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. Four recommendations emerge: first, developing national legislation with clear definitions of digital misleading advertising and proportionate sanctions; second, strengthening international cooperation through unified standards and information exchange mechanisms; third, deploying advanced monitoring technologies, including AI-assisted content analysis; fourth, intensifying consumer awareness programmes on digital rights and recognition of misleading advertising. References Scholarly literature Abdullah, A. G. B. (2015). Commercial law and consumer protection (in Arabic). Dar Al Nahda Al Arabiya; Abu-Kaif, A. M. (2023). Consumer protection from misleading electronic advertising: A comparative study (in Arabic). Journal of Legal and Economic Research, 13(86). https://doi.org/10.21608/mjle.2023.340162 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). https://doi.org/10.22610/imbr.v16i2(I)S.3774 Alaoua, H., Azzaouz, S. (2017). Criminal protection of the consumer from unfair practices (in Arabic). Journal of Rights and Freedoms, 5(1). https://asjp.cerist.dz/en/article/32913 Al-Sanhuri, A. (2011). The intermediary in explaining the new civil law: Sources of obligation, Vol. 1 (in Arabic). Dar Nahdat Misr. ISBN 9786144010037. Babayev, J. (2023). Safeguarding consumer rights in the digital age: Challenges and strategies. Uzbek Journal of Law and Digital Policy, 1(1). https://doi.org/10.59022/ujldp.70 Bliman, Y. (2009). False or misleading advertising (in Arabic). Journal of Humanities, 20(4). https://asjp.cerist.dz/en/article/3553 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). https://asjp.cerist.dz/en/article/56298 Chawla, N., Kumar, B. (2022). E-commerce and consumer protection in India: The emerging trend. Journal of Business Ethics, 180. https://doi.org/10.1007/s10551-021-04884-3 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). https://doi.org/10.47772/IJRISS.2025.9010206 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). https://doi.org/10.1111/joca.12295 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. Springer. https://doi.org/10.1007/978-3-030-11611-8_5 Kettab, Z. (2025). Legal mechanisms for consumer protection under Algerian e-commerce law. Journal of Law and Sustainable Development, 13(1). https://doi.org/10.55908/sdgs.v13i1.4261 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). https://asjp.cerist.dz/en/article/231633 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). https://asjp.cerist.dz/en/article/186120 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). https://doi.org/10.54691/g623mg68 Medjahed, H. (2025). Consumer protection mechanisms from misleading electronic advertising in light of Algerian legislation. The International Tax Journal, 52(6). https://internationaltaxjournal.online/index.php/itj/article/view/315 Meenakumary, S. (2021). Legal regulation of false and misleading advertisements with special reference to Consumer Protection Act, 2019. Commerce & Business Researcher, 14(2). https://doi.org/10.59640/cbr.v14i2.53-61 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). https://doi.org/10.36948/ijfmr.2025.v07i03.45519 Mupangavanhu, Y., Kerchhoff, D. (2023). Online deceptive advertising and consumer protection in South Africa: The law and its shortcomings? De Jure Law Journal, 56. https://doi.org/10.17159/2225-7160/2023/v56a7 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). https://doi.org/10.1080/02650487.1996.11104632 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). Shaoua, H. (2015). Consumer protection from the crime of misleading or false commercial advertising (in Arabic). Journal of Legal Studies, 23. https://asjp.cerist.dz/en/article/64272 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 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). https://doi.org/10.55908/sdgs.v11i5.740 Normative Acts: Algeria. (1990). Executive Decree No. 90-367 of November 10, 1990 (in Arabic). Official Gazette of the People’s Democratic Republic of Algeria (JORA), No. 50. https://www.joradp.dz/FTP/jo-arabe/1990/A1990050.PDF 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 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 Algeria. (2013). Executive Decree No. 13-378 of November 9, 2013 (in Arabic). Official Gazette of the People’s Democratic Republic of Algeria (JORA), No. 58. https://www.joradp.dz/FTP/jo-arabe/2013/A2013058.pdf 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 Council of Europe. (1998). Protocol amending the European Convention on Transfrontier Television (ETS No. 171). Strasbourg, October 1, 1998. https://rm.coe.int/168007f2cd Egypt. (2018). Consumer Protection No. 181 of 2018 (in Arabic). WIPO Lex. https://www.wipo.int/wipolex/ar/legislation/details/19866 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. https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32005L0029 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 France. (n.d.). Code de la Consommation (Légifrance). Retrieved on December 16, 2025. https://www.legifrance.gouv.fr/codes/texte_lc/LEGITEXT000006069565 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 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 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 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 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). 