enjoys copyright protection, and authorship is presumed in favor of the person who published,[39] broadcast, or is recognized as the work’s creator, which mirrors the approach of the Berne Convention (Article 15(1)). However, digital works present challenges in attributing authorship, necessitating explicit provisions in the Agreement—even if broadly worded—to acknowledge technological methods that establish ownership rights over digital works; alternatively, civil and criminal penalties could be imposed for tampering with electronic rights management information, following the model of the 1996 WIPO Copyright Treaty, as Articles 12(1)(1) and 12(2) of the WIPO Treaty stipulate that any interference with information identifying the work, its author, the rights associated with it, or any data essential for its exploitation—including electronic codes or metadata attached to the work upon publication—constitutes an infringement of the author’s rights under both the WIPO Treaty and the Berne Convention, given that the former defers to the latter in defining protected rights.[40] Accordingly, it would be preferable to amend Article 4(a) of the Arab Copyright Agreement as follows: “The author of a work shall enjoy copyright protection, and authorship shall be presumed in favor of the person under whose name the work was published, broadcast, or recognized, or whose rights are indicated by a technological mechanism attached to the work upon publication—unless proven otherwise”. 2.4 Protected works The digital revolution has ushered in new forms of creative works and methods of dissemination, encompassing both works traditionally protected by legislation—now digitized, such as texts, images, and sounds—and works that owe their very existence to digital technology, such as digital databases, computer programs, and multimedia works, as these innovations pose practical and legal challenges, necessitating an adaptation of the Arab Copyright Convention to accommodate them, thereby fulfilling its stated objectives. The Arab Copyright Convention adopts a non-exhaustive enumeration of protected works under Article 1(b) and Article 2(1) and (2); while following the footsteps of the Berne Convention[41] by introducing its list with the phrase “Protection shall include, in particular:”—implying that the scope of protection extends beyond the explicitly mentioned works—it lacks broad terminology that could implicitly encompass digitally emerging works; consequently, its text must be amended to align with the provisions of the 1996 WIPO Copyright Treaty concerning electronically published digital works, particularly computer programs and digital databases, where it would be advisable for the Convention to adopt the inclusive language, such as adding the phrase “regardless of the mode of publication, including electronic media” to Article 1(b)(1), or introducing an additional paragraph under Article 1(b) explicitly recognizing works published on electronic media as protected under the Convention’s provisions; furthermore, the Convention should explicitly state that computer programs are protected as literary works, in line with the 1996 WIPO Treaty. Notably, while the Arab Convention acknowledges databases as protected works deriving originality from their arrangement or selection, it fails to address machine-readable or electronic databases, as to keep pace with technological advancements, these should be explicitly included in the enumeration of protected works under Article 1(b), or Article 2(a)(2) could be revised as follows: “Protection shall also extend, and authorship shall be recognized for this Convention, to the authors of encyclopedias, anthologies, or collections of independent works, data, or other materials, systematically or methodically arranged in a way that reflects intellectual creativity or demonstrates a substantive intellectual contribution, and which may be accessed or consulted individually by electronic means or any other enabling medium”; Such a formulation would ensure that the Arab Copyright Convention comprehensively covers digitally emergent works while remaining adaptable to future innovations brought forth by the digital revolution. 2.5 Exceptions and limitations The recognition of digital works and their associated rights under the Arab Copyright Convention necessitates adapting copyright exceptions and limitations to accommodate the unique nature of these rights, and while the Convention establishes restrictions on copyright in Articles 9 through 16 under the heading “Freedom of Use of Works”—laying out exceptions that align with the general principles of the Berne Convention, primarily concerning limitations and exceptions to economic rights—these provisions allow for the use of protected works without the copyright holder’s authorization or remuneration, known as “free use”;[42] in addition, they partially[43] adhere to the three-step[44] test enshrined in Article 9(2) of the Berne Convention, which requires that exceptions (1) apply only in certain special cases, (2) do not conflict with the normal exploitation of the work, and (3) do not unreasonably prejudice the author’s legitimate interests.[45] However, this does not exempt the Convention from the need for reassessment to ensure compatibility with digital works, as the three-step test should be explicitly incorporated into the framework of exceptions and limitations, following the model of the 1996 WIPO Copyright Treaty as articulated in Article 10; consequently, Article 9 of the Arab Copyright Convention should be revised as follows: “The use of protected works in certain special cases without the author’s authorization shall not constitute copyright infringement, provided such use does not conflict with the normal exploitation of the work by the author and does not unreasonably prejudice the author’s legitimate interests, as the following uses shall be deemed lawful and shall not require authorization from the rights holder: ... (remainder of the article unchanged)”. Moreover, the Convention must move beyond the traditional exceptions and limitations derived from the Berne Convention and adopt provisions suited to the digital environment, such as those governing digital publishing, private digital copies, and exceptions compatible with modern educational and academic technologies, including digital libraries. It would also be advisable for the Arab Copyright Convention to incorporate, alongside digital-specific limitations, exceptions catering to persons with disabilities—particularly recognizing accessible formats as a permissible exception for the visually impaired and individuals with physical disabilities that prevent them from handling or using printed books with ease, where this adjustment would ensure that the Convention remains responsive to both technological advancements and the needs of vulnerable groups.[46] 2.6 Technical protection measures The technical protection measures endorsed by the 1996 WIPO Copyright Treaty aim to safeguard the rights associated with digitally published works; these measures generally encompass any digital-based technical mechanism designed to prevent any infringement of the rights granted to authors over their works, as they are primarily divided into two categories: the first facilitates the identification and designation of works by specifying rights holders,[47] while the second seeks to prevent any act that may violate authors’ rights.[48] The Arab Copyright Agreement does not include any reference to technological protection measures, necessitating a revision of its provisions to explicitly adopt these measures and recognize them as tools or mechanisms available to authors or rights holders, as such measures would reinforce the legislative protection granted to electronically published works, in line with the 1996 WIPO Treaty; accordingly, it would be advisable to amend Article 4 under the second section, titled “Authors’ Rights,” to read as follows: “The author of a work shall enjoy authorship rights, and authorship shall be attributed to whoever publishes, broadcasts, or identifies the work under their name, or makes it available to the public in a manner that allows their recognition as the rights holder—including technical systems for work identification that aim to specify rights-related information”. By incorporating this provision, the Arab Copyright Agreement would align with advancements in the field of creativity and its dissemination, while further strengthening authors’ rights in the digital environment, which would establish a presumption of ownership over digital works and ensure their attribution to their creators. To reinforce the aforementioned, the Arab Agreement—should it adopt technical systems for identifying works in the digital environment as a protective mechanism—must extend copyright protection to these systems and explicitly stipulate that any infringement upon them constitutes an infringement of the copyright in the work itself. Concurrently, the Agreement should include an explicit provision enabling authors and rights holders to employ technological measures that prevent any unauthorized acts not permitted by the rights holders or prohibited by law, in line with Article 11 of the WIPO Copyright Treaty of 1996;[49] accordingly, Article 7 of the Arab Agreement would be amended as follows: “Authors or rights holders shall have the right to exercise the following rights and prevent any infringement thereof by any means, including the adoption of any effective technological measure linked to the work, which restricts acts they have not authorized or that are prohibited by law...”. To strengthen the role of protective technological measures, the Arab Agreement should explicitly extend copyright protection to these measures, provided they meet the three conditions established by the WIPO Copyright Treaty of 1996 under Article 11, which could be incorporated into Article 25 under the sixth section titled “Means of Copyright Protection,” with the addition of a second paragraph stating: “Member states shall enact laws extending copyright protection to any technological measure that is linked to the work, effective, and implemented by the author or rights holders to exercise their rights or prevent any infringement thereof”. Conclusion In light of escalating digital challenges and the flourishing creative economy, it has become imperative to amend the 1981 Arab Copyright Convention to incorporate the substantive provisions enshrined in the 1996 WIPO Treaty, as this legislative update does not merely represent compliance with international standards but also constitutes essential protection for Arab creators, enhances the competitiveness of Arab culture in the global digital sphere, stimulates investments in creative and digital industries, holds sway over the efficiency and innovation of the creative industries,[50] and facilitates harmonization with relevant international agreements. Accordingly, the study proposes the following Suggestions: Amending Article 1 of the Arab Copyright Convention as follows: “Authors of original creations shall enjoy full moral and material rights over their intellectual contributions from the moment of creation, regardless of their merit, purpose, form, or mode of expression, and whether or not they are fixed on a medium that allows their communication to the public”; Amending the first paragraph of Article 7 of the Convention as follows: “The author or their representative shall have the following exclusive rights: (1) the right to reproduce the work in all forms that enable public access or perception, whether through photographic, cinematographic, or any electronic means that facilitate such reproduction”; Amending Article 19 to stipulate that the term of protection shall extend throughout the author’s lifetime and for 50 years after their death; Revising the text of Article 4(a) of the aforementioned Arab Convention as follows: “The author of a work shall enjoy copyright, and authorship shall be attributed to the person under whose name the work was published, broadcast, or recognized, or whose name is associated with the work upon its publication through a technological mechanism that identifies their rights, unless proven otherwise...”; The Convention should adopt broad terminology encompassing digital works, such as adding the phrase “regardless of the mode of publication, including publication on electronic media” in Article 1(b)(1), or introducing an additional paragraph under Article 1(b) explicitly recognizing works published on electronic media as protected under the Convention’s provisions, also the Convention must expressly protect computer programs as literary works, in alignment with the 1996 WIPO Treaty; Reformulating Article 9 of the Arab Convention as follows: “The use of protected works in specific, limited circumstances without the author’s authorization shall not constitute an infringement, provided such use does not conflict with the normal exploitation of the work by its author and does not unreasonably prejudice their legitimate interests, where the following uses shall be deemed permissible and shall not require authorization from the rights holder: ... (the remainder of the article remains unchanged)”; The Arab Copyright Convention should incorporate, alongside digital limitations, specific exceptions for persons with disabilities, recognizing accessible formats as an exception tailored to the visually impaired and individuals with physical disabilities that hinder their ability to hold or use a book with ease; Amending Article 4 under the second axis concerning authors’ rights to read as follows: “The author of a work shall enjoy copyright, and authorship shall be attributed to the person under whose name the work was published, broadcast, or recognized, or whose name is associated with the work through any means that identifies them as the rights holder, including technical systems for work identification designed to specify rights-related information”; The Convention must include an explicit provision permitting authors and rights holders to employ technological measures that prevent unauthorized acts not permitted by law, identify rights holders, and extend copyright protection to such measures. References Scientific literature: Abdullah, A. A. (2009). The Legal Protection of intellectual Property Rights on the internet. Egypt: New University House; Al-Sanhouri, A. R. (2005). Al-Wasit fi Sharh Al-Qanun Al-Madani (Property Rights with a Detailed Explanation of Things and Property). Legal Publications. Lebanon; Bouzidi, A. T. (2023). Accessible formats as an exception to copyright in Algerian legislation. The Academic journal of legal and political research, 7(1); Burchardt, D. (2023). Does Digitalization Change International Law Structurally? German Law Journal, Special Issue: International Law and Digitalization, 24(3); Elbadraoui, H. (2007). The International Legal Framework for the Protection of Copyright and Related Rights. Available at: <www.wipo/lip/dipl/met/05/3>. Elganbihi, M. (2005). International Cooperation in the Protection of Intellectual Property Rights. Alexandria. Dar Al fikr Al jam’I; Elsaghir, H. E. (2005). Emerging Global Issues in Intellectual Property. p. 3. Available at: <www.wipo-las/jiuru/cai/5/2>; Gami, H. (2004). International protection of copyright and related rights, WIPO national symposium on intellectual property for organizations, Manama; Hawi, F. H. (2014). Web Sites and Intellectual Property Rights. Jordan: Dar Al Thaqafa; Hugenholtz, B. (2009). Conceiving a document on Limitations and Exceptions to Copyright Laws. The Bibliotheca Alexanderia. Alexanderia.; Issa, M. A. (2020). The Protection of Intellectual Property Rights for Digital Works under International Law. King Abdulaziz University Journal, Arts and Humanities, 30 (7); Kanaan, N. (2009). Copyright, Contemporary Models of Author’s Rights. Dar Al Thaqufa, Jordan; Lewinski, S. V. (2006). The role and future of the Universal Copyright Convention. E-Copyright Bulletin; Lucas, A. (1998). Droit d’auteur et Numerique. Litec. Paris; Maskus, K. (2024). Intellectual Property Rights And Knowledge Diffusion In The Global Economy, Review of Economic Research on Copyright Issues, vol. 21; Muthoo, A. (2023). Some Remarks On Bargaining Power, Innovation, and 21st Century Copyright Law. Review of Economic Research on Copyright Issues, vol. 20; Passa, J. (2001). Internet et Droit d’auteur. Juris-Classeur. LexisNexis. France; Samuelson, P. (2013). Is Copyright Reform Possible? A critical evaluation of two major contributions to the copyright reform literature. Harv. L. Rev, (126)3; Sheinblatt, J. S. (1998). The WIPO Copyright Treaty. Berkeley Technology Law Journal, (13) 535; Talabah, A. (2006). The protection of intellectual property rights. Modern university office. Alexanderia; Talhouni, B. A. (2004). The internet and digital rights management. Muscat; Wansa, D. I. (2002). The protection of copyright on the internet, a comparative study. Sader, Lebanon. Legal acts: Arab Convention for the Protection of Copyright. (1981); (1998). Berne Convention for the Protection of Literary and Artistic Works, Paris Act dated July 24, 1971, amended on September 28, 1979. Geneva: WIPO Publication; (2003). WIPO Copyright Treaty. Geneva: WIPO Publications; (2017). Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) Case law: Bsa v Ministert vo Kultury. (2010). Crc (Third Chamber), c393/9. Available at: <https://op.europa.eu/en/publication-detail/-/publication/3851211e-aaaf-47a0-96e0-b5e5fccb41bf#>; Football Dataco Ltd and Others v Yahoo UK Ltd and Others. (2012). CJEU, C-604/10. Available at: <https://curia.europa.eu/juris/document/document.jsf?cid=1199&dir=&docid=147582&doclang=en&mode=req&occ=first&pageIndex=0&part=1&text=&utm>; SGAE v Rafael Hoteles S.A. (2006). CJEU, C‑306/05. Available at: <https://curia.europa.eu/juris/document/document.jsf?docid=64884&doclang=EN>; Nintendo Co. Ltd and Others v PC Box Srl and 9Net Srl. (2014). CJEU, C-355/12, Available at: <https://app.livv.eu/decisions/LawLex201400000076JBJ>. Footnotes [1] Arab Convention for the Protection of Copyright. (1981). Preamble. [2] Sheinblatt, J. S. (1998). The WIPO Copyright Treaty. Berkeley Technology Law Journal, (13) 535, p 550. [3] See: Hawi, F. H. (2014). Web Sites and Intellectual Property Rights. Jordan: Dar Al Thaqafa, p. 118. Elbadraoui, H. (2007). The International Legal Framework for the Protection of Copyright and Related Rights, p. 9. Available at: <www.wipo/lip/dipl/met/05/3>. [4] Gami, H. (2004). International protection of copyright and related rights, WIPO national symposum on intellectual property for organization. The International Protection of Copyright and Related Rights: From the Berne Convention and the TRIPS Agreement to the WIPO Copyright Treaty-WIPO Performances and Phonograms Treaty, WIPO National Seminar on Intellectual Property for Government Officials, World Intellectual Property Organization, Manama, p. 20. [5] Article 2: Protected Works: 1. Literary and Artistic Works; 2. Possibility of Claiming Identification; 3. Derivative Works; 4. Official Texts; 5. Collections; 6. Protection obligation, beneficiaries of protection; 7. Works of applied arts, drawings and industrial models; 8. Daily news. Article 3: Protection criteria: 1. Nationality of the author; Place of publication of the work; 2. Author’s residence; 3. Published works; 4. Simultaneously published works. Article 4: Protection criteria for cinematographic works, architectural works, and certain works of graphic and plastic arts. Article 5: Rights guaranteed: 1. and 2. Outside the country of origin; 3. In the country of origin; 4. In the country of origin. Article 6: Possibility of restricting protection for certain works of nationals of certain countries outside the Union: 1. In the country of first publication and in other countries; 2. Non-retroactivity of restrictions; 3. Notification. [6] Article 10/1 of the TRIPS Agreement states: “1. Computer programs, whether in source or machine language, shall be protected as literary works under the Berne Convention of 1971”. [7] Bsa v Ministert vo Kultury. (2010). Crc (Third Chamber), c393/9. Available at: <https://op.europa.eu/en/publication-detail/-/publication/3851211e-aaaf-47a0-96e0-b5e5fccb41bf#>. [8] Issa, M. A. (2020). The Protection of Intellectual Propety Rights for Digital Works under International Law. King Abdulaziz University Journal, Arts and Humanities, 30 (7), p. 73. [9] Ibid., p. 74. [10] Article 10/2 of the TRIPS Agreement states: “2. Compilations of data or other material, whether in machine-readable or other form, which constitute an intellectual creation as a result of the selection or arrangement of their contents shall be protected. This protection does not extend to the data or material as such and is without prejudice to the copyright in respect of such data or material”. [11] Football Dataco Ltd and Others v Yahoo UK Ltd and Others. (2012). CJEU, C-604/10. Available at: <https://curia.europa.eu/juris/document/document.jsf?cid=1199&dir=&docid=147582&doclang=en&mode=req&occ=first&pageIndex=0&part=1&text=&utm>. [12] It is worth noting that some jurists consider the first Internet Treaty to be of no importance. In fact, they consider it a modest agreement, and this will not change in the future, given that it cannot replace the Berne Convention, the Copyright Convention, or replace the TRIPS Agreement. Furthermore, they believe that it does not serve the interests of some countries that desire to be subject to lower-level obligations in the field of international copyright, in addition to the desire of countries to join the World Trade Organization. See in this regard: Lewinski, S. V. (2006). The role and future of the Universal Copyright convention. E-Copyright Bulletin, p. 18. Abdullah, A. A. (2009). The Legal Protection of intellectual Property Right on the internet. Egypt: New University House, p. 260. [13] Hawi, F. H., ibid., p. 124. [14] Article 7 of the Convention states: “Right of rental. 1. Authors of the following works: a. Computer programs, b. Cinematographic works, c. Works embodied in sound recordings, as defined in the national law of the Contracting Parties, shall enjoy the exclusive right of authorizing the public rental of the original or copies of their works for commercial purposes. 2. Paragraph (1) shall not apply in the following two cases: “a. If the subject matter is a computer program and the program itself is not the principal subject of the rental. b. If the subject matter is a cinematographic work, unless such rental has resulted in widespread copies of that work that materially prejudice the exclusive right of reproduction...”. [15] Elsaghir, H. E. (2005). Emerging Global Issues in Intellectual Property. p. 3. Available at: <www.wipo-las/jiuru/cai/5/2>. [16] Article 8, last paragraph, states: “...without prejudice to the provisions of Articles 11(1), 11(2), 11(1), 1(2), 11(1), 1(2), 14(1), 1(2), and 14(1), 1(1) of the Berne Convention”. [17] Hawi, F. H., ibid. p. 124. [18] SGAE v Rafael Hoteles S.A. (2006). CJEU, C‑306/05. Available at: <https://curia.europa.eu/juris/document/document.jsf?docid=64884&doclang=EN>. [19] Article 10/2 of the Convention states: “2. In applying the Berne Convention, the Contracting Parties shall limit any limitations or exceptions to the rights provided for in that Convention to certain special cases that do not conflict with the normal exploitation of the work, and do not cause unreasonable harm to the legitimate interests of the author”; see: Elganbihi, M. (2005). International Coperation in the Protection of Intellectual Property Rights. Alexandria. Dar Al fikr Al jam’i, p. 128. [20] Although digitization poses a clear challenge to copyright principles, it can also reinforcing existing rights or establishing others. Burchardt, D. (2023). Does Digitalization Change International Law Structurally? German Law Journal, Special Issue: International Law and Digitalization, 24(3), p. 441. [21] Hawi, F. H., ibid. p. 126. [22] Articles 11 and 12 of the First Internet Convention. Talhouni, B. A. (2004). The internet and digital rights management. Muscat. p. 8. [23] Nintendo Co. Ltd and Others v PC Box Srl and 9Net Srl. (2014). CJEU, C-355/12, Available at: <https://app.livv.eu/decisions/LawLex201400000076JBJ>. [24] It is worth noting that some jurisprudence calls for the re-Reinstatement of formalities, given that technological developments enable the adoption of a “register once, register everywhere” regime. The argument is that different national implementations of official procedures result in incompatible records, which increases the costs of searching for information rather than reducing them. This necessitates a review of the international agreement on this subject. Samuelson, P. (2013). Is Copyright Reform Possible? A critical evaluation of two major contributions to the copyright reform literature. Harv. L. Rev, (126)3, p. 748. [25] Issa, M. A., ibid. p. 67. [26] Ibid. p. 68. [27] The French Court of Cassation’s decision of March 7, 1986, in the Pachot/Babolat case, was considered a development in the concept of originality in the field of computer software protection. It defined what could be protected in a software program and provided a definition of originality by stating: “The author has demonstrated the existence of a special intellectual effort that goes beyond simple, automatic, and binding implementation, and that the embodiment of this effort exists within an independent variable”. See: Lucas, A. (1998). Droit d’auteur et Numerique. Litec. Paris. pp. 32-35. [28] Wansa, D. I. (2002). The protection of copyright on the internet, a comparative study. Sader, Lebanon, p. 28. [29] The European Union has adopted this principle in determining the authenticity of computer software in Article 1 of the Directive on the Protection of Computer Software. [30] Lucas, A. Ibid., p. 24. [31] Maskus, K. (2024). Intellectual Property Rights And Knowledge Diffusion In The Global Economy, Review of Economic Research on Copyright Issues, vol. 21. p. 10. [32] Wansa, D. I., Ibid., p. 23. [33] Kanaan, N. (2009). Copyright, Contemporary Models of Author’s Rights. Dar Al Thaqufa, Jordan, p. 206. [34] Issa, M. A. Ibid., p. 71. [35] Passa, J. (2001). Internet et Droit d’auteur. Juris-Classeur. LexisNexis. France, p. 29. [36] See the preamble to the 1981 Arab Convention for the Protection of Copyright, p. 1. [37] Talabah, A. (2006). The protection of intellectuat property rights. Modern university office. Alexanderia. p. 6. [38] Al-Sanhouri, A. R. (2005). Al-Wasit fi Sharh Al-Qanun Al-Madani (Property Rights with a Detailed Explanation of Things and Property Legal Publications). Lebanon, p. 326. [39] The presumption of ownership of rights in digital works submitted electronically raises several issues. The first issue that must be taken into account is the multiplicity of authors, which makes determining the paternity of each author extremely difficult, especially if the work is created and published directly online. In addition, there is a diversity of contributions, as the adoption of digital technologies leads to the emergence of complex works that include computer programs, a phenomenon evident in database works and multimedia works. [40] WIPO Convention regarding its relationship with the Berne Convention. Article 1, para. s4. [41] Ibid., Article 2, para. 1. [42] The free use cases in the Berne Convention include reproduction in certain special cases (Article 9/2); quotation and use of works—by way of illustration—for educational purposes (Article 10); reproduction of newspapers or similar materials and use of works for the purpose of reporting current events (Article 10B); and temporary recordings for broadcasting purposes (Article 11 B.3). [43] Arab Copyright Convention. Article 12. [44] Hugenholtz, B. (2009). Conceiving a document on Limitations and Exceptions to Copyright Laws. The Bibliotheca Alexanderia. Alexanderia. p. 31. [45] Berne Convention. Article 9/2: “The legislation of the countries of the Union shall be a matter for the right to authorize the making of copies of these works in certain special cases, provided that such making does not conflict with a normal exploitation of the work and does not unreasonably prejudice the legitimate interests of the author”. [46] Bouzidi, A. T. (2023). Accessible formats as an exception to copyright in Algerian legislation. The Academic journal of legal and political research, 7(1), pp. 496-476. [47] WIPO Copyright Treaty. Article 12/2. [48] Ibid., Article 11. [49] Article 11 states: “The Contracting Parties shall provide in their laws for appropriate protection and effective remedies against the circumvention of effective technological measures used by authors in the exercise of their rights under this Treaty or the Berne Convention, which prevent the performance of acts concerning their works not authorized by the authors concerned or permitted by law”. [50] Muthoo, A. (2023). Some Remarks On Bargaining Power, Innovation, and 21st Century Copyright Law. Review of Economic Research on Copyright Issues, vol. 20, p 7.