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); African Union. (2022). African Union Climate Change and Resilient Development Strategy and Action Plan (2022–2032); 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); 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. Nigerian Legislation: 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; 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); Federal Republic of Nigeria. (2011). Legal Aid Act. Official Gazette of the Federal Republic of Nigeria; Federal Republic of Nigeria. (2015). Violence Against Persons (Prohibition) Act (VAPPA 2015). Official Gazette of the Federal Republic of Nigeria; Federal Republic of Nigeria. (2021). Climate Change Act. Official Gazette of the Federal Republic of Nigeria. Court Decisions: Centre for Oil Pollution Watch v. Nigerian National Petroleum Corporation. (2019). (5) NWLR (Pt. 1666) 518; Gbemre v. Shell Petroleum Development Company of Nigeria Ltd. and Others. (2005). (6) African Human Rights Law Reports 152; Magit v. University of Agriculture, Makurdi (2005). 19 NWLR (Pt. 959) 211, 259 D-E; SERAC v. Nigeria. (2001). (60) African Human Rights Law Reports. Other Supplementary Material: Le, M. V. (2022). 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. Paper presented at the Third International Symposium on Maritime Disaster Management, Kingdom of Saudi Arabia, October 8-12; Attafi, M. (2020). Combating unlawful acts committed at sea. Doctoral dissertation, University of Boudaou, Faculty of Law; 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); 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; Boukjouta, F. (2013). Maritime piracy between international practice and international law. Master’s thesis, University of Algiers 1, Faculty of Law; 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; Fakhoury, A. (2015). International legal regime against piracy off the coast of Somalia. Journal of Law, 1; Ghafaflia, A. Y. (2025). The efforts of the United Nations and Interpol in combating maritime piracy. Journal of Legal and Economic Research, 8(1); 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); Magsood, S. (2020). The Security Council and repression of maritime piracy: The case of Somalia. Transactions on Maritime Science, 9(2); Mohieddine, C. (2024). Continental frameworks for maritime security protection in Africa: Ambitions and challenges. Journal of the Faculty of Politics and Economics, 22; Omrani, N. (2013). Maritime piracy and its distinction from similar acts. Journal of Legal and Political Research and Studies, 6; Proutière-Maulion, G. (2013). Globalization, sustainable development and human rights: The example of maritime piracy. Neptunus, 19(3); 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; Salimah, S. M. (2014). Maritime piracy. Riyadh: Law and Economics Library; 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; Taybaoui, O., Rabhi, L. (2022). The relationship between maritime piracy and terrorism. Journal of Rights and Freedoms, 10(1); 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); Zahir Ali, J., Labaki, G. (2025). The international community’s confrontation of maritime piracy. Journal of Human and Natural Sciences, 6(3); 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). 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. It briefly and shortly sums up the results of the research, describes the main idea of the given research, scientific novelty, and its value, describes the main findings and possible recommendations, and creates interest and further perspective for continuing the research. References Scholarly literature 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. Agha, M., Lovich, J. E., Ennen, J. R., Todd, B. D. (2020). Wind, sun, and wildlife: Do wind and solar energy development ‘short-circuit’ conservation in the western United States? Environmental Research Letters, 15(7), 075004. https://doi.org/10.1088/1748-9326/ab8846. Amernick, B. A. (1991). Basic distinctions between patents, copyrights, trade secrets, and trademarks. In Patent Law for the Nonlawyer (pp. 5-10). Springer US. https://doi.org/10.1007/978-1-4684-7829-7_2. Baines, S., Wrubell, S., Kennedy, J., Bohn, C., Richards, C. (2019). How To PPA: An examination of the regulatory and commercial challenges and opportunities arising in the context of private power purchase agreements for renewable energy. Alberta Law Review, 389. https://doi.org/10.29173/alr2580. Barpanda, S. S., Saxena, S. C., Rathour, H., Dey, K., Pawan Kumar, K. V. N. (2015, November). Renewable energy integration in Indian electricity market. 2015 IEEE PES Asia-Pacific Power and Energy Engineering Conference (APPEEC). https://doi.org/10.1109/appeec.2015.7381034. Chaudhary, A., Krishna, C., Sagar, A. (2014). Policy making for renewable energy in India: Lessons from wind and solar power sectors. Climate Policy, 15(1), 58-87. https://doi.org/10.1080/14693062.2014.941318. Daughdrill, W. H. (2009). Assessing the role of environmental and regulatory issues on offshore renewable energy projects in the United States. Volume 4: Ocean Engineering; Ocean Renewable Energy; Ocean Space Utilization, Parts A and B. https://doi.org/10.1115/omae2009-79097. de Barros Correia, T., Tolmasquim, M. T., Hallack, M. (2020). Guide for designing contracts for renewable energy procured by auctions. Inter-American Development Bank. https://doi.org/10.18235/0002583. Dubey, B., Agrawal, S., Sharma, A. K. (2023). India’s renewable energy portfolio: An investigation of the untapped potential of RE, policies, and incentives favoring energy security in the country. Energies, 16(14), 5491. https://doi.org/10.3390/en16145491. El Wejhani, S., Elleuch, M., Tnani, S., Ben Kilani, K., Ennine, G. (2022, October 26). Renewable energy integration in power system: Clarification on stability indices. 2022 IEEE International Conference on Electrical Sciences and Technologies in Maghreb (CISTEM). https://doi.org/10.1109/cistem55808.2022.10044066. Eppinger, E., Jain, A., Vimalnath, P., Gurtoo, A., Tietze, F., Hernandez Chea, R. (2021). Sustainability transitions in manufacturing: The role of intellectual property. Current Opinion in Environmental Sustainability, 49, 118-126. https://doi.org/10.1016/j.cosust.2021.03.018. Fonseca, L. M., Domingues, J. P., Dima, A. M. (2020). Mapping the sustainable development goals relationships. Sustainability, 12(8), 3359. https://doi.org/10.3390/su12083359. Ganiyu, S. O., Martínez-Huitle, C. A. (2020). The use of renewable energies driving electrochemical technologies for environmental applications. Current Opinion in Electrochemistry, 22, 211-220. https://doi.org/10.1016/j.coelec.2020.07.007. Ghosh, D., Shukla, P. R., Garg, A., Ramana, P. V. (2002). Renewable energy technologies for the Indian power sector: Mitigation potential and operational strategies. Renewable and Sustainable Energy Reviews, 6(6), 481-512. https://doi.org/10.1016/s1364-0321(02)00015-1. 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. Girard, B., Sareen, S. (2024). Change everything so that (almost) nothing changes? Investigating the territorial distribution of solar energy subsidies in rural India. Environmental Sociology, 1-12. https://doi.org/10.1080/23251042.2024.2372890. Gould, D. M., Gruben, W. C. (1996). The role of intellectual property rights in economic growth. Journal of Development Economics, 48(2), 323-350. https://doi.org/10.1016/0304-3878(95)00039-9. 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. Graham, S. J. H. (2008). Chapter 5 Beyond patents: The role of copyrights, trademarks, and trade secrets in technology commercialization. In Advances in the Study of Entrepreneurship, Innovation & Economic Growth (pp. 149-170). Emerald (MCB UP). https://doi.org/10.1016/s1048-4736(07)00005-7. Gupta, H., Singh, N. K. (2023). Climate Change and Biodiversity Synergies: A Scientometric Analysis in the Context of UNFCCC and CBD. Anthropocene Science, 2(1), 5-18. https://doi.org/10.1007/s44177-023-00046-4. 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. Heptonstall, P. J., Gross, R. J. K. (2020). A systematic review of the costs and impacts of integrating variable renewables into power grids. Nature Energy, 6(1), 72-83. https://doi.org/10.1038/s41560-020-00695-4. Holstenkamp, L. (2019). Financing consumer (co-)ownership of renewable energy sources. In Energy Transition (pp. 115–138). Springer International Publishing. https://doi.org/10.1007/978-3-319-93518-8_6. Horbulyk, T. M. (1993). Intellectual property rights and technological innovation in agriculture. Technological Forecasting and Social Change, 43(3–4), 259-270. https://doi.org/10.1016/0040-1625(93)90055-c. Johnstone, N., Haščič, I., Popp, D. (2009). Renewable energy policies and technological innovation: Evidence based on patent counts. Environmental and Resource Economics, 45(1), 133-155. https://doi.org/10.1007/s10640-009-9309-1. 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. 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. Kim, D., Kim, N., Kim, W. (2018). The effect of patent protection on firms’ market value: The case of the renewable energy sector. Renewable and Sustainable Energy Reviews, 82, 4309-4319. https://doi.org/10.1016/j.rser.2017.08.001. Kim, J. Y., Koide, D., Ishihama, F., Kadoya, T., Nishihiro, J. (2021). Current site planning of medium to large solar power systems accelerates the loss of the remaining semi-natural and agricultural habitats. Science of The Total Environment, 779, 146475. https://doi.org/10.1016/j.scitotenv.2021.146475. Larson, M. J. (2011). Cape wind: Lessons from environment and energy conflict. SSRN Electronic Journal. https://doi.org/10.2139/ssrn.1872859. 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. Li, J., Omoju, O. E., Zhang, J., Ikhide, E. E., Lu, G., Lawal, A. I., Ozue, V. A. (2020). Does Intellectual Property Rights Protection Constitute A Barrier To Renewable Energy? An Econometric Analysis. National Institute Economic Review, 251, R37-R46. https://doi.org/10.1017/nie.2020.5. Mendicino, L., Menniti, D., Pinnarelli, A., Sorrentino, N. (2019). Corporate power purchase agreement: Formulation of the related levelized cost of energy and its application to a real life case study. Applied Energy, 253, 113577. https://doi.org/10.1016/j.apenergy.2019.113577. Michaelowa, A., Shishlov, I., Brescia, D. (2019). Evolution of international carbon markets: Lessons for the Paris Agreement. WIREs Climate Change, 10(6). https://doi.org/10.1002/wcc.613. Moon, D. (2004). Risk considerations in legalized dispute settlement (DS) mechanisms. Korean Journal of International Relations, 44(5), 61-84. https://doi.org/10.14731/kjis.2004.12.44.5.61. Neuman, S., Hopkins, C. D. (2009). Renewable energy projects on contaminated property: Managing the risks. Environmental Claims Journal, 21(4), 296-312. https://doi.org/10.1080/10406020903361381. 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. Ostergaard, P. A., Duic, N., Noorollahi, Y., Mikulcic, H., Kalogirou, S. (2020). Sustainable development using renewable energy technology. Renewable Energy, 146, 2430-2437. <https://doi.org/10.1016/j.renene.2019.08.094>; 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. Portman, M. (2010). Marine renewable energy policy: Some US and international perspectives compared. Oceanography, 23(2), 98-105. https://doi.org/10.5670/oceanog.2010.49. Prysiazhniuk, Y. Y. (2023). Legal activity of the international renewable energy agency. Uzhhorod National University Herald. Series: Law, 2(76), 251-256. https://doi.org/10.24144/2307-322.2022.76.2.40. Rastegar, H., Eweje, G., Sajjad, A. (2024). The impact of environmental policy on renewable energy innovation: A systematic literature review and research directions. Sustainable Development, 32(4), 3859-3876. https://doi.org/10.1002/sd.2884. 