strengthening the Arab legal environment
The Impact of Intelligent Systems on the Future of Criminal Justice: Between the Right to Privacy and the Imperative of Modernization
Constitutional principles have enshrined individual rights in accordance with the guarantees imposed by the rules of a fair trial. However, modern judicial systems are increasingly incorporating technologies driven by artificial intelligence (AI), which has sparked considerable debate. Some argue that the absolute implementation of such technologies poses a serious threat to fundamental constitutional rights—particularly the right to privacy and the guarantees of due process. Others view their adoption as a transformative development in the justice sector. Among the key outcomes of AI integration into the justice system is the emergence of electronic litigation technologies, notably remote or virtual trials. While these mechanisms have significantly expedited judicial proceedings—especially by resolving disputes more quickly and reducing trial delays—they have also faced criticism. Objections have been raised at both national and international levels due to the potential challenges these mechanisms may present, especially in terms of their impact on fundamental procedural guarantees, such as the principle of adversarial proceedings and the right to a defense. Accordingly, this study aims to clarify the implications of AI systems on the right to digital privacy, particularly in the pre-trial phase, including criminal investigations. It also explores their effects on constitutional rights during electronic trial proceedings. Ultimately, the study seeks to assess the extent to which these systems succeed in upholding the principle of a fair trial. Keywords: Intelligent systems, digital privacy, modernization of justice, future of justice. Introduction Constitutional principles have been emphasized at both the international and national levels, historically and in modern times, on the rights of individuals to seek redress through judicial processes safeguarded by the rules of efficient and fair justice. However, modern judicial systems are now witnessing the introduction of technologies driven by artificial intelligence, which has sparked controversy between opponents and proponents. Critics argue that the unrestricted application of such technologies constitutes a violation of fundamental constitutional rights of individuals, whether during the pre-trial phase, particularly the right to privacy, or during the trial itself, especially when proceedings are conducted remotely via video, raising concerns about the extent to which fair trial guarantees are upheld. Conversely, supporters see the adoption of these technologies as a qualitative leap forward for the justice sector, elevating its systems to align with the most advanced judicial frameworks worldwide in delivering justice. Moreover, the inevitability of artificial intelligence has cast its influence across all sectors amid the rise of what is now known as digital administration or e-governance. Among its manifestations within the justice sector is the mechanism of electronic litigation. The mechanism of electronic litigation, which constitutes one of the newly introduced instruments at the international level, has also been adopted by many countries, including Algeria, in recent years following the enactment of Law No. 15-03 dated February 1, 2015, concerning the modernization of the judiciary. This law institutionalized the use of electronic means as a method for conducting remote litigation procedures. This mechanism has significantly accelerated litigation processes, particularly in expediting dispute resolution. However, certain jurists and courts have expressed opposition to this mechanism, arguing that it may encounter significant challenges, particularly in guaranteeing essential procedural safeguards and in upholding the core principles of due process, notably the principle of in-person hearings and respect for the right of defense. The significance of this topic lies in examining the legal dimension regarding the necessity of implementing artificial intelligence technologies in the judicial field in a manner that does not infringe upon individuals’ constitutional rights, primarily the right to privacy and fundamental procedural safeguards in litigation. Moreover, this study aims to clarify the impact of AI systems on the right to digital privacy, particularly during the pre-trial phase, namely the investigation stage, as well as on constitutional rights throughout electronic trial proceedings. Accordingly, the question arises: To what extent have AI systems succeeded in balancing an individual’s right to privacy and procedural guarantees on one hand, and the demands imposed by the modernization of justice on the other? In response, we adopted two main methodologies: the descriptive approach, considering AI systems as a phenomenon requiring a detailed description of their key characteristics and legal framework to identify their advantages and disadvantages; and the analytical approach, which involves scrutinizing the relevant legislative texts regulating the application mechanisms of AI tools, aiming to assess their effectiveness in the judicial domain and their compliance with the protection of individual privacy. To achieve the objectives of this study, the research paper is divided into two main sections: The impact of intelligent systems on the right to privacy; The impact of intelligent systems on the constitutional principles protecting litigants (In the French and Algerian experiences). 1. The Impact of Intelligent Systems on the Right to Privacy Despite the positive outcomes that can arise from the digitalization of administration in general, most notably the enhancement of public services and the acceleration of fulfilling individuals’ needs, this process simultaneously generates a range of challenges. Among these is the issue commonly referred to as the right to privacy, which has evolved into what is now known as digital privacy. Therefore, this section will first address the general concept of privacy before discussing the legal safeguards designed to protect the right to digital privacy. 1.1 The concept of the right to privacy Privacy, in general, refers to an individual’s right to protect their personal information and to secure their life and private affairs from any form of intrusion, violation, or exploitation by others. Disclosing aspects of private life without consent is generally regarded as a violation of the right to privacy.[1] One manifestation of this right is the protection of an individual’s personal life from violations such as intrusion into the sanctity of their home. While traditionally this concept was limited to safeguarding an individual’s private life from interference, its scope has expanded alongside advancements in information and communication technologies, particularly with the emergence of artificial intelligence technologies. Today, individuals’ lives and all related information and data are integrally embedded within complex information systems and digitized platforms, as opposed to being confined to physical, paper-based records. Consequently, the right to privacy has evolved into what is now known as digital privacy, which primarily concerns the protection of data generated or transmitted by users during web browsing via mobile devices or desktops.[2] Digital privacy can be defined as the ability of an individual to control the collection, processing, storage, and dissemination of personal information in cyberspace, and to be protected against unlawful access, surveillance, or misuse of such data.[3] Modern legal scholarship highlights that digital privacy goes beyond safeguarding against intrusion; it reflects broader principles of transparency, accountability, and fairness in data processing.[4] In addition, comparative legal research demonstrates a progressive recognition of digital privacy as an autonomous right, one that imposes positive obligations on states and institutions to establish effective technical and regulatory safeguards.[5] 1.2 Legal safeguards for the protection of digital privacy Below, we examine aspects of the legislative frameworks established by the Algerian legislator to safeguard digital privacy, followed by an analysis of the impact of investigation and inquiry into crimes on the right to digital privacy. 1.2.1 Selected legislative frameworks for protecting digital privacy Successive constitutions have enshrined the protection of the right to privacy, the most recent being the 2020[6] constitutional amendment. Article 47 states: “The protection of natural persons in the processing of personal data is a fundamental right”. This right has also been reinforced through various specific laws. For instance, Article 59 of the Postal and Telecommunications Law mandates that:[7] “Operators holding licenses, as well as their users, under the penalties outlined in Article 127 of this law, must respect the confidentiality of correspondence transmitted via wired and wireless communications, and uphold the conditions for protecting private life and the personal information of subscribers”. Additionally, Article 15 of Law No. 06-01 concerning the prevention and combating of corruption specifies,[8] in the context of preventive measures against corruption: “Enabling the media and the public to access information related to corruption, while respecting privacy, personal honor and dignity, as well as the provisions related to national security, public order, and judicial neutrality”. 1.2.2 The impact of investigation and inquiry into crimes on the right to digital privacy One of the key legal protections of the right to privacy acknowledged by the legislator involves the limitations imposed even when certain crimes specified below occur. These limitations consist of two substantive conditions: first, the necessity of investigation in flagrante delicto crimes; second, the requirement of a preliminary investigation for crimes of a serious criminal nature. In addition to these substantive conditions, there is a procedural requirement, which is judicial authorization. A. The necessity of conducting investigations into caught-in-the-act offenses and preliminary inquiries into high-risk crimes Article 65 bis 5 of the Criminal Procedure Code addresses certain crimes that require immediate investigative and investigative actions due to their high criminal risk.[9] Examples include drug-related offenses, terrorism, transnational organized crime, offenses affecting automated data processing systems, and money laundering and currency crimes. When the necessity outlined in the article is established, authorization may be granted to initiate investigative procedures, which include intercepting correspondence, recording audio and video communications, and entering residential premises without requiring the consent or approval of the individuals involved. B. Judicial authorization The mere necessity to initiate electronic surveillance, investigation, and monitoring procedures, even in cases involving offenses listed under Article 65 bis 5, is insufficient. It is imperative to obtain judicial authorization from the Public Prosecutor. Furthermore, when a judicial investigation is opened concerning these procedures, authorization must be secured from the investigating judge. These powers granted to the latter were established through the amendment to the Code of Criminal Procedure under Law No. 06-22.[10] 2. The Impact of Intelligent Systems on Constitutional Principles in Litigation Intelligent systems have not only affected individuals’ lives by digitizing their data and privacy but have also extended to their judicial rights, placing these rights at the center of a dispute between opponents and proponents, for reasons we will outline. With Reference to the French Experience in Comparison to the Algerian Experience: 2.1 The nature of remote electronic litigation Some define the electronic judicial system as: “The authority of a specialized judicial court to electronically adjudicate disputes presented before it via the Internet or a private external communication network (Extranet), using technical electronic mechanisms aimed at expediting dispute resolution and facilitating access for the parties involved”[11]. Accordingly, litigation procedures occur simultaneously despite the physical distance between the parties[12], allowing for the hearing of testimonies, the exchange of pleadings between the parties or their representatives, and the examination of witnesses or interrogation of the defendants.[13] From this definition, it is clear that electronic litigation procedures are conducted through the transmission and receipt of documents and evidence via electronic platforms, eliminating the need for the parties to physically appear repeatedly at the courthouse, as traditionally required in conventional judicial systems. Opponents are also interrogated, their statements are heard, memoranda are exchanged between them or their representatives, and witness statements are heard, all via electronic means.[14] After that, the judge then only needs to ask a few straightforward questions before issuing a ruling promptly, without the need to postpone due to case backlog. This contributes to saving time, reducing effort, and minimizing expenses, thereby alleviating the issue of overcrowding in courts and striving to improve the quality of services provided to litigants.[15] 2.2 The legislative foundations of electronic litigation in Algeria Electronic litigation, or remote video conferencing, which the Algerian legislator refers to using the French term “Vidéo-conférence” in the context of investigations and witness hearings, derives its terminology from the United Nations Convention against Transnational Organized Crime, ratified by Presidential Decree No. 02-55 issued in 2002.[16] However, its practical application only began to emerge in 2007, specifically with the inauguration of the 2007-2008 judicial year, when the electronic litigation bill was introduced for parliamentary discussion. The bill received implicit approval from parliament members, but further debate was postponed until 2014, during the nineteenth public session held on Monday, November 24, 2014. These developments ultimately culminated in the enactment of Law No. 15-03 concerning the modernization of justice.[17] Although this law represents a modest and somewhat delayed step, considering the timeline from the ratification of the United Nations Convention against Transnational Organized Crime,[18] it can nonetheless be regarded as a positive advancement towards embracing technology, specifically what has come to be known as the electronic administration system. Article 1 of this law articulates three fundamental objectives it aims to achieve: Establishing a centralized information system for the Ministry of Justice; Transmitting judicial documents and records electronically; Utilizing remote video conferencing technology in judicial proceedings. 2.2.1 Applications of electronic litigation in Algeria Since the enactment of the Justice Modernization Law, the majority of courts across the country have seen significant uptake in utilizing its provisions, with 153 remote video trials recorded within the first year of implementation. The inaugural session took place on October 7, 2015, at the Court of El Kalaa in the misdemeanor division. Officials involved in this initiative emphasized that this technology aims to alleviate courtroom overcrowding, reduce the burden of travel for defendants, security personnel, prison administrations, and witnesses, while also accelerating the pace of case processing.[19] Regarding remote international trials, it was the first of these pleadings on July 11, 2016, between the Court of Msila in Algeria and the Court of Nanterre in France. Many legal scholars and attorneys who participated in these remote hearings praised the process for its numerous advantages, including the provision of simultaneous interpretation from Arabic to French, and for projecting a positive image internationally regarding the integrity of the Algerian judiciary, highlighting respect for the right of defense and adherence to fundamental trial principles. Furthermore, this form of trial eliminates the need for physical presence in court, especially for individuals unable to travel due to health conditions. Overall, the use of remote video trial technology offers significant savings in effort, cost, and time.[20] 2.2.2 The position of legal doctrine and judicial practice on the digitalization of justice An examination of the implementation of justice digitalization laws and their impact on various international judicial systems, as well as the reactions they have provoked, reveals the existence of two opposing trends. The first trend expresses satisfaction, relying on the advantages demonstrated through judicial practices conducted via electronic platforms. The second trend, however, is not entirely opposed to these technologies but raises reservations concerning certain aspects, particularly those touching upon the fundamental principles of due process.[21] In order to assess the legal value and broader implications of these laws, it is necessary to analyze the arguments and justifications advanced by both positions, with the aim of reaching practical outcomes that may contribute to the harmonization of diverse legal and judicial systems at the international level. A. Perspectives of the supportive approach to judicial digitalization This perspective is grounded in the principle of synchronizing technological advancement with the evolution of crime. Since offenders have developed sophisticated technical methods relying on electronic means to commit crimes, it is only logical to respond by updating laws and electronic tools to counter this phenomenon effectively.[22] The rapid completion and execution of litigation procedures through the electronic exchange of pleadings and documents, unlike traditional correspondence and postal communications,[23] which often result in case adjournments, thus fulfilling the principle of procedural economy. Empirical evidence suggests that the adoption of electronic litigation and digital case management systems has led to a tangible reduction in court backlogs and a decrease in the frequency of adjournments. For instance, in England and Wales, the shift from paper-based to digital processes in criminal and family courts has resulted in improved accuracy—error rates dropping below 1%—expedited case progression, and fewer delays caused by clerical inefficiencies.[24] Facilitating the categorization of cases which streamlines their processing and automated storage while reducing the physical storage space required in courts. This also helps prevent the loss or haphazard filing of case files. Preserving electronic documents of all kinds from the initial complaint, records, session minutes, to all case-related papers, thereby ensuring the protection of rights. Alleviating the pressure and workload on judges and sparing them from confrontations with litigants, particularly in cases where judges personally oversee proceedings without legal representation. Allowing electronic access to case files and enabling review of all procedures taken without the necessity of physically attending court.[25] B. The viewpoints of those opposing electronic litigation, on the grounds that it conflicts with constitutional principles At the international level, the attitude towards remote litigation between countries appears to oscillate between relative rejection and conditional acceptance. There is no dispute that digitization and artificial intelligence have contributed to the development of the judicial system. However, studies have shown that the lack of technology in some judicial systems in some countries has negatively impacted the effectiveness of digital justice, while other systems have adapted well.[26] We will limit our analysis to the French model in comparison with the Algerian experience, in consideration of the scope of this research paper: One of the most notable recent decisions of the French Constitutional Council[27] provided that: “While technological progress necessitates the digitization of courts and trials, this must not come at the expense of the right to physical presence and the right to respond during the various stages of the trial. While this may not affect the judicial panel, it is fundamentally different for the accused and their defense”. This ruling followed the legislative measures adopted by the French Parliament in response to the COVID-19 pandemic, which resulted in a considerable expansion of remote trial hearings through video conferencing technologies. The practice provoked substantial debate, particularly after the French Constitutional Council, on 16 October 2020, was seized of a decision delivered by the Criminal Division of the Court of Cassation.[28] The ruling of the French Council of State (Conseil d’État), Judgment No. 2351 of 13 October 2020, concerned a constitutional matter regarding the protection of rights and freedoms guaranteed by Article 5 of Ordinance No. 2020-303, which amended the Code of Criminal Procedure in response to the COVID-19 pandemic on the basis of Law No. 2020-290 adopted to address the spread of COVID-19.[29] Article 5 of the aforementioned Ordinance No. 2020-303 provides that: “By way of derogation from Article 706-71 of the Code of Criminal Procedure, audiovisual communication may be used before all criminal courts, with the exception of the Cour d’assises, without the need to obtain the consent of the parties... while respecting the rights of the defense and ensuring the adversarial principle in the proceedings”. In this regard, the French Constitutional Council issued two consecutive decisions. The first was rendered on January 15, 2021 (Decision No. 2020-872 QPC), in which the Council ruled against the legitimacy of using audiovisual communication technology in criminal proceedings without the consent of both parties, as provided for in Article 5, even in the context of the health emergency. The Council held that the substance of this measure “undermines the rights of the defense”, particularly the right of the accused to be physically present before the judge.[30] In its second decision, issued on 4 June 2021 (2021-911/919 QPC), the French Constitutional Council reaffirmed the same position, emphasizing that the use of videoconferencing in criminal proceedings without the defendant’s consent undermines the right to physical confrontation, particularly during pre-trial detention. The Council therefore rejected the request to remove the requirement of the defendant’s consent for trial by video in detention cases, considering that such a measure could deprive the defendant of appearing before a judge. This, according to the Council, constitutes an infringement of defense rights that cannot be justified by the health emergency context, despite acknowledging the importance of protecting public health and ensuring the continuity of justice.[31] Indeed, the Constitutional Council declared the first paragraph of Article 5 of the aforementioned Ordinance No. 2020-303 unconstitutional.[32] An analysis of these two decisions reveals that the Constitutional Council does not reject digitization per se, but rather requires clear safeguards and conditions to ensure respect for the rights of the defense and the legitimacy of proceedings. It reflects a delicate constitutional balance between the protection of litigants’ fundamental rights and the flexibility of the judicial system in times of crises such as the COVID-19 pandemic. On the one hand, it allows the use of video trial technologies, but only within a narrow and temporary scope, linked to the circumstance of the ‘health emergency’, rather than as a permanent generalization, while observing defense guarantees in particular: legal representation and the defendant’s consent to video hearings, especially in cases of pre-trial detention. After this analytical presentation of the decision of the French Constitutional Council, it is particularly important to highlight the most recent studies that have addressed the management of procedures in France, including the applicable technical and legal standards as well as their practical outcomes: The ELI-Mount report emphasizes that remote trials must respect the European standards for judicial independence, ensuring that geographical, economic, and procedural factors do not hinder access to justice. The report recommends that all countries, including France, adopt technical and legal safeguards for remote hearings. These safeguards include secure communication channels, verification of participants’ identity, and measures to prevent technological bias or interference. The report also highlights that training of judicial personnel and continuous monitoring of the effectiveness of remote hearings are essential to maintain fairness and public trust in the judicial system.[33] The aforementioned principles have been reinforced by Article 706-71 of the French Code of Criminal Procedure,[34] as well as by the French Code of Civil Procedure,[35] particularly through its relevant provisions Articles 748-1 to 748-9, which set forth requirements to ensure parties’ identity, the integrity and confidentiality of exchanged files, and the extension of procedural deadlines to mitigate technical risks. One of the main tools employed is the Lawyers’ Private Virtual Network (RPVA), which allows attorneys to submit documents electronically and communicate directly with courts, thus accelerating procedures and reducing the need for physical appearances.[36] Technologies such as artificial intelligence (AI) and data analytics are increasingly used to improve the effectiveness of e-litigation. For instance, natural language processing (NLP) techniques have been applied to extract legal indicators from court judgments, helping reduce information asymmetry between parties and enhancing access to justice.[37] All of these studies suggest that remote litigation may affect the dynamics of courtroom interactions, which calls for the development of new protocols to ensure procedural effectiveness and protect the rights of the parties involved.[38] In Algeria, some legal professionals have expressed objections to electronic litigation for the following reasons:[39] It allows for the remote trial of defendants who are fugitives abroad, particularly in countries that lack extradition agreements with Algeria, thereby enabling such defendants to remain free and avoid punishment; Although the use of video sessions is a promising tool to mitigate the issue of trial postponements, trying defendants through this technology conflicts with the procedural system currently practiced before the courts; Moreover, this approach infringes upon defense rights and undermines fundamental litigation principles. This is because existing legislation assumes the principle of public hearings and trials, as well as the mandatory presence of the defendant during the session. Without the defendant’s presence, the defense is deprived of the right to advocate, which could lead to significant legal complications under this system. 2.3 An assessment of the digitalization of justice and the extent to which it upholds the fundamental principles of litigation 2.3.1 The Advantages of Judicial Digitalization In our assessment, the adoption of remote litigation technology has the potential to provide substantial procedural safeguards related to the proper administration of justice, provided it is implemented in a manner consistent with the spirit of the law and guarantees the parties’ rights to a fair trial. Regarding documentation, evidence, electronic preservation and notification, as well as access to case files via the court’s website, we believe that replacing traditional paper-based methods with electronic means does not undermine the fundamental principles of litigation. Rather, it contributes to better documentation of trial procedures, ensures speed, accuracy, and reliability, and introduces greater flexibility to judicial processes compared to classical methods. What proves our previous point, Studies have demonstrated that the use of artificial intelligence in criminal cases significantly enhances judicial efficiency while incurring relatively lower costs compared to traditional justice systems.[40] Digital platforms, such as the Lawyers’ Private Virtual Network (RPVA), allow for the electronic submission of documents and direct communication with courts. This facilitates the acceleration of judicial procedures and reduces the necessity of physical presence in court hearings.[41] The digitalization of justice enables the online publication of court records, thereby increasing transparency and allowing citizens to monitor judicial proceedings. Nevertheless, it remains essential to strike a balance between digital openness and the protection of privacy.[42] 2.3.2 The disadvantages of judicial digitalization Digitalization raises serious concerns regarding the protection of personal data, as digital systems may be vulnerable to breaches or misuse. Strong and effective security measures are therefore indispensable.[43] Algorithms employed in digital justice may contain embedded biases that influence judicial decisions, potentially leading to unjust outcomes. Hence, transparent and fair algorithmic design is necessary to minimize these risks.[44] Certain jurisdictions face challenges in adopting modern technology due to limited resources and weak digital infrastructure, which undermines the effectiveness of e-litigation and the broader process of judicial digitalization.[45] Although remote video trials have become a necessity driven by technological advancement, the manner in which these trials are conducted does not provide a comprehensive and accurate view of courtroom proceedings in terms of parties, witnesses, and the public. This hinders the realization of the principles of publicity and orality required by a fair trial,[46] particularly when technical failures occur that prevent communication with the parties and their ability to be questioned remotely. Conclusion In concluding this discussion, it is important to present some key findings and, correspondingly, propose certain solutions and recommendations, particularly given the challenges facing the new government amid the rapid development of artificial intelligence technologies. The aim is to enhance the effectiveness of the legal framework governing AI applications within the judicial system. Study Findings: The most critical phase in criminal proceedings is the pre-trial stage, during which the legislator has enshrined safeguards to protect the life and privacy of the individual under investigation. Even amid investigative and criminal inquiry procedures, the legislator has maintained the protection of individuals’ rights to privacy and private life by imposing stringent restrictions on the use of electronic surveillance when necessary. It has been established that AI systems exert significant influence both during the pre-trial phase, particularly in crime investigations, which impact the right to digital privacy, and during the electronic trial phase, affecting constitutional guarantees in litigation, especially the principles of the right to defense and the principle of oral proceedings. Based on both the French and Algerian experiences, it appears that artificial intelligence systems have had a positive impact in accelerating judicial procedures and reducing financial burdens on litigants, particularly in cases involving parties located in different geographical areas. The technical standards applied in this context demonstrate that the digital infrastructure constitutes a decisive factor for the success of remote trials; however, disparities in the technological readiness of courts significantly affect the effectiveness of implementation. Furthermore, practical experience shows that procedural safeguards—such as prior consent of the parties, the reliability of audio-visual transmission, and the possibility of appeal—remain a fundamental challenge to ensuring the right to a fair trial. Study Recommendations: Similar to the French and Algerian experiences, states should adopt a comprehensive legislative reform that guarantees full recognition of electronic documents and digitally rendered judgments, while ensuring harmonization between criminal and civil procedural codes; There is a critical need for the genuine implementation of artificial intelligence applications, which requires the development of algorithms that ensure a delicate balance between protecting the right to privacy and safeguarding the rights of litigants on one hand, and meeting the demands of judicial modernization on the other; All jurisdictions should invest in a unified digital infrastructure, including secure platforms for document exchange and data protection, while also benefiting from successful comparative experiences; Mandatory continuous training should be imposed on judges and lawyers in digital technologies to ensure the effective and fair conduct of remote trials; Strengthening appeal mechanisms and judicial oversight over electronically issued decisions is essential to guarantee that the rights of defense and constitutional safeguards are not compromised; Clear procedural protocols should be developed for the management of virtual hearings, taking into account the dynamics of communication between judges, parties, and witnesses, whether in domestic or international trials. 