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). 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. 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. 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. 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. Shah, H., Chakravorty, J., Chothani, N. G. (2023). Protection challenges and mitigation techniques of power grid integrated to renewable energy sources: A review. Energy Sources, Part A: Recovery, Utilization, and Environmental Effects, 45(2), 4195-4210. https://doi.org/10.1080/15567036.2023.2203111. Sharma, A. (2024). 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. Shyam, B., Kanakasabapathy, P. (2017, December). Renewable energy utilization in India—Policies, opportunities and challenges. 2017 International Conference on Technological Advancements in Power and Energy (TAP Energy). https://doi.org/10.1109/tapenergy.2017.8397311. Tee, W.-S., Chin, L., Abdul-Rahim, A. S. (2021). Determinants of renewable energy production: Do intellectual property rights matter? Energies, 14(18), 5707. https://doi.org/10.3390/en14185707. The Cape Wind Offshore Wind Energy Project. (2011). In Collaborative Modeling and Decision-Making for Complex Energy Systems (pp. 157–181). World Scientific. https://doi.org/10.1142/9789814335201_0006. Tietje, C., Brouder, A., Nowrot, K. (2006). Philip C. Jessup’s Transnational Law Revisited, 55; Utama, M., Irsan, I. (2018). General overview on selecting and drafting construction contract disputes resolution. Sriwijaya Law Review, 2(2), 152. https://doi.org/10.28946/slrev.vol2.iss2.129.pp152-169. Utama, M., Irsan, I. (2018). General overview on selecting and drafting construction contract disputes resolution. Sriwijaya Law Review, 2(2), 152. https://doi.org/10.28946/slrev.vol2.iss2.129.pp152-169. van Hees, S. (2018). Large-scale water-related innovative renewable energy projects and the habitats and birds directives: Legal issues and solutions. European Energy and Environmental Law Review, 27(1), 15-36. https://doi.org/10.54648/eelr2018002. Verbeek, B.-J. (2023). The Modernization of the Energy Charter Treaty: Fulfilled or Broken Promises? Business and Human Rights Journal, 8(1), 97-102. https://doi.org/10.1017/bhj.2022.39. Verburg, C. (2019). Modernising the Energy Charter Treaty: An opportunity to enhance legal certainty in investor-state dispute settlement. The Journal of World Investment & Trade, 20(2–3), 425-454. https://doi.org/10.1163/22119000-12340144. Weismantle, K. (2014). Building a better solar energy framework. St. Thomas Law Review, 26. https://api.semanticscholar.org/CorpusID:166715796. 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. Wiser, R., Kahn, E. (1996). Alternative windpower ownership structures: Financing terms and project costs. Office of Scientific and Technical Information (OSTI). https://doi.org/10.2172/272563. Xu, X., Chen, X., Xu, Y., Wang, T., Zhang, Y. (2022). Improving the innovative performance of renewable energy enterprises in China: Effects of subsidy policy and intellectual property legislation. Sustainability, 14(13), 8169. https://doi.org/10.3390/su14138169. 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. You, M. (2016). Withdrawn: Assessment of multi-level legal mechanisms for the protection of ecosystem services in China. Ecosystem Services, 100348. https://doi.org/10.1016/j.ecoser.2016.02.009. Normative acts International treaty: United Nations. (1992). United Nations Framework Convention on Climate Change. United Nations. (1997). Kyoto Protocol to the United Nations Framework Convention on Climate Change. United Nations. (2015). Paris Agreement. Energy Charter Secretariat. (1994). Energy Charter Treaty. International Renewable Energy Agency. (2009). Statute of the International Renewable Energy Agency (IRENA). European Union. (1992). Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (Habitats Directive). European Union. (2009). Directive 2009/147/EC on the conservation of wild birds (Birds Directive). Electricity Act, No. 36 of 2003 (India). [in India] Central Electricity Regulatory Commission. (2022). Renewable Purchase Obligation (RPO) and Renewable Energy Certificate (REC) Regulations. [in India] Energy Policy Act of 2005, Pub. L. No. 109–58, 119 Stat. 594 (2005). [in United States] Federal Energy Regulatory Commission. (2018). Order No. 841: Electric storage participation in markets operated by regional transmission organizations and independent system operators. [in United States] Erneuerbare-Energien-Gesetz [EEG] [Renewable Energy Sources Act] (2017). [in Germany] Court decisions Amicus Solar Pvt. Ltd. v. State of Maharashtra, (2015).[in India]. Alliance to Protect Nantucket Sound v. U.S. Department of the Army, 288 F. Supp. 2d 64 (D.D.C. 2003). [in United States] European Commission v. Federal Republic of Germany, Case C-405/16 P (2019). [in European Union] Other supplementing materials : National Geographic. (n.d.) Case study: Cape Wind Project. https://education.nationalgeographic.org/resource/case-study-cape-wind-project/. Footnotes [1] Sharma, A. (2024). 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. [5] Ostergaard, P. A., Duic, N., Noorollahi, Y., Mikulcic, H., Kalogirou, S. (2020). Sustainable development using renewable energy technology. Renewable Energy, 146, 2430-2437. https://doi.org/10.1016/j.renene.2019.08.094. [6] Heptonstall, P. J., Gross, R. J. K. (2020). A systematic review of the costs and impacts of integrating variable renewables into power grids. Nature Energy, 6(1), 72-83. https://doi.org/10.1038/s41560-020-00695-4. [7] Ganiyu, S. O., Martínez-Huitle, C. A. (2020). The use of renewable energies driving electrochemical technologies for environmental applications. Current Opinion in Electrochemistry, 22, 211-220. https://doi.org/10.1016/j.coelec.2020.07.007. [8] Shah, H., Chakravorty, J., Chothani, N. G. (2023). Protection challenges and mitigation techniques of power grid integrated to renewable energy sources: A review. Energy Sources, Part A: Recovery, Utilization, and Environmental Effects, 45(2), 4195-4210. https://doi.org/10.1080/15567036.2023.2203111. [9] El Wejhani, S., Elleuch, M., Tnani, S., Ben Kilani, K., Ennine, G. (2022, October 26). Renewable energy integration in power system: Clarification on stability indices. 2022 IEEE International Conference on Electrical Sciences and Technologies in Maghreb (CISTEM). https://doi.org/10.1109/cistem55808.2022.10044066. [10] Tietje, C., Brouder, A., Nowrot, K. (2006). Philip C. Jessup’s Transnational Law Revisited, 55; Utama, M., Irsan, I. (2018). General overview on selecting and drafting construction contract disputes resolution. Sriwijaya Law Review, 2(2), 152. https://doi.org/10.28946/slrev.vol2.iss2.129.pp152-169. [11] United Nations. (1992). United Nations Framework Convention on Climate Change. [12] Energy Charter Secretariat. (1994). Energy Charter Treaty. [13] Verbeek, B.-J. (2023). The Modernization of the Energy Charter Treaty: Fulfilled or Broken Promises? Business and Human Rights Journal, 8(1), 97-102. https://doi.org/10.1017/bhj.2022.39. [14] Verburg, C. (2019). Modernising the Energy Charter Treaty: An opportunity to enhance legal certainty in investor-state dispute settlement. The Journal of World Investment & Trade, 20(2–3), 425-454. https://doi.org/10.1163/22119000-12340144. [15] International Renewable Energy Agency. (2009). Statute of the International Renewable Energy Agency (IRENA). [16] Prysiazhniuk, Y. Y. (2023). Legal activity of the international renewable energy agency. Uzhhorod National University Herald. Series: Law, 2(76), 251-256. https://doi.org/10.24144/2307-322.2022.76.2.40. [17] United Nations. (1997). Kyoto Protocol to the United Nations Framework Convention on Climate Change. [18] Fonseca, L. M., Domingues, J. P., Dima, A. M. (2020). Mapping the sustainable development goals relationships. Sustainability, 12(8), 3359. https://doi.org/10.3390/su12083359. [19] United Nations. (2015). Paris Agreement. [20] Michaelowa, A., Shishlov, I., Brescia, D. (2019). Evolution of international carbon markets: Lessons for the Paris Agreement. WIREs Climate Change, 10(6). https://doi.org/10.1002/wcc.613. [21] 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. [22] Energy Policy Act of 2005, Pub. L. No. 109–58, 119 Stat. 594 (2005). [in United States] [23] 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. [24] Mendicino, L., Menniti, D., Pinnarelli, A., Sorrentino, N. (2019). Corporate power purchase agreement: Formulation of the related levelized cost of energy and its application to a real life case study. Applied Energy, 253, 113577. https://doi.org/10.1016/j.apenergy.2019.113577. [25] Portman, M. (2010). Marine renewable energy policy: Some US and international perspectives compared. Oceanography, 23(2), 98-105. https://doi.org/10.5670/oceanog.2010.49. [26] Federal Energy Regulatory Commission. (2018). Order No. 841: Electric storage participation in markets operated by regional transmission organizations and independent system operators. [in United States] [27] 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>. [28] Weismantle, K. (2014). Building a better solar energy framework. St. Thomas Law Review, 26. https://api.semanticscholar.org/CorpusID:166715796. [29] 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. [30] Electricity Act, No. 36 of 2003 (India). [31] Dubey, B., Agrawal, S., Sharma, A. K. (2023). India’s renewable energy portfolio: An investigation of the untapped potential of RE, policies, and incentives favoring energy security in the country. Energies, 16(14), 5491. https://doi.org/10.3390/en16145491. [32] Gupta, H., Singh, N. K. (2023). Climate Change and Biodiversity Synergies: A Scientometric Analysis in the Context of UNFCCC and CBD. Anthropocene Science, 2(1), 5-18. https://doi.org/10.1007/s44177-023-00046-4. [33] Central Electricity Regulatory Commission. (2022). Renewable Purchase Obligation (RPO) and Renewable Energy Certificate (REC) Regulations. [in India] [34] 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. [35] Barpanda, S. S., Saxena, S. C., Rathour, H., Dey, K., Pawan Kumar, K. V. N. (2015, November). Renewable energy integration in Indian electricity market. 2015 IEEE PES Asia-Pacific Power and Energy Engineering Conference (APPEEC). https://doi.org/10.1109/appeec.2015.7381034. [36] Ghosh, D., Shukla, P. R., Garg, A., Ramana, P. V. (2002). Renewable energy technologies for the Indian power sector: Mitigation potential and operational strategies. Renewable and Sustainable Energy Reviews, 6(6), 481-512. https://doi.org/10.1016/s1364-0321(02)00015-1. [37] Shyam, B., Kanakasabapathy, P. (2017, December). Renewable energy utilization in India—Policies, opportunities and challenges. 2017 International Conference on Technological Advancements in Power and Energy (TAP Energy). <https://doi.org/10.1109/tapenergy.2017.8397311>. [38] Chaudhary, A., Krishna, C., Sagar, A. (2014). Policy making for renewable energy in India: Lessons from wind and solar power sectors. Climate Policy, 15(1), 58-87. https://doi.org/10.1080/14693062.2014.941318. [39] Tee, W.