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Available at: <https://radioalgerie.dz/news/ar/article/20151008/54527.html>; Echorouk Online. (July 11, 2016). Hearing of a French witness in the first remote trial in the history of Algerian justice. Echorouk Online Newspaper. Available at: <https://www.echoroukonline.com/سماع-شاهد-فرنسي-بأول-محاكمة-عن-بع/>. Websites: CMS. (n.d.). CMS Expert Guide to Digital Litigation in France. Available at: <https://cms.law/en/int/expert-guides/cms-expert-guide-to-digital-litigation/france?utm_source=chatgpt.com>. Footnotes [1] Saidani, N. (2021). Criminal protection of the right to privacy in the field of informatics. Doctoral dissertation, University of Batna 1, p. 14. Available at: <https://dspace.univ-batna.dz/items/fe9fbbdb-ee56-4c1e-b68f-36ab7b404b58>. [2] Al-Sharif, Y., Mizghish, A. (2022). Legal mechanisms established to protect the right to digital privacy in Algerian legislation. Journal of Research and Business Law, 7(2), pp. 192-213. Available at: <https://asjp.cerist.dz/en/article/192238>. [3] Finck, M., Pallas, F. (2021). They who must not be identified—Distinguishing personal from non-personal data under the GDPR. Computer Law & Security Review, 40, 105523. p. 3. Available at: <https://doi.org/10.1016/j.clsr.2020.105523>. [4] Edwards, L., Veale, M. (2022). Slave to the algorithm? Why a “right to explanation” is probably not the remedy you are looking for. International Data Privacy Law, 12(1), p. 77. Available at: <https://doi.org/10.1093/idpl/ipab020>. [5] De Gregorio, G. (2022). Digital Constitutionalism and Privacy and Data Protection. In G. De Gregorio (Ed.), Digital Constitutionalism in Europe: Reframing Rights and Powers in the Algorithmic Society (p. 216). Cambridge University Press, Cambridge, p. 216. Available at: <https://doi.org/10.1017/9781009071215>. [6] Presidential Decree No. 20-442 promulgating the constitutional amendment approved by referendum on November 1, 2020. (December 30, 2020). Official Gazette 82. Available at: <https://www.joradp.dz/FTP/JO-FRANCAIS/2020/F2020082.pdf>. [7] Law No. 2000-03 on the general rules relating to postal and telecommunications services. (August 5, 2000). Official Gazette 48. Available at: <https://www.joradp.dz/FTP/jo-arabe/2000/A2000048.pdf>. [8] Law No. 06-01 on the prevention and fight against corruption. (February 20, 2006). Official Gazette 14. Available at: <https://www.joradp.dz/FTP/JO-ARABE/2006/A2006014.pd>. [9] Ordinance No. 15-02 amending and supplementing Ordinance No. 66-155 of 8 June 1966 (Code of Criminal Procedure). (July 23, 2015). Official Gazette 40. Available at: <https://www.joradp.dz/FTP/JO-FRANCAIS/2015/F2015040.pdf>. [10] Law No. 06-22 amending and supplementing Ordinance No. 66-155 of 8 June 1966 (Code of Criminal Procedure). (December 20, 2006). Official Gazette 84. Available at: <https://www.joradp.dz/FTP/jo-arabe/2006/A2006084.pdf>. [11] Jayyashi, A. F. M. (2014). Remote litigation: A legal study. Kufa Journal of Legal and Political Sciences, 1(21), pp. 100-129. Available at: <https://journal.uokufa.edu.iq/index.php/kjlps/article/view/9644>. [12] Osmani, L. (2016). The electronic litigation system as a mechanism for achieving development plans. Elmofaker Review, 11(1), pp. 215-225. Available at: <https://asjp.cerist.dz/en/article/62437>. [13] Mahmoud, S. A. (2007). The role of the computer in front of the Egyptian and Kuwaiti judiciary: Towards judicial e-process and electronic judiciary. Dar al-Nahda al-Arabiya, Cairo, p. 30. [14] Mahmoud, op. cit., p. 30. [15] Osmani, op. cit., p. 218. [16] Presidential Decree No. 02-55 ratifying, with reservation, the United Nations Convention against Transnational Organized Crime. (February 5, 2002). Official Gazette, No. 9. Available at: <https://www.joradp.dz/FTP/JO-FRANCAIS/2002/F2002009.pdf>. [17] Law No. 15-03 on the modernization of the justice sector. (February 1, 2015). Official Gazette 6. Available at: <https://www.joradp.dz/FTP/JO-ARABE/2015/A2015006.pdf>. [18] notably since the issuance of Presidential Decree No. 02-55 in 2002, its discussion in 2007, and its eventual enactment in 2014. [19] Radio Algeria. (October 8, 2015). Conducting the first remote visual trial at Kolea Court. Radio Algeria. Available at: <https://radioalgerie.dz/news/ar/article/20151008/54527.html>. [20] Echorouk Online. (July 11, 2016). Hearing of a French witness in the first remote trial in the history of Algerian justice. Echorouk Online Newspaper. Available at: <https://www.echoroukonline.com/سماع-شاهد-فرنسي-بأول-محاكمة-عن-بع/>. [21] Selçuk, S., Konca, N. K., Kaya, S. (2025). AI-driven civil litigation: Navigating the right to a fair trial. Computer Law & Security Review, 57, p. 106136. Available at: <https://doi.org/10.1016/j.clsr.2025.106136>. [22] Al-Badaynah, D. M. (September 2-4, 2014). Cybercrimes: Concept and causes. Paper presented at the Scientific Symposium “Emerging Crimes in Light of Regional and International Changes”, College of Strategic Sciences, Amman, Jordan, p. 6. Available at: <https://www.researchgate.net/profile/Diab-Al-Badayneh/publication/328064682_aljraym_alalktrwnyt_almfhwm_walasbab/links/5bb5be4392851ca9ed37abf3/aljraym-alalktrwnyt-almfhwm-walasbab.pdf>. [23] Al-Zahrani, N. S. (October 15, 2008). The electronic court in the information technology era. Al-Riyadh Newspaper. Available at: <https://www.alriyadh.com/380971>. [24] Bhatt, H., Bahuguna, R., Swami, S., Singh, R., Gehlot, A., Akram, S. V., Gupta, L. R., Thakur, A. K., Priyadarshi, N., Twala, B. (2024). Integrating industry 4.0 technologies for the administration of courts and justice dispensation — a systematic review. Humanities and Social Sciences Communications, 11(1), Article 1076, p. 15. Available at: <https://doi.org/10.1057/s41599-024-03587-0>. [25] Utani, S. (2012). The electronic court: Concept and application. Damascus University Journal for Economic and Legal Sciences, 28(1), pp. 165-208. Available at: <https://www.damascusuniversity.edu.sy/mag/law/images/stories/1-2012/a/165-208.pdf>. [26] Gaffar, H. (2024). Implications of Digitalization and AI in the Justice System: A Glance at the Socio-legal Angle, Law and World, vol. 10, no. 31: 154. Available at: <https://lawandworld.ge/index.php/law/article/view/585>. [27] Decision No. 2020-872 QPC of the French Constitutional Council. (January 15, 2021). Available at: <https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000042993586>. [28] Judgment No. 2351: Use of videoconferencing before criminal courts in the context of the state of health emergency. (October 13, 2020). Conseil d’État (France). Légifrance. Available at: <https://www.legifrance.gouv.fr>. [29] Ordinance No. 2020-303 of 25 March 2020 adapting the criminal procedure rules under the Emergency Law No. 2020-290 of 23 March 2020. (March 26, 2020). Official Journal of the French Republic, JORF No. 0074, p. 5809. Available at: <https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000041755529/>. [30] Décision n° 2020-872 QPC. (January 15, 2021). Invalidating video hearings without consent as violating rights of defense. Constitutional Council. Available at: <https://www.conseil-constitutionnel.fr/decision/2021/2020872QPC.htm>. [31] Décision n° 2021-911/919 QPC (June 4, 2021). Censuring unrestricted use of videoconferencing without legal safeguards. Constitutional Council. Available at: <https://www.conseil-constitutionnel.fr/decision/2021/2021911_919QPC.htm>. [32] Al-Qadi, R. M. (2022). Comment on the Decision of the French Constitutional Council on the Unconstitutionality of the Use of Audio-Visual Communication before the Criminal Judiciary in the Context of a State of Health Necessity. Journal of Legal and Economic Research, Faculty of Law, Mansoura University, 12 (79), p. 177 ff. Available at: <https://mjle.journals.ekb.eg/article_235640.html?lang=en>. [33] ELI-Mount. (2023). European standards of judicial independence. Institut Européen du Droit, pp. 12-15. Available at: <https://www.europeanlawinstitute.eu/fileadmin/user_upload/p_eli/Publications/ELI-Mount_Scopus_European_Standards_of_Judicial_Independence.pdf>. [34] French Code of Criminal Procedure, Articles 706-71. Légifrance. Available at: <https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000051751938>. [35] French Code of Civil Procedure. (2024). Légifrance. Available at: <https://www.legifrance.gouv.fr/codes/texte_lc/LEGITEXT000006070716/>. [36] CMS. (n.d.). CMS Expert Guide to Digital Litigation in France. Available at: <https://cms.law/en/int/expert-guides/cms-expert-guide-to-digital-litigation/france?utm_source=chatgpt.com>. [37] Boniol, P., Panagopoulos, G., Xypolopoulos, C., El Hamdani, R., Restrepo Amariles, D., Vazirgiannis, M. (2020). Performance in the Courtroom: Automated Processing and Visualization of Appeal Court Decisions in France, p. 1. Available at: <https://arxiv.org/pdf/2006.06251>. [38] European Law Institute. (2024). European standards of judicial independence. Institut Européen du Droit, pp. 1-62. Available at: <https://www.europeanlawinstitute.eu/fileadmin/user_upload/p_eli/Publications/ELI-Mount_Scopus_European_Standards_of_Judicial_Independence.pdf>. [39] Boumediene, B. (2021). The law of modernizing justice and its impact on achieving basic principles in litigation: Read in project Law No. 15/03 issued on 01/02/2015 related to modernization of justice. Journal of Legal and Social Sciences, 6(4), p. 1261. Available at: <https://asjp.cerist.dz/en/article/170253>. [40] Nouri, Z., Ben Salah, W., & Al Omrane, N. (2024). Artificial Intelligence and Administrative Justice: An Analysis of Predictive Justice in France. Hasanuddin Law Review, 10(2), p. 119. Available at: <https://doi.org/10.20956/halrev.v10i2.5541>. [41] Singh, M., Upadhyay, S. N. (2024). Digitization of Legal Aid Services and Criminal Justice. Law and World, p. 5. Available at: <https://lawandworld.ge/index.php/law/article/view/471>. [42] Allard, T., Béziaud, L., Gambs, S. (2020). Online publication of court records: Circumventing the privacy-transparency trade-off. arXiv, p. 2. Available at: <https://arxiv.org/pdf/2007.01688>. [43] Allard, op. cit., p. 2. [44] Ibid., p. 2. [45] Allard, op. cit., p. 2. [46] Amarah, A. H. (2018). The use of videoconferencing technique in the investigation and criminal procedures. Dirāsāt wa Abḥāth: The Arab Journal of Human and Social Sciences, 10(3), p. 68. Available at: <https://asjp.cerist.dz/en/article/59930>.
Alternative Dispute Resolution as a Viable Template for the Settlement of Family Disputes in Nigeria
In recent times, the various Alternative Dispute Resolution (ADR) mechanisms are fast becoming the best means of resolving family disputes. This is because family disputes are often confidential, and these ADR mechanisms encourage confidentiality. This paper analysed the viability of ADR as a means of resolving family disputes in Nigeria. It emphasised litigation’s limitations in resolving emotionally charged family matters and investigates how alternative dispute resolution can encourage confidentiality, party autonomy, and relationship maintenance. Using a comparative and doctrinal methodology, this study examined the acceptance and effectiveness of ADR in nations including the United Kingdom, the United States, and Finland. It also assessed Nigeria’s legislative framework governing matrimonial disputes, specifically the Matrimonial Causes Act (MCA) of 1970, as well as the feasibility of incorporating ADR into it. The study concluded that, while ADR has the potential to resolve marital maintenance, child custody, and property conflicts, statutory and cultural hurdles persist. The study concluded by recommending amendments to improve the legal recognition of ADR in family law and making practical recommendations to boost its usage in Nigeria. Keywords: Alternative dispute resolution, family disputes, Matrimonial Causes Act, Nigeria. Introduction Alternative Dispute Resolution (ADR) proffers the easiest and fastest mechanisms of resolving disputes.[1] All its mechanisms encourage parties to dictate how their dispute should be resolved and also ensure that parties can maintain a relationship even after the dispute has been settled. Family relationships are complicated, and by extension, family disputes. Unlike business-related disputes, where parties do not necessarily have to be friends to work together, family disputes are usually emotional, and there is usually a need for parties to keep relating with one another even after the dispute settlement. Therefore, family disputes require a dispute resolution mechanism that can help parties preserve relationships, and ADR has suitable mechanisms for this. The Matrimonial Causes Act 1970[2] is the law enacted for the purpose of dealing with matters relating to legal marriages in Nigeria. It makes provision for matters such as dissolution of marriage, spousal maintenance, property rights, and child custody, among others. The law provides that all matters emanating from the provisions of the Act must be resolved at the High Court.[3] This provision poses a great problem to the possibility of resolving family disputes using ADR mechanisms. This paper discusses ADR and its different mechanisms, and it discusses extensively the way ADR mechanisms have been used to resolve family disputes in countries like the United States of America, Finland, and the United Kingdom. It explores the effectiveness of ADR in resolving family disputes in these jurisdictions. Furthermore, this paper examines the possibilities of resolving family disputes with ADR mechanisms in Nigeria with particular attention to the benefits and challenges that may be attached. As a result, this paper seeks to answer the following questions: Are ADR mechanisms suitable for the resolution of family disputes in Nigeria? What are the challenges of using ADR mechanisms to resolve family disputes in Nigeria? How can the identified challenges be resolved to ensure effective use of ADR for settling family disputes in Nigeria? This paper is divided into three sections. The first part will discuss ADR mechanisms and Family Disputes. The second part will examine the use of ADR for resolving Family disputes in other Jurisdictions. Lastly, the third section will discuss the prospects and challenges of using ADR mechanisms to resolve family disputes in Nigeria. Methodology This paper adopts a mixed-methods approach, combining doctrinal and comparative methods to provide a comprehensive analysis of the subject matter. The doctrinal methodology is employed to examine primary and secondary legal sources such as statutes, case law, and scholarly writings. In particular, the Matrimonial Causes Act (1970) and the Arbitration and Mediation Act (2023) are analysed to understand the extent to which Nigerian law currently accommodates or restricts the use of ADR in family disputes. Judicial precedents and scholarly commentaries are also examined to assess the legal reasoning that underpins the acceptance or rejection of ADR in family matters. The comparative methodology is used to evaluate how ADR has been effectively utilised in resolving family disputes in other jurisdictions, including the United Kingdom, the United States, and Finland. These jurisdictions were deliberately selected because of their distinct yet relevant experiences: the UK, due to its historical influence on Nigerian law; the US, as a jurisdiction with innovative ADR practices across states; and Finland, for its advanced institutionalisation of family mediation. By comparing Nigeria’s legal framework with those of these jurisdictions, this paper identifies both best practices and potential challenges for transplanting ADR mechanisms into the Nigerian family law system. The combination of doctrinal and comparative methods ensures that the analysis is not only grounded in Nigerian statutory and judicial frameworks but also enriched by insights drawn from international experience. This dual approach allows for a deeper understanding of the viability, benefits, and possible limitations of introducing ADR into the settlement of family disputes in Nigeria. 1. Alternative Dispute Resolution in Nigeria Alternative Dispute Resolution (ADR) can be defined as ‘an encompassing all legally permitted process of dispute resolution other than litigation’.[4] Nolan-Haley defined it as ‘an umbrella term that refers generally to alternatives to the court adjudication of disputes…’.[5] ADR is ‘a collective description of methods of resolving disputes otherwise than the normal trial process’.[6] These definitions suggest that any mechanisms for settling disputes other than litigation are ADR. There are several mechanisms of ADR, such as negotiation, mediation, conciliation, arbitration, early-neutral evaluation, facilitation, mini-trials, expert appraisal, summary jury trials, and mediation-arbitration, among others. For this paper, negotiation, mediation, and arbitration will be examined extensively. 1.1. Negotiation In layman’s parlance, negotiation involves a form of bargaining between parties to reach a common settlement.[7] However, in legal parlance, negotiation is the resolution of disputes through a consensual settlement by the parties to a dispute. It forms the basis of dispute resolution. In this ADR process, the parties do not need to introduce a neutral third party, and if one is introduced, it would be for the making of a representation on behalf of the parties to the contract. Negotiation involves a direct interaction between disputing parties wherein one makes an offer to the other based on the objective assessment of the other party.[8] It involves parties to a dispute having discussions with one another with the intent to settle their differences while ensuring that the decisions reached are beneficial to all parties.[9] The stages involved in a negotiation process are: the preparation and orientation stage; the opening discussion stage; the bargaining stage; the closing stage; and the post-negotiation stage.[10] 1.2. Mediation This is the resolution of disputes by reference of the dispute to a neutral third party called the mediator.[11] In mediation, the parties may agree that the mediators be appointed by a body, person, or institution in the event of disputes between them. Also, the parties may specify the qualities which the mediators must possess before he can have the jurisdiction to resolve disputes between the parties using mediation. For example, the parties may decide that the chief judge of a state should appoint a mediator who must be a Nigerian and be trained in marine law in the event of disputes between them. Mediation involves the intervention of a neutral third party, who is referred to as a mediator, to help disputing parties resolve their dispute.[12] The stages of mediation are: the Introduction stage; the opening stage; the private caucus session; the joint session; and the settlement stage.[13] The Nigerian Arbitration and Mediation Act 2023 defines mediation as: A process, whether referred to by the expression mediation, conciliation or an expression of similar import, where parties request a third person “the mediator” to assist them in their attempt to reach an amicable settlement of their dispute arising out of or relating to a contractual or other legal relationship but the mediator does not have the authority to impose upon the parties a solution to the parties.[14] From this definition, it can be noted that, unlike an arbitrator, a mediator does not have the power to give a binding decision; he can only facilitate the process. Also, in terms of flexibility, mediation has a more flexible approach towards the resolution of a dispute. In the course of resolution, the parties in mediation may choose to state facts throughout the proceedings, but there is a point in arbitration where claims must be made in arbitration. 1.3. Arbitration Arbitration means, ‘a commercial arbitration whether or not administered by a permanent arbitral institution’. Arbitration is ‘a process of ADR in which a neutral third party, called an arbitrator or neutral, renders a decision after a hearing at which both parties have an opportunity to be heard’.[15] It was defined in the case of Commercial Insurance v. Alli[16] as a mechanism by which parties agree to have their dispute settled by a neutral third party[17] and to be bound by the decision that such third party makes. Therefore, when the arbitrator makes his award, it is final, binding, and cannot be challenged based on law or evidence unless that is reasonable. It has also been judicially decided in the case of C.N. Onuselongu International Enterprises v Afribank Nig. Ltd.[18] that arbitration is a voluntary agreement between the parties to resolve their dispute, which is recognised by the court. Hence, the court will give its support to see to its smooth administration. Arbitration is commonly known in Nigeria as a mechanism for settling commercial disputes. 2. Family and Family Disputes To understand the definition and dynamics of family disputes, it is important to define what a family is. A family is: a group of closely related people, known by a common name and consisting usually of a man and his wives and children, his son’s wives and children, his brothers and half-brothers and wives and children, and probably near relations.[19] Simply put, a family is made up of people who are related by blood or by marriage. Although in some other countries, marriage now occurs between people of the same sex, in Nigeria, Legal marriage can only exist between a man and a woman. The only type of marriage recognised under the MCA is the monogamous marriage. Therefore, a standard family in the Nigerian legal parlance is that consisting of a man and a woman and their children. For this paper, a family will be considered as stemming from a legal marriage between a man and a woman, with or without children. As in any form of human relationship where disputes arise, so do family disputes arise among family members. Family disputes have been defined as ‘any conflicts that occur within a family-between husbands and wives, parents and children, between siblings, or with extended families (grandparents, aunts, uncles, etc.)’.[20] Hence, family disputes may be in the form of couples seeking dissolution of marriage, or separated couples fighting over custody of children, or fights over ownership of property, or spousal maintenance. It can also be extended family members fighting over family properties. Family dispute is a very distinct form of conflict because family members involved in the conflict are emotionally attached, their relationships are usually on a long-term basis, and each family has its own uniqueness and peculiarity.[21] These uniqueness and peculiarity need to be put into consideration when resolving family conflicts. Dispute resolution mechanisms that take into consideration the unique features of families having disputes will be more effective in resolving the dispute. The strict rule of the court system may not address the entire issue causing the dispute effectively. There are some family issues that are the core basis of the dispute that should never be made public, and that family members will not openly discuss in the courtroom. Types of Family Conflict - Conflicts between husband and wife include: divorce, property rights, maintenance, and child custody; Sibling rivalry: this type of family dispute deals mainly with children of the same parents fighting; and Parent-Child conflict: this can be a dispute between a child and his or her father or mother or both parents. For this article, the type of family dispute that will be focused on is the conflict between husband and wife. The causes of this type of family dispute vary depending on each circumstance. Issues like infertility, financial problems, poor communication, infidelity, opposing parenting styles, and the need for independence, among others.[22] Some of the issues which emanate from conflicts between husbands and wives are divorce, determination of property rights ownership, spousal maintenance, and child custody. These issues are delicate legal issues that ought to be determined with care. 3. Settlement of Family Disputes in Nigeria In Nigeria, the family is considered a sacred unit built on the sacred institution of marriage.[23] Traditionally, it is considered a union between two families- the bride’s and the groom’s families. Therefore, based on the importance attached to marriage by society, a couple cannot decide to change their marital status by themselves. It is on this basis that the MCA provides that disputes emanating from a marriage under the MCA that falls into the category of matrimonial causes may be resolved through litigation at the State High Court. Section 2 (1) of the MCA states that: A person may institute matrimonial causes under this Act in the High Court of any state of the Federation, and for that purpose, the High Court of each State of the Federation shall have jurisdiction to hear and determine . . . matrimonial causes under this Act. Section 114 of the MCA defines matrimonial causes as proceedings for a decree of dissolution of marriage, nullity of marriage, judicial separation, restitution of conjugal rights, and jactitation of marriage;[24] decisions on spousal maintenance, custody, and maintenance of children in matters resulting from a case instituted for any of the aforementioned decrees.[25] With these provisions, it is clear that most matters relating to family that emanate from marriage under the MCA in Nigeria may be resolved in a High Court in Nigeria. The phrase, ‘may institute matrimonial causes under this Act in the High Court of any state of the Federation’ suggests that it is not a compulsory provision, and if there are other settlement options, the party may explore them. Although the use of ‘may’ in a statute generally makes a provision discretionary, there are instances where such provisions are mandatory. For instance, the Court of Appeal in the case of Sino-Afric Agriculture & Ind Company Ltd & Ors v. Ministry of Finance Incorporation & Anor held that the ‘may’ in an arbitration Clause does not render the agreement by the parties to resolve the dispute through arbitration useless. Rather, it allows the parties to decide to forgive the contractual right if they so please, but where the contractual right is not forgiven, it is mandatory for them to arbitrate.[26] That is, a party can decide to forgive the other party and not approach arbitration when a dispute arises, but if he decides not to forgive, he must resolve the dispute through arbitration. Bringing this argument to Section 2 of the MCA, the ‘may’ refers to the right of the party to decide not to approach the Court that is litigation when matrimonial causes arise. It, however, compels the parties to ensure that if they ever decide to approach the court, they should approach a State High Court. The ‘may’ there pertains to the question of the exercise of your rights, not the destination. Therefore, a party can decide to resolve their matrimonial causes outside the courtroom. The question that now comes up is whether all matrimonial causes can be resolved using other mechanisms chosen by the parties. The answer is No. The general rule of interpretation that a provision of a law should not be interpreted in isolation applies. The MCA should be interpreted in consideration of its entire provisions. Section 56 of the MCA provides that the dissolution of a marriage can only be done by an order of Decree Nissi and Decree Absolute granted by a court of competent jurisdiction.[27] Thus, dissolution of marriage, also known as divorce, can only be done by the court. This is because the marital status of the couple does not affect only the couple; it affects society as well. Therefore, dissolution is not about the parties alone, and they cannot decide their status by themselves because the public, which was aware of their marriage, must be aware of its dissolution.[28] Nonetheless, other matrimonial causes that only affect the couple, such as spousal maintenance, property rights, and child custody, can be resolved by mechanisms chosen by the parties. There is no strict provision in the MCA for these to be resolved in the High Court. Parties are at liberty to decide how they want to resolve their disputes, provided their decision to do so will not be injurious to public interest. The Supreme Court in Abey v Alex[29] per Uwaifo JSC stated that, ‘it would appear that it can be argued that the power to settle or compromise at any stage of a pending proceeding extends even to those compromising judgments in certain situations’. This decision suggests that the power of the parties to resolve their dispute is infinite. Where parties agree to do something other than what the court has decided, the parties are superior to the court for their own dispute. In Offor v Leaders & Co Ltd,[30] the Court of Appeal held that, ‘it is settled law that parties are entitled to settle or compromise a dispute at any stage of pending proceedings… this right has been held to extend even to that of compromising judgments in civil actions’. A combined interpretation of these decisions is that parties can decide to handle their disputes however they choose to, provided their decision does not affect a third party negatively. As such, parties can decide to resolve their matrimonial causes other than dissolution of marriage using any resolution mechanism they so desire. The MCA recognises the need for parties to matrimonial causes to try to resolve their disputes without court intervention. This explains why Section 11 provides that parties who have filed for dissolution of marriage must attempt to resolve the dispute outside the court before proceedings can commence. Evidence of such a reconciliatory process must be presented in court and must have been unsuccessful before the court can proceed with the hearing of the petitions. Although in the instance of this Section, their lawyer is the neutral third party helping them to resolve the dispute. This paper opines that if the Courts have taken judicial notice of the possibility of resolving matrimonial causes outside the courtroom with a lawyer acting as the neutral third party, then it should be possible to use ADR to resolve family disputes without instituting action in court. ADR mechanisms should be explored more by parties to family disputes in order to resolve their disputes amicably and more satisfactorily. 4. Possibility of Mediating Family Disputes in Nigeria The Arbitration and Mediation Act 2023 (AMA 2023) repealed the Arbitration and Conciliation Act 1988 and became the first Act on Mediation in Nigeria. AMA 2023 makes provision for different kinds of mediation. In particular, it recognises domestic civil mediation.