-S., Chin, L., Abdul-Rahim, A. S. (2021). Determinants of renewable energy production: Do intellectual property rights matter? Energies, 14(18), 5707. https://doi.org/10.3390/en14185707. [40] Xu, X., Chen, X., Xu, Y., Wang, T., Zhang, Y. (2022). Improving the innovative performance of renewable energy enterprises in China: Effects of subsidy policy and intellectual property legislation. Sustainability, 14(13), 8169. https://doi.org/10.3390/su14138169. [41] Gould, D. M., Gruben, W. C. (1996). The role of intellectual property rights in economic growth. Journal of Development Economics, 48(2), 323-350. https://doi.org/10.1016/0304-3878(95)00039-9. [42] Li, J., Omoju, O. E., Zhang, J., Ikhide, E. E., Lu, G., Lawal, A. I., Ozue, V. A. (2020). Does Intellectual Property Rights Protection Constitute A Barrier To Renewable Energy? An Econometric Analysis. National Institute Economic Review, 251, R37-R46. https://doi.org/10.1017/nie.2020.5. [43] Horbulyk, T. M. (1993). Intellectual property rights and technological innovation in agriculture. Technological Forecasting and Social Change, 43(3–4), 259-270. https://doi.org/10.1016/0040-1625(93)90055-c [44] Eppinger, E., Jain, A., Vimalnath, P., Gurtoo, A., Tietze, F., Hernandez Chea, R. (2021). Sustainability transitions in manufacturing: The role of intellectual property. Current Opinion in Environmental Sustainability, 49, 118-126. https://doi.org/10.1016/j.cosust.2021.03.018 [45] Kim, D., Kim, N., Kim, W. (2018). The effect of patent protection on firms’ market value: The case of the renewable energy sector. Renewable and Sustainable Energy Reviews, 82, 4309-4319. https://doi.org/10.1016/j.rser.2017.08.001 [46] Johnstone, N., Haščič, I., Popp, D. (2009). Renewable energy policies and technological innovation: Evidence based on patent counts. Environmental and Resource Economics, 45(1), 133-155. https://doi.org/10.1007/s10640-009-9309-1 [47] Graham, S. J. H. (2008). Chapter 5 Beyond patents: The role of copyrights, trademarks, and trade secrets in technology commercialization. In Advances in the Study of Entrepreneurship, Innovation & Economic Growth (pp. 149-170). Emerald (MCB UP). <https://doi.org/10.1016/s1048-4736(07)00005-7>. [48] Amernick, B. A. (1991). Basic distinctions between patents, copyrights, trade secrets, and trademarks. In Patent Law for the Nonlawyer (pp. 5-10). Springer US. https://doi.org/10.1007/978-1-4684-7829-7_2 [49] Daughdrill, W. H. (2009). Assessing the role of environmental and regulatory issues on offshore renewable energy projects in the United States. Volume 4: Ocean Engineering; Ocean Renewable Energy; Ocean Space Utilization, Parts A and B. https://doi.org/10.1115/omae2009-79097 [50] 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 [51] 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. [52] Rastegar, H., Eweje, G., Sajjad, A. (2024). The impact of environmental policy on renewable energy innovation: A systematic literature review and research directions. Sustainable Development, 32(4), 3859-3876. https://doi.org/10.1002/sd.2884 [53] Kim, J. Y., Koide, D., Ishihama, F., Kadoya, T., Nishihiro, J. (2021). Current site planning of medium to large solar power systems accelerates the loss of the remaining semi-natural and agricultural habitats. Science of The Total Environment, 779, 146475. https://doi.org/10.1016/j.scitotenv.2021.146475 [54] You, M. (2016). Withdrawn: Assessment of multi-level legal mechanisms for the protection of ecosystem services in China. Ecosystem Services, 100348. https://doi.org/10.1016/j.ecoser.2016.02.009 [55] European Union. (1992). Council Directive 92/43/EEC on the conservation of natural habitats and of wild fauna and flora (Habitats Directive). [56] European Union. (2009). Directive 2009/147/EC on the conservation of wild birds (Birds Directive). [57] van Hees, S. (2018). Large-scale water-related innovative renewable energy projects and the habitats and birds directives: Legal issues and solutions. European Energy and Environmental Law Review, 27(1), 15-36. https://doi.org/10.54648/eelr2018002. [58] Agha, M., Lovich, J. E., Ennen, J. R., Todd, B. D. (2020). Wind, sun, and wildlife: Do wind and solar energy development ‘short-circuit’ conservation in the western United States? Environmental Research Letters, 15(7), 075004. https://doi.org/10.1088/1748-9326/ab8846. [59] Baines, S., Wrubell, S., Kennedy, J., Bohn, C., Richards, C. (2019). How To PPA: An examination of the regulatory and commercial challenges and opportunities arising in the context of private power purchase agreements for renewable energy. Alberta Law Review, 389. <https://doi.org/10.29173/alr2580>. [60] Mendicino, L., Menniti, D., Pinnarelli, A., Sorrentino, N. (2019). Corporate power purchase agreement: Formulation of the related levelized cost of energy and its application to a real life case study. Applied Energy, 253, 113577. <https://doi.org/10.1016/j.apenergy.2019.113577>. [61] Wiser, R., Kahn, E. (1996). Alternative windpower ownership structures: Financing terms and project costs. Office of Scientific and Technical Information (OSTI). <https://doi.org/10.2172/272563>. [62] Holstenkamp, L. (2019). Financing consumer (co-)ownership of renewable energy sources. In Energy Transition (pp. 115–138). Springer International Publishing. <https://doi.org/10.1007/978-3-319-93518-8_6>. [63] 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>. [64] de Barros Correia, T., Tolmasquim, M. T., Hallack, M. (2020). Guide for designing contracts for renewable energy procured by auctions. Inter-American Development Bank. <https://doi.org/10.18235/0002583>. [65] 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>. [66] Neuman, S., Hopkins, C. D. (2009). Renewable energy projects on contaminated property: Managing the risks. Environmental Claims Journal, 21(4), 296-312. <https://doi.org/10.1080/10406020903361381>. [67] Moon, D. (2004). Risk considerations in legalized dispute settlement (DS) mechanisms. Korean Journal of International Relations, 44(5), 61-84. <https://doi.org/10.14731/kjis.2004.12.44.5.61>. [68] Utama, M., Irsan, I. (2018). General overview on selecting and drafting construction contract disputes resolution. Sriwijaya Law Review, 2(2), 152. <https://doi.org/10.28946/slrev.vol2.iss2.129.pp152-169>. [69] Girard, B., Sareen, S. (2024). Change everything so that (almost) nothing changes? Investigating the territorial distribution of solar energy subsidies in rural India. Environmental Sociology, 1-12. <https://doi.org/10.1080/23251042.2024.2372890>. [70] Amicus Solar Pvt. Ltd. v. State of Maharashtra, (2015).[in India]. [71] 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>. [72] Alliance to Protect Nantucket Sound v. U.S. Department of the Army, 288 F. Supp. 2d 64 (D.D.C. 2003). [in United States] [73] 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)>. [74] The Cape Wind Offshore Wind Energy Project. (2011). In Collaborative Modeling and Decision-Making for Complex Energy Systems (pp. 157–181). World Scientific. <https://doi.org/10.1142/9789814335201_0006>. [75] National Geographic. (n.d.) Case study: Cape Wind Project. <https://education.nationalgeographic.org/resource/case-study-cape-wind-project/> (Last access: August 24, 2024). [76] Larson, M. J. (2011). Cape wind: Lessons from environment and energy conflict. SSRN Electronic Journal. <https://doi.org/10.2139/ssrn.1872859>. [77] 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. [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). Wind, sun, and wildlife: Do wind and solar energy development ‘short-circuit’ conservation in the western United States? Environmental Research Letters, 15(7), 075004. https://doi.org/10.1088/1748-9326/ab8846. [102] Johnstone, N., Haščič, I., Popp, D. (2009). Renewable energy policies and technological innovation: Evidence based on patent counts. Environmental and Resource Economics, 45(1), 133-155. https://doi.org/10.1007/s10640-009-9309-1. [103] 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). [104] 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. [105] 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. [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. References Scholarly Literature: Arsalan, H., Putri, D. S. (2020). Reformasi hukum dan hak asasi manusia dalam penyelesaian perselisihan hubungan industrial. Jurnal HAM, 11(1); 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; 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. 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. 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); Irawan, N. (2023). Studi Yuridis Normatif Implementasi Regulasi Perselisihan Hubungan Industrial. Jurnal Ketenagakerjaan, 18(1); 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); Kesek, S. (2015). Studi Komparasi Penyelesaian Perselisihan Hubungan Industrial Melalui Mediasi dan Konsiliasi. Dedikasi: Jurnal Ilmiah Sosial, Hukum, Budaya, 31(2); Mahkamah Konstitusi Republik Indonesia. (2015). MK: Mediator hubungan industrial harus terbitkan risalah mediasi. <https://www.mkri.id/index.php?page=web.Berita&id=12141>; Mantili, R. (2021). Konsep Penyelesaian Perselisihan Hubungan Industrial Antara Serikat Pekerja dengan Perusahaan Melalui Combined Process (Med-Arbitrase). 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.
Nyoman Satyayudha Dananjaya, S.H., M.Kn., Ph.D.
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). (2020). Courts and Artificial Intelligence. International Journal for Court Administration, 11(2), Article 8. Available at: <https://doi.org/10.36745/ijca.343>; Russell, S. J., Norvig, P. (2010). Artificial Intelligence. s.l.: Pearson Education Inc.; Sidamonidze, N. (2019). Artificial intelligence as a challenge and some methodological aspects of its implementation. Tbilisi: Georgian Technical University; Turing, A. (1950). Computing machinery and intelligence. s.l.: Mind. Legal acts and official documents: AI Decision-Making and the Courts, A guide for Judges, Tribunal Members and Court Administrators. (2022); Council of Europe. Artificial Intelligence. Available at: <https://www.coe.int/en/web/artificial-intelligence/glossary>; 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); 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); Government of Georgia. (2023). Guiding principles of the national strategy of Georgia on artificial intelligence. Tbilisi: Government of Georgia; 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>; Organisation für wirtschaftliche Zusammenarbeit und Entwicklung. Artificial Intelligence. OECD Principles on AI. (Online). Available at: https://www.oecd.org/going-digital/ai/principles/; (2019). On a Possible Standard-Setting Instrument on the Ethics of Artificial Intelligence. Available at: <https://unesdoc.unesco.org/ark:/48223/ pf0000369455>; 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). Web Sources: 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) ; 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); 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>; 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>; European Data Protection Supervisor. (n.d.). Datenschutz. Available at: <https://edps.europa.eu/data-protection/data-protection_de> (Last access: 30.09.2023); 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>; 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); 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>; High-Level Expert Group on Artificial Intelligence. European Commission. Available at: <https://ec.europa.eu/futurium/en/ai-alliance-consultation>. Available at: <https://www.oecd.org/governance/digital-government/toolkit/12principles/> (Last access: 01.10.2023); 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); 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: 09.2023); 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). 