[31] That is, AMA 2023 encourages mediation of civil matters in Nigeria. Family disputes are a civil matter and, as such, can be subjected to mediation for their resolution. Section 70 (4) of AMA 2023 provides that cases can be referred to mediation from arbitration, litigation, and other similar proceedings. This means that the court can refer certain matters to mediation where it deems it appropriate to do so. Therefore, civil matters involving family disputes other than divorce can be referred to mediation. Permission to have a virtual mediation process. Section 82 (2), the settlement agreement resulting from a mediation shall be binding on the parties and enforceable in court as a contract, consent judgment, or consent award. The Act makes provision for mediation in Sections 67 and 87 of the Act 5. The Extent of Use of Alternative Dispute Resolution Mechanisms to Resolve Family Disputes in Other Jurisdictions In most countries, mediation and arbitration are the major ADR mechanisms used to resolve family disputes. Some of the jurisdictions that will be examined are the United Kingdom, because of the close relationship of our legal systems as a result of colonialism, the United States, because it is a world-class society that is known for being at the forefront of several legal innovations, and Finland, for its robust practice of family arbitration. 5.1. The United Kingdom Mediation is often used in the United Kingdom to resolve child custody and care disputes.[32] ‘Family mediation remains an increasingly popular option for many separating couples and a priority of the United Kingdom government’.[33] The fact that ADR enables parties to a dispute to decide how they want their disputes to be resolved has made ADR a more likeable dispute resolution option for parties to family disputes.[34] ADR mechanisms used mainly in the UK are mediation, collaborative law, arbitration, and negotiation through lawyers. 5.1.1. Collaborative practice This is also known as collaborative law. It was established by Stuart Webb, a Minnesota family lawyer, and has been widely received in countries like the United States, Europe, Canada, Australia, and was launched in England in 2003.[35] It is a voluntary and facilitates the family law process, enabling couples who have decided to end their marriage to work with their lawyers and other family professionals, in order to achieve a settlement that best meets the specific needs of both parties and their children, thus avoiding the uncertain outcome of the court.[36] Parties are expected to have signed a participation agreement, which binds them to the process and also provides that the lawyers who represent them in the process cannot represent them in litigation if they later decide to go to court. The Participation Agreement provides for the following: parties should not go to court during the process; parties should disclose all documents and information relating to the dispute; the experts will be neutral, and who will be hired will be decided by both parties; it will be a win-win situation; and their children will not be involved in the process. It addresses legal, emotional, and financial issues through a team made up of lawyers, mental health professionals, or child specialist, and a financial specialist.[37] The agreement reached is submitted to the court for approval.[38] 5.1.2. Mediation It is a process a neutral third party helps couples identify their issues and foster solutions. The mediator, after the introductory stage, holds a private session called a caucus through which he tries to understand the demands, interests, positions, and oppositions of the parties, before proceeding to hold a joint session with them to reconcile their differences.[39] At the joint session, the mediator focuses on the interests of the parties. In the case of mediation relating to family issues, such interests include budget, parenting schedules, financial obligations, and properties, among others. The mediation ends when parties have agreed on all the issues and the mediator has sent the terms to the judge to sign. There are various techniques of mediation that have been put in place to ensure that parties to a family dispute utilize mediation before approaching the court. There is the Compulsory Mediation Information and Assessment Meeting (MIAM), which parties must attend before they can approach the family court. At this meeting, the parties meet with the mediator to determine if their dispute is suitable for mediation. Parties to family disputes involving the following are exempted from attending MIAM: a party who has evidence of domestic violence against the other part; the application involves a child; the party already attended an MIAM; the party has applied for an exemption from MIAM within the last four months preceding the case; and if the application needs urgent attention because failure to do so may: lead to risk to life of a party, a party suffering significant hardship, cause risk to the life of a child and so on. There is a legal aid option for parties to a dispute who are not working or on a low income. In the United Kingdom, there is the Family Mediation Council. People who want to utilize mediation in the UK are advised to pick the mediators from those registered with this council.[40] 5.1.3. Arbitration Arbitration is an ADR mechanism where divorcing couples select a neutral third party, called an arbitrator with family law experience, to hear their case and give a final decision after having heard from both parties. 5.1.4. Private financial dispute resolution Private Financial Dispute Resolution is a negotiation that takes place during the hearing of a financial remedy court application. This process is led by a judge, and the judge guides the parties on the best way to resolve their disputes.[41] The judge is not allowed to impose a decision on the parties. This mechanism is used to resolve the financial aspect of a family dispute. Parties are expected to focus on reaching a compromise and settling their dispute. Hence, parties do not give evidence at FDR. 5.1.5. Mediation voucher scheme As a response to COVID-19, the UK government launched a ‘Time-limited Mediation Voucher Scheme’ to help people resolve their family disputes. This scheme was also launched to encourage people to utilize mediation in resolving their family disputes. The UK government contributes 500 Euros towards the cost of mediation to encourage people who are eligible to use the scheme. 5.2. The United States of America Family disputes in the United States encompass a wide range of issues that can arise within a family, including divorce, child custody, visitation rights, child support, and spousal support, among others. These disputes are inherently sensitive and can have a lasting impact on the well-being of family members, particularly children, and can lead to prolonged conflicts and emotional trauma if it is not addressed effectively. Due to the sensitivity involved in family disputes, the use of Alternative Dispute Resolution is encouraged as a mechanism for settling disputes. In family law cases, courts in the United States often encourage parties to consider ADR processes before attempting traditional litigation. Some States have specific rules that require parties in family law disputes to participate in mediation or other ADR processes before going to court. For example, Texas Statutes Civil Practice and Remedies Code in Section 154 provides that: It is the policy of this State to encourage the peaceable resolution of disputes, with special consideration given to disputes involving the parent-child relationship, including the mediation of issues involving conservatorship, possession, and support of children, and the early settlement of pending litigation through voluntary settlement procedures.[42] Title 9 of the US Code establishes federal law supporting arbitration.[43] These requirements are often aimed at promoting cooperative solutions, reducing conflict, and easing the burden on the court system. The United States offers a wide range of Alternative Dispute Resolution mechanisms for family law disputes, such as: Mediation, Arbitration, Early Neutral Evaluation, Collaborative law, and Parenting Coordination.[44] 5.2.1. Mediation Mediation allows families to address issues such as divorce, child custody, visitation, and financial matters in a more collaborative and private setting. During a mediation session, each party is allowed to express their concerns and interests while the mediator helps guide the conversation toward finding common ground. The mediator does not make decisions for the parties but instead helps them explore options and come up with creative solutions that meet everyone’s needs. There is no specific federal legislation governing mediation in the United States. However, many states have adopted the Uniform Mediation Act[45] to provide a consistent framework for mediation. 5.2.2. Arbitration Arbitration is a more formal process in which a neutral third party, known as the arbitrator, acts as a decision-maker. The arbitrator’s decisions are legally enforceable and act as a replacement for a trial. In family law matters, you can use arbitration to resolve most kinds of disputes. The North Carolina Family Law Arbitration Act states that one can agree to arbitrate all issues arising from a marital separation or divorce, except for the divorce itself, while preserving a right of modification based on a substantial change of circumstances related to alimony, child custody, and child support.[46] Forty-nine states have adopted the 1956 version of the Uniform Arbitration Act as state law.[47] 5.2.3. Early Neutral Evaluation Early Neutral Evaluation (ENE) in family disputes in the United States involves a process where a neutral third party assesses the case and gives evaluative feedback and recommendations to help parties resolve without going to trial. Early Neutral Evaluation was first adopted to deal with the rising demand for custody evaluations and initially used only for child custody and parenting time (visitation) cases. This is known as Social Early Neutral Evaluation (SENE). Early Neutral Evaluation has subsequently evolved to include a separate second program known as Financial Early Neutral Evaluation (FENE), which focuses on child support, alimony, and property division.[48] 5.2.4. Collaborative law Collaborative law was originally developed in the United States of America.[49] Collaborative law is a relatively new method of alternative dispute resolution primarily used in divorce and family cases. In this process, each party hires a lawyer, and professionals like financial experts or divorce coaches may be involved. The parties come together to negotiate agreements. It is similar to mediation; a key difference is that in collaborative law, the parties agree not to involve the court system. If a lawsuit is threatened, the lawyers must withdraw from the process. Although it is more cost-effective than going to court, collaborative law can be more expensive and time-consuming than mediation due to the involvement of lawyers and specialists.[50] 5.2.5. Parenting coordination Parenting coordination is a specialized form of family law Alternative Dispute Resolution (ADR) in the USA that focuses on resolving parenting disputes. A parenting coordinator (PC) assists parents in creating and adhering to parenting plans. This process helps parents resolve disagreements concerning their children in a structured and cooperative manner, aiming to reach agreements that prioritize the well-being of the children involved.[51] ADR is prevalent for resolving family disputes in the United States. It provides a conducive environment for respectful communication, compromise, and understanding. Using ADR instead of traditional litigation can help families achieve faster, more cost-effective, and less adversarial resolutions that prioritize the well-being of the children and the family as a whole. ADR methods emphasize confidentiality, which is beneficial in sensitive family matters where privacy is crucial. It is also more flexible, allowing families to tailor solutions to their unique circumstances. 5.3. Finland Finland is a country with a great model for family dispute mediation. Family mediation in Finland is divided into three different stages, and each stage deals with a distinct aspect of family law. The three stages are: Out of court mediation: This stage is handled by social services and family mediators. It deals with disputes relating to child care and custody; Court mediation: this deals with disputes relating to custody, housing, right of access, and financial support of children; Mediation to implement a decision: Mediation in Finland is voluntary, confidential, and free. The mediator is usually a judge, assisted by an expert such as a social worker or a psychologist. The decision ordering mediation does not require the consent of the parties. The Finnish legal system recognizes the importance of ADR as a means to achieve efficient and amicable resolution of disputes, particularly in family law disputes where maintaining relationships is a priority. Due to the financial costs, lengthy process, and adversarial nature of litigation, individuals often prefer alternative dispute resolution methods when it comes to matters in family law.[52] In Finland, there are several Alternative Dispute Resolution mechanisms available to disputants including arbitration, mediation, and collaborative law. 5.3.1. Arbitration Arbitration is a dispute resolution mechanism where parties agree to have their case heard and settled by one or more independent and impartial individuals called arbitrators, rather than going through traditional court processes. Arbitration in Finland is governed by the Finnish Arbitration Act of 1992. This Act establishes the procedures and guidelines for arbitration proceedings in Finland, ensuring that parties have a fair and efficient process for resolving their disputes.[53] In addition to the Finnish Arbitration Act, the Rules of the Arbitration Institute of the Finnish Chambers of Commerce play a significant role in shaping arbitration in Finland.[54] The Institute, also known as the Finland Arbitration Institute (FAI), is a leading arbitration institution in Finland that offers a range of services to facilitate arbitration proceedings. 5.3.2. Mediation Mediation is a process where a trained mediator facilitates discussions between parties to help them reach a mutually acceptable resolution to their dispute. It focuses on communication, understanding, and finding a common ground to achieve a peaceful and voluntary agreement. Mediation in Finland is governed by the Finnish Bar Association Mediation rules[55] and the Finnish Act on Mediation,[56] among others. The Finnish Bar Association provides a standard mediation service where a trained mediator, who is an impartial and independent member of the Finnish Bar registered with the Mediation Board, assists parties in peacefully resolving their disputes. 5.3.3. Collaborative law Collaborative law is a cooperative approach to resolving legal disputes, typically used in family law matters, where the parties and their lawyers work together to find mutually satisfactory solutions without going to court. The process involves the use of experts such as psychologists who serve as child development experts, and in some cases, divorce coaches, mental health professionals who help the parties in reaching a resolution.[57] In Finland, Collaborative Law is governed by the Collaborative Law Act, which outlines the rules and procedures for the process.[58] Family mediation in Finland aims to help separated or divorcing couples resolve conflicts related to child custody, visitation rights, and financial support in a peaceful and collaborative manner. The primary goal is to promote communication, cooperation, and co-parenting agreements that are in the best interests of the children involved. Family mediation in Finland seeks to reduce the emotional and financial costs of litigation, while empowering families to create sustainable solutions that work for everyone involved. Mediation can help families address sensitive issues, improve communication, and work towards a positive and respectful co-parenting relationship after separation. 6. Benefits of Resolving Family Disputes through an ADR Mechanism: It is confidential and devoid of publicity: as a result of the peculiarity of family relationships and family disputes, resolution of family disputes in most instances requires a very confidential mechanism. ADR is a settlement mechanism that offers confidentiality as a major attribute. This major attribute will encourage parties in family disputes to utilize it, as in most instances, they do not want their family issues to be public; It encourages party autonomy: another unique attribute of ADR is party autonomy. Parties are at liberty to decide how they want their disputes to be resolved. They can choose the venue for the disputes, the language, and the person who will help them resolve the dispute; It is a speedy means of dispute resolution: ADR affords parties a swift resolution of their disputes; It can help to foster communication between parties: the neutral third parties are trained facilitators who aim at helping parties to relate the cause of their disputes with minimal emotional outburst; Its process can be tailored towards the needs and concerns of the parties: party autonomy encourages party-based dispute resolution, so parties can have the resolution tailored towards a win-win situation. In that way, all the parties gain from the resolution, and the dispute is resolved amicably. 7. The Challenges of Using Alternative Dispute Resolution to Resolve Family Disputes in Nigeria Lack of rules: a potent question that arises for determination is the extent to which ADR is applicable in Nigeria. In order to make this determination, recourse must be had to the Nigerian legislation, Case Laws, and also reviews by scholars. ADR as a mechanism for resolving family disputes does not have enough legal backing in Nigeria. Whether through statutes or case laws. Lack of Awareness: In a country like Nigeria, it has become a settled practice that disputes must be resolved in court. Several people are not aware of the possibility of resolving their disputes out of court. Even when the options are presented, it seems implausible for them to do so. Hence, awareness of ADR is a great impediment to the use of ADR to resolve all kinds of disputes in Nigeria, including family disputes. Unenforceability and non-recognition of decisions emanating from some ADR mechanisms: one of the reasons parties to a dispute prefer to go to court is because of the belief that judgments of the courts are more enforceable than decisions reached amongst themselves. The fact that most ADR mechanisms safe for arbitration are not binding is an impediment to the utilization of ADR for resolving disputes, such as family disputes whose resolution would have a permanent effect on the status of a person. Uncooperative parties: Some parties are not aware of the possibility of resolving their disputes outside the courtroom. Hence, when the option to do so comes in, they refuse to participate. For them, it is either a settlement in court or nothing. These types of people make it difficult for ADR to be utilized in settling family disputes. This is because all ADR mechanisms are built on the fundamental principle of party autonomy. Parties must agree to resolve their disputes through ADR. Where a party is unwilling to utilize ADR in resolving a dispute, the other party cannot forcefully ensure participation. The tendency for ADR to be expensive: parties to ADR are saddled with the responsibility of paying the cost of whatever mechanism of ADR they have chosen to utilize. They have to provide the venue and pay the neutral third party that would help with the settlement of the disputes. Sometimes these costs can become unbearable for one or both of the parties to the dispute. For instance, a partner who has been abandoned and is already finding it difficult to feed may not be able to afford mediation as a mechanism to seek spousal maintenance. 8. Recommendations 8.1. Public awareness and sensitization campaigns The National Orientation Agency (NOA), the Nigerian Bar Association (NBA), and civil society organisations should initiate coordinated media efforts (radio, television, and social media) to educate the public about the benefits of ADR for resolving family-related disputes. Community outreach through traditional and religious institutions should also be employed. 8.2. Institutionalization of ADR training Legal practitioners, court officials, and social workers should undergo continuous professional development in family mediation and arbitration through statutory institutions like the Chartered Institute of Arbitrators (CIArb), Nigerian Institute of Chartered Arbitrators (NICArb), and legal education bodies. Certification and regulatory frameworks should be developed to ensure professionalism and accountability. 8.3. Enactment of a family ADR framework Nigeria should develop a standalone Family Mediation and Arbitration Act to govern non-litigation family dispute resolution processes. This would ensure procedural clarity and promote the enforceability of agreements arising from ADR processes in family law. 8.4. Amendment of the Matrimonial Causes Act (MCA) The MCA should be amended to explicitly permit the use of ADR mechanisms, particularly for spousal maintenance, child custody, visitation rights, and property settlement, before and during litigation. Mandatory mediation sessions (similar to MIAMs in the UK) should be introduced as a prerequisite to filing family disputes in court. 8.5. Legal aid for ADR ADR services should be included within the scope of legal aid for indigent parties. A government-funded mediation voucher scheme (as piloted in the UK) could be introduced to lower the cost barrier for vulnerable individuals, especially in matters of child custody and maintenance. Conclusion The application of ADR mechanisms in the resolution of disputes has long aided in the administration of the justice system. Some factions no longer regard ADR as an alternative but an appropriate resolution process since it provides the most veritable and flexible means of resolving disputes. Although its application is limited due to ADR being particularly unapplicable in the resolution of family disputes. several legislations limit the resolution of disputes arising under them to litigation. This limitation includes family disputes. The inevitability of disputes in every human relationship or interaction requires a corresponding development of the means through which these disputes can be resolved when they arise. Family disputes remain a type of dispute that ought to be settled timely manner to curb damages, destruction, and to breed peace and development. In view of this, there should be the establishment of Family courts to hear and determine matters relating to children which emanates under a marriage. The High Courts have also made efforts to develop court rules and procedures that will see to the efficient and effective resolution of family disputes. The role of the legislature cannot be underemphasised. They have helped and assisted in the enactment of laws that will assist in the resolution or guide in the determination of issues relating to family disputes. References Scientific literature: Adepoju, A. A. (2024). Dissolution of Marriage and the Choice of Law: Matters Arising. PPLRUNLAW Review, Vol. 3, no. 1. Available at: <https://runlawjournals.com/index.php/pplrunlaw/article/view/93> (Last access: 4 May 2025); Ajetumobi, A. (2017). Alternative Dispute Resolution and Arbitration in Nigeria in Nigeria, Law, Theory and Practice. Princeton & Associates Publishing Co. Ltd.; Alobo, E. E. (2021). Commercial Law and Practice. Princeton & Associate Publishing Co. Ltd.; Blake, S. Browne, J., Sime, S. (2021). The Jackson Alternative Dispute Resolution Handbook (3rd edition). Oxford University Press; Green, M. M. (1941). Land Tenure in Ibo Village in South Eastern Nigeria. Routledge; Malemi, E. (2010). The Nigerian Legal Method (1st edition). Princeton Publishing Company; Maurya, A. (2021). 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Moral Challenges of Marriage Institution in the Contemporary Igbo Christian Society. Nsukka Journal of Religion and Cultural Studies, 12(1); Wertheim, E. Negotiations and Resolving Conflicts: An Overview. College of Business Administration Northeastern University. Available at: <https://www.europarc.org/communication-skills/pdf/Negotiation%20Skills.pdf> (Last access: 01 May, 2025). Footnotes [1] Maurya, A. (2021). Alternative Dispute Resolution. Indian Journal of Law and Legal Research, 2(1), pp. 1, 2. [2] Matrimonial Causes Act (MCA). (1970). Cap 220, LFN 1990. [3] Ibid. Section 2(1). [4] Ware, S. J. (2001). Alternative Dispute Resolution. St. Paul, p. 5. [5] Nolan-Haley, J. M. (2008). Alternative Dispute Resolution in a Nutshell, St. Paul, p. 2. [6] Halsey v. Milton Keynes General NHS Trust. (2004). ECWQ IV 576. [7] Wertheim, E. Negotiations and Resolving Conflicts: An Overview. College of Business Administration Northeastern University. Available at: <https://www.europarc.org/communication-skills/pdf/Negotiation%20Skills.pdf> (Last access: 01 May, 2025). [8] The International Centre for Alternative Dispute Resolution. (2014). Alternative Dispute Resolution. Available at: <https://globalarbitrationreview.com/survey/the-guide-regional-arbitration/2015/article/international-centre-alternative-dispute-resolution-icadr> (Last access: 1 May, 2025). [9] Alobo, E. E. (2021). Commercial Law and Practice. Princeton & Associate Publishing Co. Ltd., p. 2. [10] Ajetumobi, A. (2017). Alternative Dispute Resolution and Arbitration in Nigeria in Nigeria, Law, Theory and Practice. Princeton & Associates Publishing Co. Ltd., p. 75. [11] Malemi, E. (2010). The Nigerian Legal Method (1st edition). Princeton Publishing Company. [12] Alobo, E. E. (2021). Commercial Law and Practice. Princeton & Associate Publishing Co. Ltd. [13] Blake, S. Browne, J., Sime, S. (2021). The Jackson Alternative Dispute Resolution Handbook (3rd edition). Oxford University Press. [14] Arbitration and Mediation Act. (2023). (AMA). Section 91. [15] Alobo, (n 9). [16] (1992). 3 NWLR (Pt 232). [17] Disinterested party. [18] (2005). LCN/1790 (CA). [19] See Green, M. M. (1941). Land Tenure in Ibo Village in South Eastern Nigeria. Routledge; see also, Nwogugu, E. I. (2014). Family Law in Nigeria (3rd edition). HEBN Publishers Plc. [20] Malek, C. (2013). International Conflict. Available at: <https://www.beyondintractability.org/coreknowledge/international-conflict> (Last access: 1 May, 2025). [21] Malek, C. (2013). Family Conflict. Available at: <https://www.beyondintractabiity.org/coreknowledge/family-conflict> (Last access: 1 May, 2025). [22] Aye, E. N. and others. (2016). Family Conflict and Managing Strategies: Implication for Understanding Emotion and Power Struggles. Global Journal of Psychology Research: New Trends and Issues, 6(3), p. 156. [23] Ugwu, N. V., Okoye, K. M., Agbo C. O. (2024). Moral Challenges of Marriage Institution in the Contemporary Igbo Christian Society. Nsukka Journal of Religion and Cultural Studies, 12(1), pp. 62, 63. [24] MCA. (1970). Section 114(1)(a). [25] Ibid., 114(1)(c). [26] (2013). LPELR-22370 (CA). [27] MCA. (1970). Section 56. [28] Adepoju, A. A. (2024). Dissolution of Marriage and the Choice of Law: Matters Arising. PPLRUNLAW Review, Vol. 3, no. 1. Available at: <https://runlawjournals.com/index.php/pplrunlaw/article/view/93> (Last access: 4 May 2025). [29] (1999). 14 NWLR (Pt 637) 148 at 159. [30] (2007). 7 NWLR (Pt 1032) 1. [31] Arbitration and Mediation Act. (2023). Section 67(1)(c). [32] Macroberts, F. (2024). Mediation: The Path to Resolving Child Disputes. Available at: <https://www.lexology.com/library/detail.aspx?g=67e5b694-7f61-4209-b005-8533d0b6eb5f> (Last access: 14 February, 2025). [33] Lexology. (2024). The UK Government has Rejected Mandatory Mediation for Family Disputes in England and Wales. Available at: <https://www.lexology.com/library/detail.aspx?g=abbcd3d1-20fb-40f7-9953-a24edf247563> (Last access: 4 May 2025). [34] Tyler, L. (2021). Alternative Dispute Resolution in Family Law. Weightmans. Available at: <https://www.weightmans.com/insights/alternative-dispute-resolution-in-family-law/> (Last access: 4 May 2025). [35] International Academy of Collaborative Professionals (IACP). (2023). What is collaborative practice? Available at: <https://www.collaborativepractice.com> (Last access: 14 June 2025). [36] Ibid. [37] Ibid. [38] Texas Family Law Code. Section 6.603(b) 148. [39] International Academy of Collaborative Professionals (IACP). (2023). What is collaborative practice? Available at: <https://www.collaborativepractice.com> (Last access: 14 June 2025). [40] Family Mediation Council. (2023). Code of Practice for Family Mediators. Available at: <https://www.familymediationcouncil.org.uk/code-of-practice/> (Last access: 1 June, 2025). [41] Ministry of Justice. (2023). Financial Dispute Resolution (FDR): A Guide for Parties S. Available at: <https://www.gov.uk/government/publications/financial-dispute-resolution-fdr> (Last access: 1 June, 2025). [42] Texas Statutes Civil Practice and Remedies Code. Available at: <https://statutes.capitol.texas.gov/Docs/CP/htm/CP.154.htm#:~:text=It%20is%20the%20policy%20of,settlement%20of%20pending%20litigation%20through> (Last access: 22 May 2025). [43] Cornell Law School. (2025). Alternative Dispute Resolution. Available at: <https://www.law.cornell.edu/wex/alternative_dispute_resolution#:~:text=For%20national%20arbitration%2C%20Title%209,numerous%20state%20laws%20on%20ADR> (Last access: 22 May, 2025). [44] Swartz, H. (2025). What is Alternative Dispute Resolution? Available at: <https://highswartz.com/services/adr-alternative-dispute-resolution/family-law-adr/> (Last access: 22 May, 2025). [45] Uniform Mediation Act. Available at: <https://www.uniformlaws.org/HigherLogic/System/DownloadDocumentFile.ashx?DocumentFileKey=9b33a118-841a-478c-e884-f3bf68b2b12c&forceDialog=0> (Last access: 22 May, 2025). [46] New Direction. (2021). Arbitration as an Alternative to Family Court. Available at: <https://newdirectionfamilylaw.com/blog/separation-divorce/arbitration-as-an-alternative-to-family-court/#:~:text=The%20North%20Carolina%20Family%20Law,%2C%20and%20child%20support.%E2%80%9D%20In> (Last access: 22 May, 2025). [47] Cornell Law School, (n 42). [48] Shaw, E. Family Law, Exploring Early Neutral Evaluation in Family Cases. Available at: <https://www.google.com/url?q=https://erinshawfamilylaw.ca/wp-content/uploads/Exploring-ENE-in-Family-Cases-Final-April 28.pdf&sa=U&sqi=2&ved=2ahUKEwi2p53Fw6OGAxWcWkEAHVyDD1YQFnoECB8QAQ&usg=AOvVaw3CY8lmlbKaRkD6EQPJSqKJ> (Last access: 22 November, 2025). [49] MacDonald, N. (2023). Alternative Dispute Resolution Options in Family Matters. Available at: <https://www.newtons.co.uk/news/alternative-dispute-resolution-options-in-family-matters/> (Last access: 23 May, 2025). [50] Cornell Law School. (2025). Collaborative Law. Available at: <https://www.google.com/url?q=https://erinshawfamilylaw.ca/wp-content/uploads/Exploring-ENE-in-Family-Cases-Final-April 28.pdf&sa=U&sqi=2&ved=2ahUKEwi2p53Fw6OGAxWcWkEAHVyDD1YQFnoECB8QAQ&usg=AOvVaw3CY8lmlbKaRkD6EQPJSqKJ> (Last access: 23 May, 2025). [51] Swartz, H. (2025). What is Alternative Dispute Resolution? Available at: <https://highswartz.com/services/adr-alternative-dispute-resolution/family-law-adr/> (Last access: 22 May, 2025). [52] Liakka, A. (2023). Child Custody Disputes in Finland: The Primacy of Mediation. Lawyermonthly. Available at: <https://www.lawyer-monthly.com/2023/09/child-custody-disputes-in-finland-the-primacy-of-mediation/> (Last access: 14 May, 2025). [53] Cupore. (2016). Availability of Alternative Dispute Resolution Mechanisms. Available at: <https://www.cupore.fi/images/tiedostot/pilottitutkimusraportit/pilotreport_ds10_availabilityofalternativedisputeresolutionmechanisms.pdf> (Last access: 19 May, 2025). [54] Salsa, P. (2021). IP Litigation and Alternative Dispute Resolution Options in Finland. Berggren. Available at: <https://www.berggren.eu/en/blog/ip-litigation-and-alternative-dispute-resolution-options-in-finland#amp_tf=From%20%251%24s&aoh=17162924200167&referrer=https%3A%2F%2Fwww.google.com&ampshare=https%3A%2F%2Fwww.berggren.eu%2Fen%2Fblog%2Fip-litigation-and-alternative-dispute-resolution-options-in-finland>([Last access: 19 May, 2025). [55] Cupore, (n 52). [56] Act on Mediation in Civil Matters and Confirmation of Settlements in General Courts. Available at: <https://www.finlex.fi/en/laki/kaannokset/2011/en20110394.pdf> (Last access: 20 May, 2025). [57] Hechtman, S. B. S. (2023). ADR in Family Law: When is it Suitable? Lawyermonthly. Available at: <https://www.lawyer-monthly.com/2023/07/adr-in-family-law-when-is-it-suitable/> (Last access: 20 May, 2025). [58] Lawzana. (2025). About Collaborative law in Finland. Available at: <https://lawzana.com/collaborative-law-lawyers/finland> (Last access: 20 May 2025).
Securing Electronic Data and Safeguarding Personal Privacy in the Digital Environment (Pursuant to the Provisions of Algerian Law No. 18-07 on the Protection of Personal Data)
In the context of rapid digital advancement, securing data has become a central concern for both individuals and institutions. Data security refers to a broad set of technical and organizational practices aimed at preventing unauthorized access, alteration, or destruction of information. Rather than relying solely on encryption or access control tools, effective data protection involves a multilayered approach that includes user awareness, preventive policy frameworks, and continuous monitoring. Modern challenges to data security are increasingly complex due to the exponential growth of digital information and the evolving nature of cyber threats. Attackers now exploit vulnerabilities using sophisticated techniques, often bypassing traditional defenses. This highlights the urgent need for proactive strategies that combine technological safeguards with human-centered practices such as employee training and ethical data handling. Furthermore, the legal dimension of data security has gained prominence, with many jurisdictions enforcing stricter regulations to protect individuals’ rights. Legal compliance—particularly with frameworks like the General Data Protection Regulation (GDPR)—is no longer optional but essential for maintaining organizational credibility and avoiding penalties. Ultimately, securing data in today’s interconnected world requires an ongoing commitment. It is not a fixed goal but a dynamic process that evolves with technological, legal, and social developments. Ensuring data security strengthens public trust, reinforces privacy principles, and lays a solid foundation for sustainable digital transformation. Keywords: Data, privacy, personal information, security, digital age, protection of personal data. Introduction Data and information constitute one of the most critical pillars of any company, often regarded as its most valuable assets. In the event of a breach, a company is bound to incur substantial losses, with its reputation inevitably damaged. Failure to address such breaches and their consequences effectively could result in the leakage of client data and information, ultimately leading to the company’s collapse. Therefore, protecting the IT infrastructure that houses this data becomes imperative. With the global escalation of cyber-attacks, the demand for security products and services has risen significantly, driven by persistent threats and the evolving nature of cyber-attack patterns. Data security encompasses the protective strategies implemented to shield data from unauthorized access, ensuring the confidentiality, integrity, and availability of databases. Optimal methodologies in data security include techniques such as data encryption, key management, data masking, data subsetting, and data redaction, alongside controls for privileged user access, auditing, and monitoring. Data, being a vital asset of any firm, must be safeguarded against unwanted access. Data breaches, unsuccessful audits, and non-adherence to regulatory mandates can lead to reputational harm, forfeiture of corporate ownership rights, compromised intellectual property, and penalties for regulatory non-compliance. Under the General Data Protection Regulation (GDPR) of the European Union, data breaches may incur fines of up to 4% of an organization’s global annual turnover, frequently resulting in significant financial losses. Financial information, medical records, intellectual property, and personally identifiable information (PII) are all considered sensitive data. Safeguarding this data is crucial to avert breaches and maintain regulatory compliance. Databases function as essential storage of sensitive information, rendering them a primary target for data thieves. Data intruders are often classified into two categories: external users and internal users. External users include various entities, such as individual hackers and cybercriminals, that seek to disrupt business operations or attain financial profit. They encompass organized crime syndicates and state-sponsored organizations aiming to perpetrate fraud or instigate disruptions on a national or global level. Internal users may encompass current or former workers, inquisitive persons, clients, or partners who misuse their position of trust to appropriate data or whose mistakes accidentally result in security breaches. Both external and internal users present threats to the security of personal data, financial information, trade secrets, and regulated data. The safeguarding of personal data has become increasingly crucial in the contemporary digital age. Due to swift technological improvements and the pervasive usage of the internet, individuals frequently disclose their personal information online. Personal data is collected, kept, and utilized by multiple entities across social media platforms and e-commerce websites, frequently without explicit consent or awareness. This engenders significant privacy issues and underscores the necessity for robust safeguards to protect personal information. In the contemporary digital era, data functions as the essential resource for enterprises, governments, and individuals. Data, encompassing sensitive consumer information and intellectual property, constitutes the foundation upon which institutions function and make pivotal decisions. Nonetheless, due to the increasing dependence on technology and a continuously changing threat environment, the significance of data security is paramount. It is no longer solely about safeguarding sensitive information; it has become a strategic necessity that can influence an organization’s reputation, financial viability, and potentially its survival. To address the increasing risks to the privacy and confidentiality of personal data in the digital realm, a number of international organizations have put forward and implemented policies. The Organization for Economic Co-operation and Development (OECD) has underlined the necessity of bolstering the right to privacy in order to facilitate the unrestricted flow of personal data. Similarly, the UN General Assembly established rules for the control of personal data files in its Resolution 45/95. The European Union established regulations to safeguard individuals against the processing of digital data. Numerous countries have also enacted legal provisions to safeguard personal data. Algeria, like other nations, has prioritized the establishment of a legal framework to protect individuals’ personal data. Study Problem This study seeks to analyze the procedures and techniques for safeguarding personal data under Algerian law by evaluating the principal aspects and clauses of Law No. 07/18, enacted on June 10, 2018, about safeguarding people when processing their personal information. This leads us to the following key question: How has the Algerian legislator secured digital data to protect individuals’ personal privacy? We have structured this article as follows: The conceptual framework for personal data The legal framework of the National Authority for the Protection of Personal Data; Procedures for processing personal data Methodology The research employs a doctrinal legal methodology, centered on the analysis of primary and secondary legal sources, including the Algerian Constitution, Law No. 18-07 on the protection of personal data, and related legislative acts. This approach is complemented by the examination of international instruments such as the GDPR, OECD guidelines, and UN resolutions, which provide a comparative framework for situating Algerian law within broader international standards. The study also incorporates a critical interpretative dimension by evaluating the institutional independence and effectiveness of the National Authority for the Protection of Personal Data. This combined approach ensures both descriptive and analytical insights, allowing the research to highlight legal strengths while identifying potential gaps in implementation. 1. The Conceptual Framework for Personal Data 1.1 Definition of personal data Maintaining a person’s right to privacy depends critically on the protection of their personal information. National legislatures have therefore quickly passed legislation to protect individuals while collecting personal data. The Algerian lawmaker who passed Law No. 18-07 on June 10, 2018, regarding the protection of natural persons in the use of personal data is one example. This law established the “National Authority for the Protection of Personal Data”, a crucial organization to protect the handling of personal data while respecting people’s right to privacy. Any information, regardless of type, that directly or indirectly relates to an identifiable individual is referred to as personal data. An identifying number or other components of a person’s physical, physiological, genetic, biometric, psychological, economic, cultural, or social identity can be used as the primary means of identification. Based on this definition, personal data is categorized into two main types: Direct Personal Data: This includes data of an explicit personal nature, such as names, surnames, postal and email addresses, genetic data, health records, criminal records, personal photographs, civil status, résumés, birth dates, places of residence, and workplaces. Indirectly identifiable information includes things like phone numbers, social security numbers, national identity card numbers, passwords, bank account numbers, fingerprints, genetic profiles, and biological and biometric data. 1.2 Enshrining the protection of personal data in Algerian law In compliance with Article 46 of the 2016 amended Algerian Constitution, the National Authority for the Protection of Personal Data was established by the Algerian parliament. This was aimed at striking a balance between the requirements of public security on the one hand and the rights and freedoms of individuals on the other.[1] This principle was reaffirmed in Article 47 of the 2020 Algerian Constitution.[2] The National Authority is an independent administrative body in charge of safeguarding personal information. It operates without administrative or hierarchical oversight and has legal individuality as well as financial and administrative autonomy.[3] The President of the Republic appoints the “National Authority”, an independent administrative body for the protection of personal data, as specified in Article 22 of Law No. 18-07. The Authority, which has its headquarters in Algiers, is financially and administratively independent in addition to having legal individuality. The budget is subject to the relevant financial control regulations and is part of the state budget. In the framework of processing personal data, the law created a number of measures to protect persons. The establishment of the National Authority for the Protection of Personal Data is among the most crucial mechanisms. The Authority is designated as an autonomous administrative entity, possessing legal identity, as well as financial and administrative autonomy. This study’s significance pertains to the regulations governing the Authority’s autonomy, which constitute a key feature distinguishing it from other traditional administrative bodies in the state. However, despite the formal aspects of independence reflected in various provisions, this independence is, in practice, relative and closer to a theoretical ideal than a tangible reality. 2. The Legislative Framework for the National Authority for the Protection of Personal Data 2.1 The legal framework for the protection of personal data A successful legislative framework for personal data protection necessitates the presence of procedures and resources for proper implementation and oversight to ensure the correct application of the law. Personal data protection cannot be achieved without establishing an administrative body responsible for enforcing the rules and provisions of the law. Article 23 of Law No. 18-07 stipulates the formation of this administrative body, consisting of 16 members, appointed by presidential decree. While the president is responsible for appointing the chairperson of the authority, the members are selected by their peers from within the councils to which they belong. The composition is as follows: Six advisors, including: Two current or former members of the Council of State, with a rank no less than that of an advisor; Two current or former members of the Court of Cassation, with a rank no less than that of an advisor; Two current or former members of the Court of Auditors, with a rank no less than that of an advisor; The general assembly of each distinct institution elects these members. 2.2 Composition of the National Authority for the Protection of Personal Data Regarding the nomination process for each member, the Algerian legislator specifies that the composition of the Authority includes: The President of the Republic nominated three people, including the president, from among specialists in the operations of the National Authority; The High Judicial Council selected three Supreme Court and Council of State judges.[4] The Authority is also empowered to seek assistance from any qualified individual for consultation and support in carrying out its duties. Additionally, it includes an executive secretariat and personnel employed to assist the executive body in fulfilling its responsibilities.[5] Referring to the composition of the National Authority, the Algerian legislator required that the Authority be supported by specialists. While the legislation allows for external consultation, it would have been preferable to explicitly include university professors and researchers specializing in rights, freedoms, and information technology. Their expertise, particularly in comparative legislation and studies conducted in this field, could greatly enhance the Authority’s effectiveness. The Algerian legislator specified the appointment of three experts in the Authority’s field of work, reflecting the multidisciplinary nature of its jurisdiction, which encompasses judicial, quasi-judicial, and administrative domains. Notably, in some legislations, bodies tasked with protecting personal data are granted extensive regulatory and executive powers, including criminal penalties for non-compliance with the Authority’s orders.[6],[7] Under the Algerian legal system, the President of the Republic is given the power to choose the Authority’s president. This centralization of appointment authority risks undermining the independence of the Authority in implementing its decisions. The legislator limited the President’s role to appointing, renewing membership, and terminating appointments through a presidential decree, requiring the Authority to submit an annual report to the Republic’s President.[8] The Authority is tasked with issuing opinions on the data processing activities referenced in Articles 31 and 32 of Law No. 18-07. Additionally, it develops and publishes guidelines, recommendations, and standards to facilitate compliance with personal data protection regulations. It is also responsible for conducting preliminary risk assessments related to data processing activities by data controllers and their contractors. It is primarily an ethical rather than a legal requirement for members of the National Authority for the Protection of Personal Data to take an oath. This reinforces their commitment to exercising their legal powers with impartiality, objectivity, and integrity, particularly regarding confidential information. Such an approach ensures that all members of the Authority remain independent and are not subject to any oversight or external control. Before beginning their duties, members of the National Authority are sworn in at the Algiers Court of Justice.[9] However, it is noteworthy that the process of election is absent in determining membership within the Authority. The Algerian legislator established a five-year term for membership, subject to renewal,[10] comprising people chosen for their legal or technical proficiency in personal data protection.[11] The concept of competence underpins membership in the National Authority for the Protection of Personal Data.[12] 3. Procedures for Processing Personal Data 3.1 Processing of personal data All grievances and inquiries submitted by data subjects, organizations, associations, or entities are addressed through the examination and verification of the complaint’s subject matter. The complainant is informed of the investigation’s progress and results within a designated timeframe. The Authority addresses requests for opinions from public bodies and courts as needed and offers consultations to persons and organizations engaged in or intending to engage in automated personal data processing. In accordance with Article 40 of the Code of Illegal Procedure, the Authority promptly informs the Public Prosecutor of any illegal activities or violations. Moreover, under Article 19 of Law No. 87-17, the Authority may issue a special decision assigning one or more of its members or the Secretary-General to carry out investigations or delegate its agents and departments to conduct verification procedures. When required, it may also obtain copies of all relevant documents and informational materials necessary for its mission. The Authority may create a list of data processing operations that are anticipated to pose major risks, which must undergo prior consultation as mandated by Article 90 of Law No. 87-17. Furthermore, Article 25, paragraph 1, of Law No. 18-07 mandates that the National Authority for the Protection of Personal Data ensure compliance with the legislation pertaining to personal data processing as specified in Law No. 18-07. It also ensures that the utilization of information and communication technology does not jeopardize individual rights, public liberties, or personal privacy. The Authority may offer recommendations and adopt individual or regulatory decisions as mandated by law in the execution of its responsibilities. Furthermore, the Authority presents an annual public report to the President of the Republic and the Prime Minister, outlining the fulfillment of its purpose. 3.2 Role of the data controller The National Authority for the Protection of Personal Data and the data controller must collaborate. The Authority’s operations are considered to be hampered by any interference with its operations, such as preventing on-site investigations, denying its members or agents access to necessary documents, giving information that conflicts with records that were already in existence at the time of the request, or failing to provide clear and straightforward information. Additionally, submitting incomplete or intentionally erroneous documents to obscure the truth constitutes an offense punishable under Article 61 of Law No. 18-07. Furthermore, the Authority’s operations are governed by a set of regulations. The president of the National Authority must respond expeditiously and guarantee the confidentiality of personal data accessible in the course of their responsibilities, even after their term ends. The president and members of the Authority are prohibited from holding any interests in organizations that operate within the domain of personal data processing. The Authority is responsible for the construction and maintenance of a National Register for the Protection of Personal Data. This register contains all statements made to the National Authority, authorizations granted, regulatory texts pertaining to public records, and other pertinent information. The register is accessible to individuals in accordance with legal and regulatory procedures. The National Authority for the Protection of Personal Data is authorized by Law No. 18-07 to allow data controllers to transfer personal data to other countries, provided that the Authority determines that the recipient country offers a sufficient degree of protection for people’s privacy, fundamental freedoms, and rights, along with appropriate security measures. Additionally, the Authority must confirm that neither public safety nor the state’s fundamental interests are jeopardized by the transfer. But there are exceptions to every rule. In certain circumstances, data controllers may transmit personal data to a nation that does not fit the above-listed requirements, including: The specific agreement of the person in question; Situations in which the transfer is essential to safeguard an individual’s life or uphold the public interest; The execution or conclusion of contracts; The execution of initiatives pertaining to international judicial collaboration; Identifying, diagnosing, or treating illnesses; Adherence to bilateral or multilateral agreements in which Algeria has participated.[13] Law No. 18-07 offers essential safeguards for national data that was once available to foreign entities operating in Algeria, including telecommunications firms, internet service providers, and embassies managing several visa applications daily. Without laws that forbid such actions, these apps frequently include private information that may be readily exported to other nations.[14] Monitoring the post-processing operations is one of the responsibilities given to the National Authority. The National Authority is tasked with a number of duties under Article 25 of Law No. 18-07, including consulting with people and organizations that process personal data or carrying out research or trials that could result in such processing. It also manages complaints, appeals, and objections pertaining to the processing of personal data, making sure that people are aware of the results.[15] The Authority instructs persons and data controllers regarding their rights and responsibilities. This includes the right to be informed in advance of the data controller’s identity and the reason for processing. Additionally, it guarantees that all pertinent information is conveyed, including the data’s recipient, the requirement to reply, the repercussions of non-compliance, and concerns about data transfers to foreign nations. In cases where information is used in an open network, individuals must be informed that their data may circulate in such networks without safety guarantees and could be subject to unauthorized access and use by third parties.[16] Ordering the required modifications to safeguard personal data and mandating the closure, withdrawal, or destruction of poorly processed personal data are among the Authority’s other responsibilities.[17] The Algerian legislator sought to provide criminal protection for personal data under the Electronic Commerce Law No. 18-05 through the regulation of “direct prospecting” as defined in Law No. 18-07.[18] This practice involves accessing personal data without the prior consent of the individual concerned, typically for purposes such as research, inspection, or prospecting for potential customers. This is achieved by compiling informational files containing personal data, including names, addresses, phone numbers, and consumption patterns or customer opinions obtained through electronic communications. Such data is used to categorize customers and generate targeted commercial offers specific to each category.[19] The Electronic Commerce Law empowers customers to manage their personal data by requiring prior notification before data processing, enabling them to consent to or decline such processing. Law No. 18-07 establishes an exception to the prerequisite of prior consent when processing is essential to fulfill a legitimate interest of the data controller or recipient, contingent upon the respect for the interests, rights, and fundamental freedoms of the individual involved.[20] Under these conditions, the right to object functions as a protective measure for consumers, balancing the individual’s right to privacy with the legitimate interests of the data controller. Regarding electronic certification, the Algerian legislator, under Law No. 15-04, regulated the activities of service providers by establishing authorities such as the National Authority for Electronic Certification, the Governmental Authority for Electronic Certification, and the Economic Authority for Electronic Certification. Articles 20(2)[21] and 27[22] of the Electronic Certification Law delegate the organization of the governmental and economic authorities to executive decrees. Conclusion In conclusion, securing digital data and safeguarding the privacy of personal information requires establishing boundaries that subject violators to criminal liability. This protection, while relative, necessitates heightened awareness and vigilance from individuals, particularly regarding these boundaries, to avoid infringing on others’ privacy. Legislators in Tunisia and Algeria have both sought to protect the private lives of natural and legal persons in a restricted but consistent manner. The establishment of organizations devoted to protecting personal data—which is directly related to individual privacy—has reflected this protection. Through the establishment of the National Authority for the Protection of Personal Data pursuant to Law No. 18-07, the Algerian legislators have formalized this protection, which gives the Authority certain responsibilities. These efforts are particularly significant in light of the rapid technological advancements and the proliferation of information technology. The Authority supports data controllers by helping them comply with the law and assists data subjects in exercising their rights as prescribed by legal provisions. The National Authority’s role in personal data processing highlights the importance of ensuring data security, which can be summarized as follows: Privacy Protection: Information security safeguards individuals’ and organizations’ data against unauthorized access, thereby preserving their privacy; Reputation Preservation: Failure to protect information can result in significant losses for companies and organizations, as well as damage to their reputation; Legal Compliance: Numerous regulations and laws mandate organizations to protect sensitive information and adhere to security requirements; Countering Cyber Threats: In a world facing escalating cyber threats, information security is essential for combating these risks and ensuring system stability. Key Findings: Data security is a dynamic and multifaceted challenge in our digital age. Organizations and individuals must invest in robust security measures and treat threats with seriousness. By educating users, employing advanced technologies, and complying with legal requirements, we can safeguard our information and ensure the sustainability of a progressive digital world; In response to technological problems, the Algerian legislator established the National Authority for the Protection of Personal Data to ensure the protection of personal information; Law No. 18-07 strengthens Algeria’s legislative framework to protect freedoms and rights. It mandates the prior and explicit consent of the data subject before processing their data, even if the processing is authorized. The right to revoke consent is always available to the data subject. This legal framework aims to curb the prevailing chaos in the field, particularly as individuals routinely provide their data to public entities, private organizations, telecommunications companies, or foreign embassies in Algeria without knowing its ultimate fate; A National Authority, known as the “National Authority”, was also established under the law, and its main responsibility is to supervise its enforcement. The Authority is responsible for granting permits and licenses to entities wishing to process personal data, conducting investigations, and imposing sanctions on violators of the law. References Scientific literature: Aidani, M. Rizk, Y. (2018). The protection of personal data in Algeria in light of Law No. 18-07. Ma’alam Journal of Legal and Political Studies, 5; Ashkar-Jabbour, M., Jabbour, M. (2018). Personal data and Arab laws: Security concerns and individual rights. Arab Center for Legal and Judicial Research; Bala, A. (2021). The national authority for the protection of personal data: Between independence and subordination. Algerian Journal of Human Security; Ghazal, N. (2019). The protection of natural persons in the field of personal data. Algerian Journal of Legal and Political Sciences; Khalawi, A., Ben Zitah, A. (2022). The independent administrative authority for the protection of personal data: A study in French and Algerian law. Algerian Journal of Legal and Political Sciences; Khalil, W. (2016). The role of direct marketing in achieving customer loyalty (Master’s thesis in Commercial Sciences, Specialization in Marketing Studies and Research, Faculty of Economic, Commercial, and Management Sciences, Ferhat Abbas University, Setif). Wataba, K. (2019). The legal nature of independent administrative authorities in Algeria and comparative systems. Journal of Legal and Political Sciences, April. Legal Acts/Official Documents: Official Gazette of the People’s Democratic Republic of Algeria. (2016, March 7). Issue No. 14. Official Gazette of the People’s Democratic Republic of Algeria. (2020, December 30). Issue No. 82. Ordinary Law No. 15-04. (2015, February 1). Establishing general rules regarding electronic signatures and certification. Official Gazette of the People’s Democratic Republic of Algeria, Art. 20(2). Ordinary Law No. 18-07. (2018, June 10). Concerning the protection of natural persons in the processing of personal data. Official Gazette of the People’s Democratic Republic of Algeria, No. 34, Art. 23(3). Footnotes [1] Official Gazette of the People’s Democratic Republic of Algeria. (2016, March 7). Issue No. 14. “The law protects the inviolability of a citizen’s private life and honor, which cannot be compromised. All private communications and correspondence are guaranteed to remain confidential. Only a well-reasoned order from the legal authority may violate these rights in any manner. Violations of this provision are punishable by law. A fundamental right protected by law is the protection of natural persons in the processing of personal data; infractions of this right can result in legal repercussions”. [2] Official Gazette of the People’s Democratic Republic of Algeria. (2020, December 30). Issue No. 82. “Every person is entitled to the protection of their personal honor and private life. Regardless of the format, everyone has the right to keep their private communications and correspondence private. Only a well-reasoned order from the judicial authority may violate the rights outlined in the first and second paragraphs. One fundamental right is the protection of individuals when personal data is processed. The law punishes any infringement of these rights”. [3] Ghazal, N. (2019). The protection of natural persons in the field of personal data. Algerian Journal of Legal and Political Sciences, p. 125. [4] Ordinary Law No. 18-07. (2018, June 10). Concerning the protection of natural persons in the processing of personal data. Official Gazette of the People’s Democratic Republic of Algeria, No. 34, Art. 23(3). [5] Ordinary Law No. 18-07. (2018, June 10). Concerning the protection of natural persons in the processing of personal data. Official Gazette of the People’s Democratic Republic of Algeria, No. 34, Art. 23. [6] This is consistent with the approach taken by the British legislator in Law No. 98 on the Protection of Personal Data in the digital environment, which established a personal data protection authority known as the Office of the Information Commissioner. [7] Khalawi, A., Ben Zitah, A. (2022). The independent administrative authority for the Protection of Personal Data: A study in French and Algerian law. Algerian Journal of Legal and Political Sciences, p. 125. [8] Bala, A. (2021). The national authority for the protection of personal data: Between independence and subordination. Algerian Journal of Human Security, p. 783. [9] Before assuming their duties, members of the National Authority take an oath before the Court of Algiers in the following form: “I swear by Almighty God to perform my duties as a member of the National Authority for the Protection of Personal Data with full independence, impartiality, honor, and integrity, and to maintain the confidentiality of deliberations”. [10] Ordinary Law No. 18-07. (2018, June 10). Concerning the protection of natural persons in the processing of personal data. Official Gazette of the People’s Democratic Republic of Algeria, No. 34, Art. 23(4). [11] Ordinary Law No. 18-07. (2018, June 10). Concerning the protection of natural persons in the processing of personal data. Official Gazette of the People’s Democratic Republic of Algeria, No. 34, Art. 23 (2). [12] Wataba, K. (2019). The legal nature of independent administrative authorities in Algeria and comparative systems. Journal of Legal and Political Sciences, April, p. 7. [13] Ashkar-Jabbour, M., Jabbour, M. (2018). Personal data and Arab laws: Security concerns and individual rights. Arab Center for Legal and Judicial Research, p. 81. [14] Ordinary Law No. 18-07. (2018, June 10). Concerning the protection of natural persons in the processing of personal data. Official Gazette of the People’s Democratic Republic of Algeria, No. 34, Art. 44. [15] Ordinary Law No. 18-07. (2018, June 10). Concerning the protection of natural persons in the processing of personal data. Official Gazette of the People’s Democratic Republic of Algeria, No. 34, Art. 25. [16] Aidani, M., Rizk, Y. (2018). The Protection of Personal Data in Algeria in light of Law No. 18-07. Ma’alam Journal of Legal and Political Studies, 5, p. 127. [17] Ordinary Law No. 18-07. (2018, June 10). Concerning the protection of natural persons in the processing of personal data (as amended and supplemented). Official Gazette of the People’s Democratic Republic of Algeria, No. 34, Art. 28 [18] Ibid., Article 3 defines “direct prospecting” as: “The sending of any message, regardless of its medium or nature, aimed at the direct or indirect promotion of goods or services or the reputation of a person who sells goods or provides services”. [19] Khalil, W. (2016). The role of direct marketing in achieving customer loyalty (Master’s thesis, Ferhat Abbas University, Setif, Faculty of Economic, Commercial, and Management Sciences). p. 8. [20] Ordinary Law No. 18-07. (2018, June 10). Concerning the protection of natural persons in the processing of personal data (as amended and supplemented). Official Gazette of the People’s Democratic Republic of Algeria, No. 34, Art. 7 (final paragraph). [21] Ordinary Law No. 15-04. (2015, February 1). Establishing general rules regarding electronic signatures and certification. Official Gazette of the People’s Democratic Republic of Algeria, Art. 20(2). [22] The nature, composition, organization, and functioning of this governmental authority for electronic certification shall be determined through regulation.
The Global Implications of South Africa’s Transformative Constitutionalism on Private Law Systems
This paper examines the global impact of South Africa’s model of transformative constitutionalism on private law systems. It explores how the South African Constitution’s mandate for systemic social change has reshaped the structure, function, and underlying assumptions of private law, both domestically and transnationally. Using a critical-comparative approach, the study analyses South African case law alongside developments in Germany, Colombia, and Canada. The central argument is that South Africa’s experience challenges the classical liberal view of private law as autonomous from public law values, revealing a constitutionalised private sphere in which rights, duties, and remedies are interpreted through the lens of substantive justice. The paper also cautions against naïve universalism: the transplantation of transformative constitutionalism is neither linear nor frictionless, as it interacts with diverse legal cultures, political economies, and institutional capacities. South Africa’s experience thus serves both as a template and a provocation—encouraging private law systems worldwide to rethink their normative commitments, while highlighting the complexities and contestations inherent in juridical transformation. Keywords: transformative constitutionalism, private law, South Africa, constitutionalisation, comparative law, substantive justice. Introduction The constitutional transition that South Africa underwent in 1994 is often hailed as one of the most ambitious legal and social projects of the modern era. At its core was not merely the replacement of one political regime with another, but a profound reimagination of the role of law itself as an instrument of societal transformation. Emerging from a history of systemic oppression, the South African Constitution of 1996 enshrines values such as dignity, equality, and freedom, not as abstract ideals but as actionable mandates to reconstruct the social and economic fabric of society. Central to this project is the concept of transformative constitutionalism, first articulated by Karl Klare, who described it as a long-term project of constitutional enactment, interpretation, and enforcement committed to transforming political and social institutions in a democratic, participatory, and egalitarian direction.[1] Key to this philosophy is a purposive and value-laden approach to legal interpretation, which insists that the Constitution is a dynamic instrument designed to guide society towards substantive justice. As Chief Justice Pius Langa explained, transformative constitutionalism requires a judiciary that is sensitive to context, history, and the material conditions of society, and willing to engage creatively with legal principles to achieve the Constitution’s normative goals.[2] The Constitution’s Bill of Rights (Chapter 2) extends horizontally, binding not only the state but also, where appropriate, private actors. This signals a decisive break with the classical liberal model of private law, where autonomy and formal equality were assumed to operate in isolation from constitutional values. While much scholarship has focused on the transformative impact of the Constitution on public law domains – such as administrative law, criminal justice, and human rights – the implications for private law systems are no less revolutionary. South African courts have progressively recognised that concepts such as good faith, fairness, and public policy must be interpreted in light of constitutional rights.[3] In doing so, private law is no longer a neutral sphere insulated from constitutional scrutiny, but an arena through which values of equality, dignity, and justice are actively realised. This paper investigates the global reverberations of South Africa’s transformative constitutionalism on private law systems. It critically examines how South Africa’s experience challenges the entrenched liberal distinction between public and private law and catalyses new debates about the constitutionalisation of private relations across jurisdictions. Landmark South African cases such as Barkhuizen v Napier and Daniels v Scribante are analysed against the backdrop of broader international debates. The central argument is that while South Africa’s model cannot be mechanically transplanted into foreign jurisdictions, it nevertheless provides a compelling normative vision for reimagining private law as an active participant in the pursuit of social justice. In a world grappling with rising inequality and systemic injustice, the South African experience compels a reconsideration of private law’s role in fostering democratic, inclusive societies. Methodology This study adopts a critical-comparative methodology, combining doctrinal analysis of South African case law with theoretical insights from global constitutionalism and private law theory. The doctrinal component focuses on landmark Constitutional Court decisions, including Barkhuizen v Napier, Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd, and Daniels v Scribante, which collectively illustrate the constitutionalisation of private law doctrines relating to contract, good faith, and property.[4] These cases are examined to demonstrate how constitutional imperatives such as dignity, equality, and fairness “radiate” into private relationships and reshape foundational legal concepts. The comparative dimension juxtaposes South Africa’s jurisprudential innovations with developments in jurisdictions grappling with the horizontal application of constitutional rights, notably Germany, Canada, and Colombia. Germany’s doctrine of Drittwirkung illustrates how constitutional rights influence private law through interpretive principles; Canada’s “Charter values” approach reflects a more cautious infusion of constitutional principles into private disputes; while Colombia demonstrates a transformative judicial role in reconfiguring private legal relations in the pursuit of social justice.[5] This comparative framework highlights both convergences and divergences, enabling a critical assessment of the global transposability of South Africa’s transformative model. Finally, the methodology is informed by critical legal theory, which challenges the supposed neutrality of private law and exposes its role in entrenching systemic inequalities.[6] By integrating doctrinal, comparative, and critical approaches, the study situates South Africa’s transformative constitutionalism within broader debates on global constitutionalism and the future of private law. 1. Conceptual Foundations of Transformative Constitutionalism The concept of transformative constitutionalism emerged as a central jurisprudential philosophy in South Africa’s post-apartheid era. First articulated by Karl Klare,[7] transformative constitutionalism is defined as a long-term project of constitutional enactment, interpretation, and enforcement committed to transforming a country’s political and social institutions, and its relations of power and hierarchy, in a democratic, participatory, and egalitarian direction. It moves beyond traditional understandings of constitutional supremacy as merely a framework for limiting state power; instead, it demands the active restructuring of society itself to redress historical injustices and entrenched inequalities.[8] Key features of transformative constitutionalism include the promotion of substantive - rather than merely formal - equality, the protection and realisation of socio-economic rights, and a purposive, value-laden approach to legal interpretation.[9] It insists that the Constitution is not a static text but a dynamic instrument intended to guide social evolution towards greater justice. As Chief Justice Pius Langa[10] explained, transformative constitutionalism requires a judiciary that is sensitive to context, history, and the material conditions of society, and willing to engage creatively with legal principles to achieve the Constitution’s normative goals. Central to South Africa’s transformative vision is the constitutional mandate to restructure both the public and private spheres. The Constitution, particularly through its Bill of Rights (Chapter 2), binds not only the state but also, where appropriate, private persons.[11] This horizontal application signals a fundamental shift: private law domains such as contract, property, and delicts must now be interpreted and developed in line with constitutional values. The historic insulation of the private sphere - where relationships between individuals were governed solely by classical doctrines of autonomy and formal equality - was thus deliberately dismantled to allow constitutional imperatives like dignity, freedom, and substantive equality to infuse private relations.[12] This reorientation of private law challenges the classical liberal model that has historically dominated Western legal thought. Under the liberal tradition, private law was conceived as a neutral framework within which free and rational individuals could autonomously pursue their interests, largely free from state interference.[13] Rights and duties were framed in formalist terms, prioritising certainty, predictability, and individualism. However, transformative constitutionalism exposes the myth of neutrality in private law, revealing how supposedly neutral doctrines often mask and perpetuate systemic power imbalances.[14] By compelling courts to interrogate the substantive fairness of private relations and to align private law rules with constitutional values, South Africa’s constitutional project disrupts long-standing assumptions about the autonomy of private law and its insulation from broader societal concerns. In sum, transformative constitutionalism represents both a theoretical and practical shift in how law is understood and deployed: it transforms private law from a mechanism of private ordering into a normative tool for achieving collective justice. This foundational shift forms the bedrock for South Africa’s influence on global debates about the constitutionalisation of private law, as explored in subsequent sections. 2. Transformative Constitutionalism in South African Private Law The influence of transformative constitutionalism is perhaps most vividly seen in the reshaping of South African private law. Through landmark decisions, South African courts have demonstrated that constitutional values are not confined to public law but must actively inform and restructure private legal relationships. This section examines three pivotal cases - Barkhuizen v Napier,[15] Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd,[16] and Daniels v Scribante[17] - which collectively illustrate the courts’ evolving approach to contractual freedom, good faith, and property rights within a transformative constitutional framework. 3. Barkhuizen v Napier: Balancing Contractual Freedom with Constitutional Fairness In Barkhuizen v Napier[18], the Constitutional Court addressed the enforceability of a time-limitation clause in an insurance contract. The Court recognised the importance of contractual freedom as a fundamental principle underpinning private law, rooted in individual autonomy and the right to self-determination.[19] However, it also insisted that this freedom is not absolute; all contractual terms must conform to public policy, which is now determined with reference to constitutional values, including fairness, reasonableness, and equality.[20] The Court introduced a two-stage inquiry: first, whether the clause itself is contrary to public policy; and second, whether enforcement of the clause in the particular circumstances would be unreasonable or unfair.[21] This nuanced balancing act demonstrates how transformative constitutionalism reshapes private law - contractual autonomy is respected but not at the expense of substantive justice.[22] 4. Good Faith and Constitutional Values in Contract Law The Constitutional Court further advanced transformative constitutionalism in Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd[23] at issue was whether the court should enforce an obligation to negotiate the renewal of a lease agreement in good faith. Although the majority refrained from definitively constitutionalising the doctrine of good faith, the judgment suggested that common law doctrines must be developed in line with constitutional values, particularly the commitment to fairness, dignity, and Ubuntu.[24] Justice Yacoob’s judgment emphasised that private law should not operate in a constitutional vacuum and that the duty to develop common law principles in line with Section 39(2) of the Constitution is both a power and an obligation.[25] The Court thus opened the door for a more robust incorporation of good faith as a constitutional value capable of reshaping contractual relationships.[26] This case signals a doctrinal shift away from rigid, formalistic interpretations of contracts towards a relational, justice-oriented approach, where the spirit of cooperation and fairness guides contractual enforcement.[27] 5. Daniels v Scribante: Property Rights Reinterpreted to Achieve Dignity and Equality In Daniels v Scribante,[28] the Constitutional Court confronted the tension between private property rights and the rights of occupiers to live with dignity. The applicant, a farmworker, sought to make improvements to her dwelling without the consent of the landowner, arguing that her constitutional right to adequate housing entitled her to do so. The Court held that the Extension of Security of Tenure Act (ESTA) must be interpreted in light of the Constitution’s commitment to dignity, equality, and housing rights.[29] The judgment recognised that the traditional understanding of property as an exclusive, dominion-based right had to yield to a more relational, socially embedded conception aligned with constitutional norms.[30] Chief Justice Mogoeng, writing for the majority, declared that property rights must be exercised consistently with the values of dignity and equality, and that ownership can no longer be conceived as an absolute entitlement divorced from social obligations.[31] This decision represents a profound constitutionalisation of property law, where historical hierarchies embedded in ownership structures are actively dismantled through purposive interpretation. These landmark decisions not only illustrate the judiciary’s commitment to infusing private law with constitutional values but also reflect a deeper normative shift toward relational conceptions of rights and duties. Central to this shift is the constitutional recognition of Ubuntu - a distinctly African philosophy of justice - which increasingly informs the development of private legal doctrines. A fuller engagement with Ubuntu reveals how it challenges liberal individualism and redefines private law’s foundational assumptions in line with South Africa’s transformative constitutional vision. 6. Ubuntu and the Constitutional Transformation of Private Law As South Africa’s transformative constitutionalism reconfigures the foundations of private law, Ubuntu emerges as a critical normative resource that offers an alternative to liberal individualism. By emphasizing relationality, human dignity, and communal responsibility, Ubuntu provides a uniquely African jurisprudential framework for interpreting and developing private legal doctrines in ways that advance the Constitution’s transformative aims. As South Africa’s transformative constitutionalism reconfigures the foundations of private law, Ubuntu emerges as a critical normative resource that offers an alternative to liberal individualism. 7. Key Doctrinal Shifts: Public Policy, Ubuntu, and Constitutional Values Collectively, these cases illustrate transformative constitutionalism’s radical impact on the doctrinal landscape of private law. First, the meaning of public policy has been constitutionalised: it now demands compliance with the Bill of Rights and broader constitutional values rather than merely reflecting prevailing social norms.[32] African philosophical notions emphasising interconnectedness, respect, and communal solidarity have been increasingly recognised as a normative guide within private law.[33] Ubuntu informs not only the duties of fairness and good faith in contractual relations but also challenges the adversarial individualism historically embedded in private legal doctrines. Third, the horizontal application of constitutional rights has cemented the idea that constitutional norms permeate all areas of law, requiring courts to develop and interpret private law in ways that advance the Constitution’s transformative project.[34] Thus, South African private law is no longer a neutral domain insulated from constitutional scrutiny; it is an active site for achieving societal transformation, embodying the values of equality, dignity, and social justice in everyday legal relations. 8. Comparative Analysis: Global Resonances and Divergences South Africa’s model of transformative constitutionalism has inspired and provoked comparative reflection in various jurisdictions. While its constitutionalisation of private law is distinctive in origin and scope, there are noteworthy resonances in other systems, particularly those that recognise the horizontal application of constitutional rights. This section undertakes a comparative analysis of three such jurisdictions - Germany, Canada, and Colombia, highlighting points of convergence with South Africa, while also critically engaging with the contextual factors that enable or inhibit the transformative use of constitutional norms in private law. 8.1 Germany: Horizontal effect (Drittwirkung) of fundamental rights Germany presents a compelling example of how constitutional rights can influence private law through the doctrine of Drittwirkung (third-party effect). Under German constitutional jurisprudence, the Basic Law (Grundgesetz) primarily binds state actors. However, the Federal Constitutional Court has developed both mittelbare Drittwirkung (indirect horizontal effect) and unmittelbare Drittwirkung (direct horizontal effect), enabling constitutional rights to shape private legal relationships.[35] In Lüth,[36] the Court famously held that all branches of the law - including civil law - must be interpreted in light of the values enshrined in the Basic Law, especially the dignity clause in Article 1. This interpretive principle mirrors South Africa’s Section 39(2) of the Constitution, which requires that “every court… must promote the spirit, purport and objects of the Bill of Rights” when developing the common law.[37] However, while German courts remain more restrained in directly invalidating private contracts or altering substantive private law norms, their indirect influence on legal interpretation closely resembles South Africa’s purposive approach to adjudication[38] The German model demonstrates how constitutional rights can seep into private relations through a systemic interpretive mandate, yet it remains more cautious in challenging the structural norms of private law than South Africa’s explicitly transformative project. 8.2 Canada: Charter values and private law - Dolphin Delivery and beyond Canada provides another instructive comparative example, albeit with a more limited horizontal application of constitutional rights. In Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd,[39] the Supreme Court of Canada held that the Canadian Charter of Rights and Freedoms does not apply directly to private litigation between non-state actors. However, it affirmed that Charter values - such as freedom of expression, equality, and dignity - may influence the development of the common law in disputes involving private parties.[40] Subsequent cases, including Hill v Church of Scientology of Toronto,[41] confirmed that courts must interpret private law in a manner consistent with the “values and principles” underlying the Charter, even if the Charter itself does not directly bind the parties.[42] This value-based influence is conceptually akin to the South African court’s use of constitutional values to shape doctrines of contract, delicts, and property law.[43] However, the Canadian model stops short of the transformative ambition characterising the South African Constitution. There is a continued reluctance in Canadian courts to fully reconfigure private law rules in pursuit of social justice, revealing a more restrained, incrementalist tradition.[44] 8.3 Colombia: Transformative constitutionalism and private relations Colombia offers perhaps the most striking example, outside South Africa, of the judicial application of transformative constitutionalism in private law. Following the adoption of the Colombian Constitution of 1991, which declared Colombia a “social state under the rule of law”, the Constitutional Court began using constitutional values to directly influence private legal relationships.[45] In decisions such as Sentencia T-406/92 and T-881/02,[46] the Colombian Constitutional Court recognised that private actors, particularly in asymmetrical relationships such as employment or tenancy, may be constitutionally obligated to respect the dignity and fundamental rights of weaker parties.[47] The Court has explicitly acknowledged the need to reinterpret private law in light of constitutional principles, particularly in socio-economic contexts where the formal equality of contracting parties is fictional. Colombia’s socio-political context - marked by extreme inequality, historical violence, and weak state capacity - has necessitated a robust judicial role in promoting social justice. Much like in South Africa, the Colombian judiciary sees itself as an active participant in societal transformation, empowered to reshape legal norms where the legislature or executive may be ineffective.[48] 9. Critical Comparison: Contextual Enablers and Inhibitors The global diffusion of constitutional norms into private law is neither uniform nor universally accepted. The divergences among Germany, Canada, and Colombia - despite shared constitutional commitments - illustrate the importance of contextual factors in shaping the trajectory of constitutional private law. Institutional design, legal tradition, political history, and judicial philosophy all influence how transformative constitutionalism is implemented.[49] For instance, Germany’s civil law tradition and strong private law formalism temper the direct influence of constitutional norms, while Canada’s common law heritage fosters doctrinal flexibility but retains a cautious posture due to the Charter’s limited horizontal reach. In contrast, South Africa and Colombia, both emerging from deeply unequal and violent pasts, have embraced a more interventionist judiciary capable of using constitutional values to reconfigure private legal relations. Yet, such a transformation is not without critique. Scholars warn that the over-judicialisation of social reform may strain judicial legitimacy or usurp legislative authority.[50] Others point out that, absent real changes in economic and institutional structures, judicial interventions in private law may yield symbolic rather than substantive transformation.[51] Nonetheless, South Africa’s transformative constitutionalism offers a bold, normatively compelling model for jurisdictions grappling with structural inequality and systemic exclusion. Its influence abroad - while adapted to local contexts - signals a growing recognition that private law cannot remain a bastion of formalism if constitutional democracies are to be truly inclusive and just. 10. Challenges and Limits of Global Influence While South Africa’s model of transformative constitutionalism has inspired significant global interest, its influence on private law systems across different jurisdictions is neither automatic nor unproblematic. Efforts to constitutionalise private legal relationships face several critical challenges, particularly concerning judicial legitimacy, the difficulties of legal transplantation, and tensions inherent between the demands for legal certainty and the imperatives of social transformation. 10.1 Risks of judicial overreach and democratic legitimacy concerns A persistent concern surrounding transformative constitutionalism is the risk of judicial overreach. When courts actively reconfigure private law in pursuit of constitutional goals, they may encroach upon domains traditionally reserved for democratic legislatures. This concern is particularly acute in pluralistic societies where competing conceptions of justice must be negotiated through inclusive political processes rather than imposed through judicial fiat.[52] Critics argue that expansive judicial interpretations may undermine democratic legitimacy by concentrating transformative decision-making power in unelected bodies.[53] In the South African context, while the judiciary’s role has been largely celebrated for advancing rights and correcting systemic injustices, scholars caution that the courts must remain attentive to the limits of their institutional competence and defer, where appropriate, to legislative processes better equipped to manage complex socio-economic reforms.[54] The legitimacy of transformative constitutionalism thus depends on maintaining a delicate balance between the courts’ duty to enforce constitutional rights and the need to respect democratic self-government. 10.2 The problem of legal transplantation: Socio-political and institutional contingencies The global appeal of South Africa’s transformative model also encounters the problem of legal transplantation - the challenges of transplanting legal doctrines or practices from one socio-political context to another. As Watson[55] famously argued, legal transplants are rarely straightforward because legal rules are deeply embedded in specific historical, cultural, and institutional settings. Attempting to impose South African-style constitutionalisation of private law onto other jurisdictions without accounting for local conditions risks superficial adoption without meaningful integration. For instance, while Germany’s constitutional jurisprudence reflects sophisticated mechanisms for integrating human rights into private law, its formalistic legal tradition and entrenched legal culture of Rechtsstaatlichkeit (the rule of law) impose inherent limits on transformative ambitions.[56] Similarly, Canadian courts, grounded in a tradition of judicial restraint and respect for parliamentary sovereignty, have been cautious in allowing Charter values to disrupt private law doctrines significantly.[57] Thus, transformative constitutionalism cannot be mechanically replicated across jurisdictions. Success depends on the institutional capacity of the judiciary, the political culture, the level of rights consciousness, and the historical context of inequality and exclusion that the legal system seeks to address.[58] Without these enabling conditions, efforts to constitutionalise private law risk ineffectiveness or unintended counterproductive consequences. 10.3 Tensions between legal certainty and transformative demands Finally, transformative constitutionalism inevitably generates tensions between the values of legal certainty and the demands of social transformation. Private law traditionally values predictability, consistency, and stability - features essential for enabling individuals and businesses to plan their affairs with confidence.[59] The introduction of broad constitutional values such as fairness, dignity, and Ubuntu into private law adjudication can introduce elements of indeterminacy and uncertainty, as courts may re-evaluate established doctrines in light of evolving social norms.[60] For instance, in Barkhuizen v Napier,[61] the Constitutional Court’s approach to assessing contractual clauses against constitutional values introduced a more flexible but less predictable standard based on fairness and public policy considerations. While such flexibility promotes substantive justice, it may also erode the clarity and reliability traditionally associated with private agreements.[62] This tension is not easily resolved. Striking an appropriate balance requires courts to develop nuanced, context-sensitive standards that remain faithful to constitutional values without sacrificing the coherence and internal logic of private law.[63] Failure to manage this balance risks alienating key sectors of society, undermining economic development, or fostering perceptions of judicial arbitrariness. 11. Expanding the Comparative Dimension: Resistance and Challenges to Constitutionalisation While South Africa’s transformative constitutionalism has found resonance in jurisdictions such as Germany, Canada, and Colombia, other legal systems have demonstrated significant resistance to the constitutionalisation of private law. For example, in the United States, despite a robust constitutional culture, private law remains largely insulated from constitutional norms. The entrenched commitment to classical liberalism and the sanctity of contract doctrine reinforces a formalist approach, where private law is treated as a separate domain governed primarily by market logic rather than constitutional values.[64] Courts have been reluctant to permit constitutional rights to intrude upon private relationships, maintaining a sharp distinction between state action and private conduct. Similarly, efforts within Europe to integrate human rights into private law through instruments like the Draft Common Frame of Reference (DCFR) reveal both promise and difficulty. While the DCFR explicitly acknowledges fundamental rights and aims to promote values such as human dignity and non-discrimination within European contract and property law, it struggles to reconcile these commitments with the internal demands of market integration, legal certainty, and doctrinal autonomy.[65] The tension between harmonizing private law for economic purposes and embedding substantive social values mirrors broader global challenges in reimagining private law as a vehicle for constitutional transformation. These examples highlight that the constitutionalisation of private law is neither inevitable nor uncontested. Instead, it depends on a complex interplay of historical, cultural, and institutional factors that shape each jurisdiction’s willingness and ability to infuse private legal relationships with public law values. 12. Ubuntu as a Distinctive Jurisprudential Resource in Transformative Private Law Ubuntu offers a distinctively African normative foundation that challenges the classical liberal assumptions underlying traditional private law. Centering relationality, community, and solidarity, Ubuntu reimagines justice not as the protection of atomistic individuals but as the promotion of harmonious social relationships.[66] In South African constitutional jurisprudence, Ubuntu has moved beyond cultural rhetoric to serve as a substantive constitutional value capable of reshaping private legal relations. Justice Mokgoro emphasizes Ubuntu’s role in advancing human dignity, equality, and restorative justice,[67] while Metz frames it as a coherent moral theory that prioritizes communal flourishing over adversarial individualism.[68] Judicial decisions increasingly reflect Ubuntu’s influence. In Everfresh Market Virginia (Pty) Ltd,[69] the Constitutional Court underscored that principles of good faith and fairness, deeply resonant with Ubuntu, must inform contract law development.[70] Likewise, in Daniels v Scribante,[71] the Court reinterpreted property rights to prioritize dignity and equality over exclusionary ownership models, aligning property law with Ubuntu’s relational ethic.[72] Thus, Ubuntu grounds a transformative reorientation of South African private law, embedding constitutional values into everyday legal relations and offering a jurisprudential model that foregrounds communal responsibility, social justice, and substantive equality. As South Africa’s transformative constitutionalism reconfigures the foundations of private law, Ubuntu emerges as a critical normative resource that offers an alternative to liberal individualism. By emphasising relationality, human dignity, and communal responsibility, Ubuntu provides a uniquely African jurisprudential framework for interpreting and developing private legal doctrines in ways that advance the Constitution’s transformative aims. 13. Empirical and Policy Recommendations While this paper has primarily offered a theoretical and comparative analysis, the practical success of transformative constitutionalism in private law also depends on targeted policy interventions and empirical engagement with the realities of legal practice. Several concrete recommendations emerge. First, there is a pressing need for legislative reform to consolidate and clarify the constitutional principles that have begun to reshape South African private law. In particular, the Common Law of Contract remains heavily rooted in classical liberal assumptions about freedom of contract and autonomy, despite judicial efforts to infuse it with constitutional values. Parliament, in collaboration with the South African Law Reform Commission, should consider initiating a comprehensive review of contract law to explicitly incorporate principles of fairness, good faith, and substantive equality. Codifying these constitutional commitments would provide greater clarity and consistency, particularly for lower courts and litigants lacking access to sophisticated legal resources. Second, empirical research is needed to assess how constitutional values are being applied in lower courts, particularly in Magistrates’ Courts, where most ordinary South Africans experience the legal system. Existing jurisprudence from the Constitutional Court and the Supreme Court of Appeal offers guidance at a high doctrinal level, but little is known about how, or whether, lower court judges interpret and apply constitutional norms in everyday private disputes involving tenancy, employment, small contracts, or property use. Empirical studies - including court file reviews, judicial interviews, and analysis of reported decisions could reveal whether transformative constitutionalism is genuinely penetrating the grassroots of the legal system or whether it remains largely aspirational. Third, legal education and judicial training programmes must be recalibrated to support the deepening of constitutional culture within private law. Universities and professional bodies should prioritize curricula that integrate constitutional analysis across all private law subjects, while judicial education programmes should equip magistrates and other judicial officers with the tools to engage meaningfully with constitutional values in their adjudication of private disputes. Ultimately, for transformative constitutionalism to realize its full potential within the domain of private law, reform efforts must move beyond high-level jurisprudence toward systemic changes in legislation, legal practice, education, and empirical understanding. Without such efforts, the constitutional promise risks remaining an elite project, distant from the everyday legal experiences of the majority of South Africans. Conclusion This paper has argued that South Africa’s transformative constitutionalism profoundly reshapes the relationship between constitutional rights and private law, offering both a catalyst for innovation and a cautionary template for global legal reform. Through a deliberate constitutional mandate, South African courts have sought not merely to protect individual rights in public law, but to infuse private legal relations with substantive values of dignity, equality, and freedom.[73] In doing so, South Africa challenges the classical liberal model that insulated private law from constitutional scrutiny, advancing a jurisprudential model where justice permeates all spheres of social life. Comparative analysis reveals that while South Africa’s approach resonates with developments in Germany’s doctrine of Drittwirkung, Canada’s infusion of Charter values into common law, and Colombia’s socio-economic rights adjudication, each jurisdiction’s experience reflects distinct institutional, cultural, and political contingencies.[74] The South African example thus acts as both inspiration and caution: it demonstrates the emancipatory potential of constitutionalising private law while simultaneously exposing risks of judicial overreach, legitimacy deficits, and tensions between transformation and legal certainty.[75] The broader implications of this study are profound. In an era where rising inequality, global constitutionalism, and demands for social justice increasingly challenge the traditional neutrality of private law, South Africa’s experience compels a rethinking of foundational assumptions. Private law systems worldwide must confront whether adherence to formalistic traditions can remain viable in the face of constitutional commitments to human dignity, equality, and social transformation.[76] However, successful adaptation requires sensitive attention to local contexts, institutional capacities, and the preservation of democratic legitimacy.[77] Ultimately, South Africa’s transformative constitutionalism invites jurists, scholars, and policymakers to envision private law not as a static repository of rules but as a dynamic tool for realising constitutional ideals. Its lessons caution against naïve transplantation, yet they affirm that in reimagining private legal relations, law can become an instrument of genuine, inclusive transformation - fulfilling the constitutional promise of a more just and humane society. References Scientific literature: Alexy, R. (2002). A theory of constitutional rights (Rivers, J., Trans.). Oxford University Press; Bilchitz, D. (2011). 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Routledge Watson, A. (1974). Legal transplants: An approach to comparative law. Scottish Academic Press. Woolman, S. (2007). The amazing, vanishing bill of rights. South African Journal on Human Rights, 23(1). Normative acts: Constitution of the Republic of South Africa. (1996). Case Law: Barkhuizen v Napier. (2007). (5) SA 323 (CC); Daniels v Scribante. (2017). (4) SA 341 (CC); Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd (2011); Hill v Church of Scientology of Toronto. (1995). 2 S.C.R. 1130; Lüth BVerfGE 7, 198, 1958; Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd. (1986). 2 S.C.R. 573. Footnotes [1] Klare, K. E. (1998). Legal culture and transformative constitutionalism. South African Journal on Human Rights, 14(1). [2] Langa, P. (2006). Transformative constitutionalism. Stellenbosch Law Review, 17(3). [3] See Barkhuizen v Napier 2007 (5) SA 323 (CC); Daniels v Scribante 2017 (4) SA 341 (CC). [4] Barkhuizen v Napier 2007 (5) SA 323 (CC); Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd 2011 (3) SA 1 (CC); Daniels v Scribante 2017 (4) SA 341 (CC). [5] See Lüth BVerfGE 7, 198 (1958); Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd [1986] 2 S.C.R. 573; Colombian Constitutional Court decisions T-406/92 and T-881/02. [6] Kennedy, D. (1976). Form and substance in private law adjudication. Harvard Law Review, 89; Klare, K. E. (1998). Legal culture and transformative constitutionalism. [7] Klare, K. E. (1998). Legal culture and transformative constitutionalism. South African Journal on Human Rights, 14(1), pp. 146–188. [8] Ibid; Langa, P. (2006). Transformative constitutionalism. Stellenbosch Law Review, 17(3), pp. 351–360. [9] Ibid. [10] Constitution of the Republic of South Africa. (1996). (Hereafter referred as the Constitution). [11] Ibid., Section 8(2). [12] Currie, I., De Waal, J. (2013). The Bill of Rights handbook (6th ed.), Juta. [13] Pistor, K. (2019). The code of capital: How the law creates wealth and inequality. Princeton University Press. [14] Klare, K. E. (1998). Legal culture and transformative constitutionalism. South African Journal on Human Rights, 14(1), pp. 146–188; Langa, P. (2006). Transformative constitutionalism. Stellenbosch Law Review, 17(3), pp. 351–360; Woolman, S. (2007). The amazing, vanishing bill of rights. South African Journal on Human Rights, 23(1), pp. 762–794. [15] Barkhuizen v Napier. (2007). (5) SA 323 (CC). [16] Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd (2011). [17] Daniels v Scribante. (2017). (4) SA 341 (CC) [18] Ibid. [19] Barkhuizen. (2007), para. 57. [20] Ibid., para. 29. [21] Ibid., para. 56. [22] Woolman, S. (2007). The amazing, vanishing bill of rights. South African Journal on Human Rights, 23(1), pp. 762–794. [23] Everfresh (2011), para. 71. [24] Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd (2011). [25] Ibid., para. 23; Constitution. (1996), s 39(2). [26] Bilchitz, D. (2011). Constitutionalism, the rule of law and the adjudication of private disputes: A view from South Africa. International Journal of Constitutional Law, 9(1), pp. 153–179. [27] Ibid. [28] Daniels v Scribante. (2017). (4) SA 341 (CC). (Daniels (2017), para. 37). [29] Ibid., Daniels. (2017), para. 37. [30] Fagan, A. (2010). Dignity and unfair discrimination: A value misplaced and a right misunderstood. South African Journal on Human Rights, 26(2), pp. 220–247. [31] Daniels. (2017), para. 47. [32] Barkhuizen. (2007), para. 29; Everfresh. (2011), para. 23. Second, the principle of Ubuntu - a distinctly. [33] Metz, T. (2011). Ubuntu as a moral theory and human rights in South Africa. African Human Rights Law Journal, 11(2), pp. 532–559. [34] Constitution. (1996), s 8(2); Woolman, S. (2007). The amazing, vanishing bill of rights. South African Journal on Human Rights, 23(1), pp. 762–794. [35] Currie, I. (2008). Balancing constitutional rights: The German and South African experience. Law, Democracy and Development, 12(2), pp. 1–22; Alexy, R. (2002). A theory of constitutional rights (Rivers, J., Trans.). Oxford University Press. [36] Lüth BVerfGE 7, 198, 1958. [37] The Constitution. [38] Woolman, S. (2007). The amazing, vanishing bill of rights. South African Journal on Human Rights, 23(1), pp. 762–794. [39] In Retail, Wholesale and Department Store Union, Local 580 v Dolphin Delivery Ltd. (1986). 2 S.C.R. 573. [40] Dolphin Delivery. (1986). [41] Hill v Church of Scientology of Toronto. (1995). 2 S.C.R. 1130. [42] Roach, K. (2001). The Supreme Court on trial: Judicial activism or democratic dialogue. Irwin Law. [43] Bilchitz, D. (2011). Constitutionalism, the rule of law and the adjudication of private disputes: A view from South Africa. International Journal of Constitutional Law, 9(1), pp. 153–179. [44] Gardbaum, S. (2003). The new commonwealth model of constitutionalism: Theory and practice. Cambridge University Press. [45] Uprimny, R. (2006). The enforcement of social rights by the Colombian Constitutional Court: Cases and debates. [46] Sentencia T-406/92 and T-881/02. [47] Uprimny, R. (2006). The enforcement of social rights by the Colombian Constitutional Court: Cases and debates. [48] In Gargarella, R., Domingo, P., Roux, T. (Eds.). Courts and social transformation in new democracies. Routledge, pp. 127–151. [49] Klare, K. E. (1998). Legal culture and transformative constitutionalism. South African Journal on Human Rights, 14(1), pp. 146–188. [50] Gardbaum, 2003; Woolman, S. (2007). The amazing, vanishing bill of rights. South African Journal on Human Rights, 23(1), pp. 762–794. [51] Pistor, K. (2019). The code of capital: How the law creates wealth and inequality. Princeton University Press. [52] Gardbaum, S. (2003). The New Commonwealth Model of Constitutionalism: Theory and Practice. Cambridge University Press, Cambridge. [53] Tushnet, M. (1999). Taking the Constitution away from the courts. Princeton University Press. [54] Woolman, S. (2007). The amazing, vanishing bill of rights. South African Journal on Human Rights, 23(1), pp. 762–794. [55] Watson, A. (1974). Legal transplants: An approach to comparative law. Scottish Academic Press. [56] Currie. (2008). [57] Uprimny, R. (2006). The enforcement of social rights by the Colombian Constitutional Court: Cases and debates. In Gargarella, R., Domingo, P., Roux, T. (Eds.), Courts and social transformation in new democracies, Routledge, pp. 127–151. [58] Ibid. [59] Luhmann, N. (2004). Law as a social system (Ziegert, K., Trans.). Oxford University Press. [60] Klare. (1998). [61] Barkhuizen. (2007). (5) SA 323 (CC). [62] Ibid., para. 57. [63] Bilchitz, D. (2011). Constitutionalism, the rule of law and the adjudication of private disputes: A view from South Africa. International Journal of Constitutional Law, 9(1), pp. 153–179. [64] Horwitz, M. J. (1977). The transformation of American law, 1780–1860. Harvard University Press, Cambridge, MA; Kennedy, D. (1976). Form and substance in private law adjudication. Harvard Law Review, 89, pp. 1685–1778. [65] Micklitz, H. W. (2011). Social justice and access justice in private law (EUI Working Paper Law No. 2011/02). European University Institute. [66] Mokgoro, Y. (1998). Ubuntu and the Law in South Africa. Buffalo Human Rights Law Review 4: 15–23. [67] Ibid. [68] Metz, T. (2011). Ubuntu as a Moral Theory and Human Rights in South Africa. African Human Rights Law Journal 11 (2): 532–559. [69] In Everfresh Market Virginia (Pty) Ltd v Shoprite Checkers (Pty) Ltd. (2011). [70] Ibid., para. 71. [71] Daniels v Scribante. (2017). (4) SA 341 (CC). [72] Ibid., para. 47. [73] Klare, K. E. (1998). Legal culture and transformative constitutionalism. South African Journal on Human Rights, 14(1), pp. 146–188. [74] Currie (2008); Roach (2001); Uprimny (2006). [75] Gardbaum (2003); Watson (1974). [76] Bilchitz, D. (2011). Constitutionalism, the rule of law and the adjudication of private disputes: A view from South Africa. International Journal of Constitutional Law, 9(1), pp. 153–179. [77] Woolman, S. (2007). The amazing, vanishing bill of rights. South African Journal on Human Rights, 23(1), pp. 762–794.
Economic Liberty in Digital Market and Digital Competition Legislation: Indian Context
The rise of extraordinary digital platforms raised issues of monopolistic behaviours, market concentration, and digital ecosystem power balance, which complicated economic liberty protection in the digital age by compromising economic freedom, such as fair competition, innovation, and customer care. This paper focuses on the Digital Competition Bill from India 2024, a crucial piece of legislation that attempts to lure the digital market monopolies from threats and culminate in a model of economic liberty in a digital economy. The bill aims to regulate “gatekeeper” platforms, those huge digital companies that lead access to markets and services across the Internet, against a number of anti-competitive practices, including self-preferencing, exploitation of data, and restrictive business terms brought into the picture for the benefit of another party. Such an act of practice mostly cuts off the competition, disallows minimum market access for small entities, and hampers the overall consumer experience. The Digital Competition Bill, therefore, seeks to create a level regulatory field for large and small representatives in the marketplace so that innovation and abuse of access to digital opportunities are promoted. The paper will also examine in detail how this particular law on digital competition, the Digital Competition Bill, mentioned above, helps create a conducive digital market environment to realize economic liberty for companies, small and big. This study argues that a Digital Competition Bill can change the country’s approach to regulating digital market competition, provide an adequate framework for fostering economic liberty in digital markets. Keywords: Competition law, economic liberty, digital market, digital competition law, free market Introduction Economic freedom is one of the basic pillars of democratic capitalism and expresses the principles of free markets, whereby individuals and businesses are unhindered in their economic pursuits without excessive government interference.[1] Economic liberty rests on the belief that people are allowed to pursue their own interest in the marketplace, which will, in turn, create competition that gives rise to desirable outcomes starting from innovation, efficiency down to the satisfaction of consumers.[2] Traditionally, it has been understood that economic liberty applies to national economies, where businesses are seen as standing in competition with each other in relatively transparent and open markets and with minimum government intervention.[3] However, as world economies rose, digital-age innovations thoroughly rearranged the commercial architecture. On the one hand, the new digital platforms led by Amazon, Google, Facebook, and Apple etc. have thrown opportunity after opportunity into the fray. The alternative is that these companies have changed the landscape of buyers and sellers’ interaction with markets; they have practically ruled a few sectors of the global economy by exploiting massive amounts of data and controlling crucial infrastructure locations.[4] Accordingly, this has complicated the understanding of the economic liberty paradigm. How far is the economic liberty visa when a handful of tech giants dominate so much of the marketplace? How far do these platforms balance the scales against economic freedom for smaller entities and consumers alike?[5] In India, a rapidly digitizing economy, such questions assume acute proportions. In relatively recent times, India has witnessed a technological revolution whereby millions of people came online, and digital platforms have formed a block of everyday life.[6] With the acknowledgement of heightened concentrations of power in the hands of a few dominant players in the digital economy, the Government is proposing the introduction of new regulatory measures. The Digital Competition Bill of 2024, which aims at addressing the dominance of “gatekeeper” platforms, constitutes a major legislative step intended to secure economic liberty in the digital marketplace.[7] The bill aims to create a competitive and transparent digital marketplace by regulating the behavior of dominant digital platforms so that they do not impede competition, decrease consumer choice, or misuse consumer data.[8] This paper discusses economic liberty and digital competition law in the Indian context, thus enabling such regulatory frameworks to provide equilibrium between innovation and free and competitive market environments. The main argument revolves around the idea that digital competition laws, such as the Digital Competition Bill, are key to curbing monopolistic behavior while also having the potential to further economic liberty by ensuring that smaller businesses and consumers are not overly restricted by the maximum market operations possible from big tech monopolies.[9] Methodology This study employs a doctrinal and comparative legal research approach. The doctrinal method is applied through an analysis of the Digital Competition Bill 2024, together with official reports of the Ministry of Corporate Affairs, the Competition Commission of India, and documents of international organizations such as UNCTAD and ICRIER. These sources provide the normative basis for assessing how the proposed legislation addresses issues of economic liberty in digital markets. The comparative legal method is used to contextualize India’s approach against major international models, including the United States’ antitrust practice, the European Union’s regulatory framework (e.g., the GDPR), and China’s state-controlled regulatory model. Such cross-jurisdictional analysis highlights both the strengths and the limitations of India’s evolving digital competition law. The theoretical foundation of the research draws upon classical and modern doctrines of economic freedom, including the works of Berlin, Hayek, Friedman, and Rawls. These perspectives provide an interpretive framework for evaluating how the Digital Competition Bill 2024 redefines economic liberty within the rapidly expanding Indian digital economy. 1. Notion of Liberty: A Conceptual Framework A classical concept that denotes the absence of external restrictions on the action of an individual. It has many philosophical definitions, two of which are negative liberty and positive liberty, and both of these principles have different views on the economy.[10] As stated by Isaiah Berlin, ‘negative liberty’ indicates freedom from external interference, particularly from the government. In terms of economics, this is that laissez-faire capitalism, wherein individuals and businesses act in a sort of free market with minimal regulation from the state, is to be expected.[11] With the advent of electronic markets, however, the assertions look twisted because such corporative monopolies could frequently exercise just as much repressive power as governments.[12] In ‘positive liberty’, on the other hand, the ability to act or act independently in any aspect of decision-making is what an economically independent person should enjoy. By extension, it indicates that institutional and protective frameworks are thus required to permit individuals the chance to be meaningfully free and to participate in economic activities rather than forging ahead under the force of a monopolistic economy or under predatory market conditions.[13] Thus, understanding economic freedom in digital markets will mean different things to these two perspectives. Whereas unrestricted markets confer freedom to innovate to entrepreneurs, excessive concentration on the part of corporations paradoxically reduces the economic liberty of individuals by limiting their choices or market entry opportunities. Well-designed competition legislation can promote positive economic liberty, though, in that it assures fair market access to all actors.[14] Unique to the digital economy are many of the challenges that affect economic liberty, but which were absent in the previous market form. One major challenge is platform monopolization, where companies, by definition, sell direct to consumers but, in many cases, use barriers to entry to limit competition from smaller players in the industry.[15] Then there is algorithmic bias and market manipulation, much of which is created by the data generated by artificial intelligence-trained algorithms, as it may augment the market competitiveness of certain businesses at the expense of other businesses, thus undermining fairness.[16] Further, at the heart of economic liberty in digital market discourse are concerns over data privacy. Information about consumers has become a commodity that, in many cases, major corporations abuse their privilege and extort against individual privacy rights, which undermines the freedoms of individuals in a digital space.[17] Countries have different experiences and approaches to regulating digital competition. The United States, for example, focuses on antitrust laws, yet tends to be lenient toward tech monopolies by allowing large firms to acquire monopolistic power without significant interventions. The European Union is much stricter with regulations; for example, it has the General Data Protection Regulation (GDPR), which mainly focuses on consumer rights and data protection while at the same time limiting the power of tech giants.[18] Much of China’s position on digital market regulation can be seen as balancing two opposite terms: government versus economic regulation. While the Chinese government plows a posture toward intervention in regulating digital platforms, it also seeks economic growth and innovation, albeit through a relatively controlled approach.[19] Each of these regulations represents a tiny aspect of the much broader dilemma of how to preserve economic liberty while ensuring strong, competitive, fair, and accessible digital markets. 2. Economic Liberty in the Digital Market Economic liberty and competition are understood by many as the right of free individuals within a market and free-moving businesses to sell their merchandise. But they have increasingly come under threat in a digital age. Till now, economic liberty has been given as much weight in granting businesses the freedom to innovate and compete under conditions of their choice dictated by supply and demand, which is the core of the market.[20] Digital platforms are altering this paradigm, that trade, consumer behavior, and market affiliation are way beyond what was possible from their early beginnings due to extreme influence. Fundamentally, open competition forms a vital part of economic freedom. In a traditional environment, competition presses prices down, provides choice in product lines, and stimulates entrepreneurs to act differently to differentiate themselves. This mechanism supports capitalist economies wherein resources are consensually directed toward their efficient use by that invisible hand.[21] The digital economy, in contrast, on the opposite end, tends to pervert this idea by concentrating power on huge platforms like Amazon, Google, or Meta. These companies have now emerged as the gatekeepers to the digital marketplaces, search engines, and social media ecosystems, all essential arteries for modern economic life.[22] They can nonchalantly decide which digital entrants will live or die. They influence price structures, gate consumers, and control the flow of information.[23] While this level of control may enhance efficiencies, it puts up colossal hurdles for small businesses that do not possess corresponding resources or technical expertise. Other terms that the platforms impose are exploitative, for instance, exorbitant commission fees on goods sold via Amazon or inflated ad costs charged on platforms like Google and Meta-which correlates to the unfair competition in the marketplace.[24] One particularly troubling dynamic relates to algorithms whereby decisions through which market outcomes are affected are apparently neutral. In actual practice, algorithms often embed systemic biases that advantage the platform’s own products or services effectively, thereby undermining fair competition.[25] For example, Amazon’s algorithm might unconsciously prefer Amazon-branded products over third-party sellers’ products that are better or cheaper. This self-preferencing reduces consumer choice, deepens market power, and stands in direct opposition to the concept of economic liberty. Such opaqueness raises great ethical and regulatory issues. Most consumers remain blissfully ignorant of the fact that their digital interactions are being engineered towards certain ends, reducing transparency and denying the possibility of informed decision-making.[26] The situation is especially acute regarding this question in India. Rapid digitization has taken place in India, but platforms have rendered many SMEs worse off. Small and medium enterprises are compelled to accept terms that restrict their operations to be able to access marketplaces like Amazon or Flipkart; failing to do so would mean being denied access to major advertising platforms such as Facebook and Instagram. The extent to which this concentration of power restricts competition hampers the development of the truly inclusive digital economy within India. A large number of entrepreneurs and start-ups lack the voice and influence to participate in digital marketplaces on an equal footing. This imbalance is further reinforced by technologies that aid in the absence of infrastructure, the lack of access to data that directly inhibits local companies’ efficient functioning, and the economic power to operate an advanced business. In order to correct these disparities, in 2024, the Digital Competition Bill in India was passed. It affords a robust regulatory framework to deal with the monopolistic behavior of Systemically Significant Digital Enterprises. The Bill aims to create an enabling environment where businesses, big and small, will have equally fair opportunities to grow and compete in the digital marketplace.[27] Key provisions of the Bill speak directly to the economic liberty concerns just mentioned, such as preventing self-preferencing, exclusive tying advantages, and access on discriminatory terms, thereby protecting small businesses against being squeezed out. Additionally, it imposes transparency requirements providing for the disclosure of algorithms and decision-making criteria affecting market exposure. This allows for a greater level playing field upon which SMEs can make rational decisions and compete fairly. Further seeks stakeholder consultation, thereby giving SMEs and start-ups a voice in the regulation of digital markets. This participative approach reflects, indeed, the spirit of inclusive economic liberty, bringing forth the different demands of the vast entrepreneurial landscape in India. Very importantly, the Digital Competition Bill will also encourage innovation by preventing anti-competitive mergers and acquisitions that may suppress emerging businesses. The bill further aims to prevent any kill zone effect where large firms acquire the start-ups to neutralize future competition by imposing an advance notice regime and pre-merger review of acquisitions by SSDEs.[28] The implications are that the Digital Competition Bill is a necessary evolution for India’s economic regulation framework. It redefines economic liberty in the digital age as more than just state non-interference; it is about algorithmic transparency and equally fair access that protects against digital monopolies. The Bill, thus, creates the foundation for a more inclusive, vibrant, and just digital economy in India. 3. The Role of Digital Competition Law in Promoting Economic Liberty Market contestability measures such as India’s Digital Competition Bill of 2024 seek to promote fairness in the market, given that the same measures challenge the essence of economic liberty. The very existence of digital platforms often creates discrimination among the constituents nurtured in their environment, where power becomes concentrated in the hands of a select few dominant players. Such concentration raises legitimate fears of monopolistic tendencies, barriers to market entry for smaller enterprises, and exploitation of consumers. The regulation of such dominant operators would restore economic liberty as constituting the core of competition, fair market access, and capping unfair business practices.[29] The Digital Competition Bill focuses primarily on “gatekeeping” digital platform companies that determine market access and marketplace intermediation between businesses and consumers. It highlights certain conduct of these platforms, including self-preferencing, data appropriation, and predatory pricing behavior, primarily responsible for disquiet in the minds of businesses and consumers. Such gatekeepers as Amazon, Google, and Facebook heavily influence the workings of digital markets. They set the rules of engagement for countless businesses that depend on their platforms for visibility, sales, and interaction with consumers.[30] India’s digital economy is flourishing, with billions of active internet users and a proliferation of e-commerce businesses. It is the ideal ecosystem for new digital platforms to flourish.[31] Conversely, this also implies a challenging ground for small businesses that cannot match such big players. For a good number of small businesses, platforms like Amazon or Flipkart become a wider base of consumers, quantifying these terms for larger commissions, which in turn become extractive and foreign to enlarge their earnings and maneuverability in the market. And, not to mention, this control of the platforms as ‘gatekeepers’ might bury them deep in search result pages or actually eliminate them for certain lucrative opportunities. Thus, during the year 2024, the Digital Competition Bill emerged as a regulatory answer to tackle the problems cited above. By assuring that the competitive integrity of the digital marketplace is preserved, it addresses a range of issues through transparency requirements, curbing anti-competitive behaviors, and safeguarding small businesses from any disadvantages. For example, the Bill mandates that gatekeepers disclose the criteria upon which they base product or service rankings, which transparency will help businesses understand how to compete for consumer attention and take steps to minimize discrimination risk and maximize chances for success.[32] It also defines regulations for fair use of data that the platforms must uphold. Under current affairs, the powerful platforms enjoy fencing off and collecting data in huge volumes of business and user data for the improvement of their own services, turning the information into assets in competition with others, and consequently profiting from their products.[33] For example, Amazon is a platform that uses the above data to promote its items over the goods sold by third-party sellers, thus tilting the field. The Digital Competition Bill will regulate such practices, establishing regulations for the use of business data with a focus on transparency of data sharing and fairness.[34] Thus, the Bill upholds the economic liberty of small players in the market against being wiped off under the competition barriers exerted by the mighty. The measure shall also build a level playing field against the conduct of the dominant firms in the market, to foster a competitive environment conducive to small business resorts. With this consequence, the Digital Competition Bill assures the liberty of corporate players alongside those of consumers for the preservation of competition as a functional efficiency in promoting fairness and innovation in the digital economy. Moreover, the Bill addresses pressing concerns regarding platform transparency and the requirement for digital platforms to disclose their ranking and promotion of products. The larger implications of this transparency will be that smaller businesses will be able to maneuver within the pale of the digital marketplace and come up with strategies to counter larger, more established competitors. Being able to understand ranking algorithms will allow small businesses to set up their practices and adapt to fast-moving market dynamics.[35] Thus, with the above provisions, the need for such rules in the Indian context arises as digital businesses will continue to grow in the country and remain under the heavy influence of global giants like Google and Amazon. The enforcement of these laws will propel India to secure those small businesses do not lose out on digital opportunities, securing the economic liberty of every participant in the market, for such an emergence of forward players. The Digital Competition Bill not only looks to adopt regulation but also toward the establishment of an ecosystem conducive to fostering entrepreneurship, deterring anti-competitive conduct, and ensuring a fair chance of success for all participating market players, irrespective of size.[36] Legitimate commercial activity of this nature would go further toward preserving the integrity of India’s entrepreneurial landscape, where enterprises both big and small can all thrive and actively contribute to the growth of the digital economy. Therefore, the Digital Competition Bill is a watershed moment in securing the economic liberty of all players in the digital marketplace from being a mere theoretical concept. 4. Implications of Economic Liberty Innovation, alongside consumer welfare, presents a broader impact that emanates from competition laws, with monopolistic behavior and fair competition always shielding digital competition law. If a competition law really intends to rigidly establish a level playing ground where it will recreate just as well the fertile grounds for innovation, then one of the harshest conditions that must exist will be competitive environments that constantly compel companies to innovate as a means of differentiation and improve newer and better products and services for consumers.[37] Provided that no dominant firm threatens to outdo them, they may invest in innovative forms or technologies or construct new business models to encourage innovation because they are willing to take that risk.[38] The Digital Competition Bill is particularly important for digital markets because it tends to enable multiple businesses to enter the market. The rules are on the conduct of firms within market space, while other smaller competitors are allowed to develop and launch new offerings for the betterment of consumer welfare. When the Bill restricts big companies from monopolizing segments of consumer interests, welfare is guaranteed, and competition dynamism is retained.[39] Competitive markets yield benefits like increased variety, lower prices, and higher quality.[40] However, just as much through the Digital Competition Bill, regulation must show a flexible balance while encouraging economic liberty and consumer welfare. A regime without balance, through its overly regulatory measures of impeding innovation, will only limit those platforms and companies that have been the engines of the digital age development.[41] The burden on legislators, then, becomes how to frame a regulation that will deter monopoly practice without hindrance to the aesthetic development of such digital platforms, creating huge value for consumerism and businesses. For instance, the Digital Competition Bill has to make that limitation on self-preference and data mining such that it does not become a disincentive to investments in technologies that transform digital ecosystems.[42] This means that in prohibiting blanket prohibitions, a nuanced standard will have to be put in place that distinguishes harmful from benign practices. This balance is all the more pressing for the Indian context. India’s 63 million-plus MSMEs are now transitioning to digital operations, and a regulation that is too rigid may curtail their growth or deter foreign direct investment. Regulation must be fit for the local business environment, tailored to apply different compliance obligations according to size and systemic impact.[43] The obligations imposed on a digital vendor at home would not be the same as those imposed on Amazon. Besides, the Bill should recognize and reward pro-competitive behaviors such as demonstrating interoperability among platforms, promoting open-source technologies, and mandating transparency in algorithms. Such provisions would encourage innovation but would never breed dependency or monopolistic control. Public-private partnerships in digital infrastructure would also promote access to SMEs located in less than served or remote areas. It will finally condense into a well-balanced application of the Digital Competition Bill towards fostering an inclusive and dynamic digital ecosystem. It would thus protect consumer liberties and stimulate innovation - all fundamental pillars that strengthen and further nourish genuine economic freedom in the 21st Indian digital economy. Conclusion The law that is today - the Digital Competition Bill, 2024-is set to amalgamate the economic and free in digital markets of India. In India, this groundbreaking piece of legislation heralds an entirely new epoch in the country’s benign evolution in regulation-where the country now enters the world’s forefront towards realizing a more equitable and inclusive digital economy. This Bill addresses the core gaps in the existing antitrust laws; therefore, it acts as a crucial tool for promoting competitive parity in the digital space, dismantling monopolistic structures, and upholding principles of economic liberty and democratic access within the digital sphere. Most importantly, the Bill is the structural transformation of digital markets by introducing measures towards transparency, the end of exploitative practices, and, most importantly, fair participation by all players. It specifically mentions gatekeeper platforms-those institutions in the digital ecosystem that hold disproportionate power-to prevent them from these practices, like preference to their products, unfair use of user data, and constraining terms on business users. Such measures, which in most need apply in India’s rapidly burgeoning e-commerce and digital services environment, mark a decisive step towards the empowerment of start-ups, MSEs, as well as any individual entrepreneur, for they will have a fair chance to compete and innovate on their merit. Above all, it addresses the very future, not only present inequities. Nowhere in history has there been more serious consideration of what unchecked dominion by a few could mean for all valuable markets when digital infrastructures find themselves, regardless of usage, becoming the essential backbone of commerce, communication, and services. This legislation fortifies India’s commitment to shaping digital market competition among data monopolies, algorithmic discrimination, and network effects, which are silent to prevent new entrants, toward inclusive and accessible as well as long-term benefits of economic growth. The proactive nature of this regulatory position typifies the government’s way forward in enhancing and promoting economic liberty while building a resilient digital economy. The law creates, moreover, an extra level of accountability in the governance of the digital state through procedural fairness and control of institutions. Transparency in ranking algorithms, terms of service, and grievance redress mechanisms demystifies the kinds of operational opacity that often characterize powerful digital platforms and empowers businesses and consumers to act with greater confidence and trust in market operations. Such trust is what the Bill promotes as being more than healthy for the operation of digital markets, but also desirable as the foundation for sustainable investment. Another outcome worth remarkable mention from the Bill is the indirect benefit that it brings to the consumers. Competition naturally promotes innovation and higher service quality when smaller enterprises flourish. This translates to choosing more, better-quality options at lower prices for end users. Thus, not only do the producers of the digital economy are benefitted, but this Bill consequently appeals to the consumer crowd, so that the digital economy grows in a balanced, inclusive, and responsive manner to the needs of India’s varied population. The potential for the Bill’s success lies, however, very much in the ability of regulators to administer it wisely. There will be no exception to the rule that one fights for the rights of the innovation capacity of digital platforms. As in many cases, overregulation with little contextual flexibility could create inertia in bureaucracy or discourage investment in new, developing technology. Thus, then, the Bill must be termed a living document that develops with technological advancement and market dynamics. The Competition Commission of India (CCI), along with industry bodies and civil society, has to carry out continuous review, adaptation, and fine-tuning of enforcement strategies to strike a healthy balance between oversight and entrepreneurial freedom. Strengthening provisions around data portability, user consent, and interoperability can further increase the Bill’s effectiveness. These mechanisms will greatly lower informational asymmetry and prevent lock-in of consumers, inducing healthy competition and allowing companies to compete on innovation rather than on fenced-off access to data. Government-green initiatives for awareness, regulatory support to actualize startup ideas, and proliferation in digital literacy will collectively add to the goals of this legislation by enabling workforce-wide participation in digital markets. The Digital Competition Bill of 2024 is not a law but a vision for a future digital India. It once again embodies the promise for a market where innovation, merit, and consumer interest trump power concentration and exploitative practices. It would restore opportunity balance, decrease dependence on digital oligarchs, and guarantee that economic liberty in the digital era is not an exclusive privilege, but a universal right. While world economies are grappling with similar issues concerning the concentration of their digital markets, India’s bold and preventative approach could serve as a beacon. If executed insightfully, with inclusivity and integrity, the Digital Competition Bill could pave the way for a more competitive, transparent, and equitable digital economy-not just in India but as a model for the world. References Scientific literature: Acemoglu, D., Robinson, J. A., Woren, D. (2012). Why nations fail: the origins of power, prosperity and poverty. Crown Publishing Group, a division of Random House, Inc., New York. Berlin, I. (1969). Two Concepts of Liberty. Four Essays on Liberty. Oxford University Press, Binns, R. (2021). Algorithmic Bias and Fairness in the Digital Economy. Indian Journal of Law and Technology, 17(3); Bradford, A. (2020). The Brussels Effect: How the European Union Rules the World. Oxford University Press. Cohen, J. E. (2020). Digital Platforms Regulation: New Age for Economic Freedom. Oxford University Press. Creemers, R. (2018). China’s Regulatory Approach to the Digital Economy. Journal of Comparative Law, 13(2); Friedman, M. (1962). 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An inquiry into the nature and causes of the wealth of nations. Strahan, W., Cadell T. Stigler, G. J. (2018). Digital monopolies and the limits of competition law. Journal of Economic Perspectives, 32(1); Official Documents and Legislative Acts Digital Competition Act 2024. Available at: <https://prsindia.org/policy/report-summaries/digital-competition-law> (Last access: 11 February, 2025). Government of India. (2024). Report of the Committee on Digital Markets and Competition. Ministry of Corporate Affairs. Ministry of Corporate Affairs. (2024). Report of the Committee on Digital Competition Law. (Last access: 01 February, 2025). Ministry of Electronics and Information Technology. (2024). Digital Competition Bill of India. Government of India. (Last access: 25 January, 2025). (2021). Digital Economy Report. Reports and Online Sources Gouri, G. (2025). The Competition Commission of India and Digital Markets. Competition Policy International. Available at: <https://www.pymnts.com/cpi-posts/unpacking-america-first-antitrust-for-europeans/> (Last access: 01 May, 2025). (2025). E-commerce Industry in India. Available at: <https://www.ibef.org/industry/ecommerce> (Last access: 11 February, 2025). India Briefing. (2025). India’s Digital Competition Bill Advances with Industry Insights. Available at: <https://www.india-briefing.com/news/indias-digital-competition-bill-advances-with-industry-insights-36536.html/> (Last access: 18 February, 2025). Mishra, D., Kedia, M., Reddy, A., Kanwar, S., Das, B., Gupta, S., Sharma, D. (2023). State of India’s Digital Economy (SIDE) Report. Indian Council for Research on International Economic Relations (ICRIER). Available at: < https://icrier.org/publications/state-of-indias-digital-economy-report-2023/> (Last access: 15 January, 2025). Footnotes [1] Smith, A. (1776). An inquiry into the nature and causes of the wealth of nations. Strahan, W., Cadell T. [2] Friedman, M. (1962). Capitalism and Freedom. Chicago: University of Chicago Press. Available at: <https://press.uchicago.edu/ucp/books/book/chicago/C/bo68666099.html> [3] Hayek, F. (2007, March) The Road to Serfdom. University of Chicago Press, Chicago, pp. 27-31. [4] Cohen, J. E. (2020). Digital Platforms Regulation: New Age for Economic Freedom. Oxford University Press. [5] Stigler, G. J. (2018). Digital monopolies and the limits of competition law. Journal of Economic Perspectives, 32(1), pp. 45-60. [6] Mishra, D., Kedia, M., Reddy, A., Kanwar, S., Das, B., Gupta, S., Sharma, D. (2023). State of India’s Digital Economy (SIDE) Report. Indian Council for Research on International Economic Relations (ICRIER). Available at: < https://icrier.org/publications/state-of-indias-digital-economy-report-2023/> (Last access: 15 January, 2025). [7] Ministry of Electronics and Information Technology. (2024). Digital Competition Bill of India. Government of India. (Last access: 25 January, 2025). [8] Ibid. [9] Gouri, G. (2025). The Competition Commission of India and Digital Markets. Competition Policy International. Available at: <https://www.pymnts.com/cpi-posts/unpacking-america-first-antitrust-for-europeans/> (Last access: 01 May, 2025). [10] Berlin, I. (1969). Two Concepts of Liberty. Four Essays on Liberty. Oxford University Press, pp. 118-172. [11] Ibid. [12] Stigler, G. J. (2018). Digital monopolies and the limits of competition law. Journal of Economic Perspectives, 32(1), pp. 45-60. [13] Rawls, J. (1971). A theory of justice. Harvard University Press. Available at: <https://doi.org/10.2307/j.ctvjf9z6v>. [14] Acemoglu, D., Robinson, J. A., Woren, D. (2012). Why nations fail: the origins of power, prosperity and poverty. Crown Publishing Group, a division of Random House, Inc., New York. [15] UNCTAD. (2021). Digital Economy Report. [16] Pasquale, F. (2015). The black box society: the secret algorithms that control money and information. Cambridge, Massachusetts; London, England: Harvard University Press. [17] Shoshana, Z. (2019). The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power. New York: Public Affairs. [18] Bradford, A. (2020). The Brussels Effect: How the European Union Rules the World. Oxford University Press. [19] Creemers, R. (2018). China’s Regulatory Approach to the Digital Economy. Journal of Comparative Law, 13(2), pp. 87–110. [20] Schumpeter, J. A. (1942). Capitalism, Socialism and Democracy. Vol. 36, Harper & Row, New York, pp. 132-145. [21] Smith, A. (1776). An inquiry into the nature and causes of the wealth of nations. Strahan, W., Cadell T. [22] Cohen, J. E. (2020). Digital Platforms Regulation: New Age for Economic Freedom. Oxford University Press. [23] Binns, R. (2021). Algorithmic Bias and Fairness in the Digital Economy. Indian Journal of Law and Technology, 17(3), pp. 111–138. [24] Stigler, G. J. (2018). Digital monopolies and the limits of competition law. Journal of Economic Perspectives, 32(1), pp. 45-60. [25] Binns, R. (2021). Algorithmic Bias and Fairness in the Digital Economy. Indian Journal of Law and Technology, 17(3), pp. 111–138. [26] Cohen, J. E. (2020). Digital Platforms Regulation: New Age for Economic Freedom. Oxford University Press. [27] Ministry of Corporate Affairs. (2024). Report of the Committee on Digital Competition Law. (Last access: 01 February, 2025). [28] Digital Competition Act 2024. Available at: <https://prsindia.org/policy/report-summaries/digital-competition-law> (Last access: 11 February, 2025). [29] Schneider, (2022). Competition and innovation in digital markets: a balancing act. Law and Economics Journal, 28(1), pp. 134-150. [30] Cohen, J. E. (2020). Digital Platforms Regulation: New Age for Economic Freedom. Oxford University Press. [31] IBEF. (2025). E-commerce Industry in India. Available at: <https://www.ibef.org/industry/ecommerce> (Last access: 11 February, 2025). [32] Binns, R. (2021). Algorithmic Bias and Fairness in the Digital Economy. Indian Journal of Law and Technology, 17(3), pp. 111–138. [33] Schneider, (2022). Competition and innovation in digital markets: a balancing act. Law and Economics Journal, 28(1), pp. 134-150. [34] Cohen, J. E. (2020). Digital Platforms Regulation: New Age for Economic Freedom. Oxford University Press. [35] Binns, R. (2021). Algorithmic Bias and Fairness in the Digital Economy. Indian Journal of Law and Technology, 17(3), pp. 111–138. [36] India Briefing. (2025). India’s Digital Competition Bill Advances with Industry Insights. Available at: <https://www.india-briefing.com/news/indias-digital-competition-bill-advances-with-industry-insights-36536.html/> (Last access: 18 February, 2025). [37] Hayek, F. A. (2007, March). The road to serfdom. University of Chicago Press. [38] Smith, A. (1776). An inquiry into the nature and causes of the wealth of nations. Strahan, W., Cadell, T. [39] Schumpeter, J. A. (1942) Capitalism, Socialism and Democracy. Vol. 36, Harper & Row, New York, pp. 132-145. [40] Stigler, G. J. (2018). Digital monopolies and the limits of competition law. Journal of Economic Perspectives, 32(1), pp. 45-60. [41] Hayek, F. A. (2007, March). The road to serfdom. University of Chicago Press. [42] Binns, R. (2021). Algorithmic Bias and Fairness in the Digital Economy. Indian Journal of Law and Technology, 17(3), pp. 111–138. [43] Government of India. (2024). Report of the Committee on Digital Markets and Competition. Ministry of Corporate Affairs.