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). Paris: Ellipses Editions; Boyle, K., Simonsen, S. (2004). Human security, human rights, and disarmament. In Human rights, human security, and disarmament (Disarmament Forum No. 3, UNIDIR); Buirette, P., Lagrange, P. (2008). Global humanitarian law. Paris: La Découverte Edition ; 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; 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); Doswald-Beck, L., Vité, S. (1993). Global humanitarian law and human rights law. International Review of the Red Cross, Geneva; Doswald-Beck, L., Vité, S. (1993). International humanitarian law and human rights law. 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. References Scientific literature: 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. Available at: <https://www.researchgate.net/profile/Diab-Al-Badayneh/publication/328064682_aljraym_alalktrwnyt_almfhwm_walasbab/links/5bb5be4392851ca9ed37abf3/aljraym-alalktrwnyt-almfhwm-walasbab.pdf>; Allard, T., Béziaud, L., Gambs, S. (2020). Online publication of court records: Circumventing the privacy-transparency trade-off. arXiv. Available at: <https://arxiv.org/pdf/2007.01688>; 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). Available at: <https://mjle.journals.ekb.eg/article_235640.html?lang=en>; 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). Available at: <https://asjp.cerist.dz/en/article/192238>; 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). Available at: <https://asjp.cerist.dz/en/article/59930>; 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. Available at: <https://doi.org/10.1057/s41599-024-03587-0>; 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. Available at: <https://arxiv.org/pdf/2006.06251>; 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). Available at: <https://asjp.cerist.dz/en/article/170253>; 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. Cambridge University Press, Cambridge. Available at: <https://doi.org/10.1017/9781009071215>; 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). Available at: <https://doi.org/10.1093/idpl/ipab020>; ELI-Mount. (2023). European standards of judicial independence. Institut Européen du Droit. Available at: <https://www.europeanlawinstitute.eu/fileadmin/user_upload/p_eli/Publications/ELI-Mount_Scopus_European_Standards_of_Judicial_Independence.pdf>; ELI-Mount. (2024). European standards of judicial independence. Institut Européen du Droit. Available at: <https://www.europeanlawinstitute.eu/fileadmin/user_upload/p_eli/Publications/ELI-Mount_Scopus_European_Standards_of_Judicial_Independence.pdf>; 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. Available at: <https://doi.org/10.1016/j.clsr.2020.105523>; 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>; Jayyashi, A. F. M. (2014). Remote litigation: A legal study. Kufa Journal of Legal and Political Sciences, 1(21). Available at: <https://journal.uokufa.edu.iq/index.php/kjlps/article/view/9644>; 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. 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). Available at: <https://doi.org/10.20956/halrev.v10i2.5541>; Osmani, L. (2016). The electronic litigation system as a mechanism for achieving development plans. Elmofaker Review, 11(1). Available at: <https://asjp.cerist.dz/en/article/62437>; Saidani, N. (2021). Criminal protection of the right to privacy in the field of informatics. Doctoral dissertation, University of Batna 1. Available at: <https://dspace.univ-batna.dz/items/fe9fbbdb-ee56-4c1e-b68f-36ab7b404b58>. Selçuk, S., Konca, N. K., Kaya, S. (2025). AI-driven civil litigation: Navigating the right to a fair trial. Computer Law & Security Review, 57. Available at: <https://doi.org/10.1016/j.clsr.2025.106136>; Singh, M., Upadhyay, S. N. (2024). Digitization of Legal Aid Services and Criminal Justice. Law and World. Available at: <https://lawandworld.ge/index.php/law/article/view/471>; 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>. Normative Acts (Laws, Decrees, Ordinances, Codes): French Code of Civil Procedure. (2024). Légifrance. Available at: https://www.legifrance.gouv.fr/codes/texte_lc/LEGITEXT000006070716/ French Code of Criminal Procedure, Articles 706-71. Légifrance. Available at: https://www.legifrance.gouv.fr/codes/article_lc/LEGIARTI000051751938 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 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 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 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 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 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/ 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 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 Court Decisions: 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 Decision No. 2020-872 QPC of the French Constitutional Council. (January 15, 2021). Available at: https://www.legifrance.gouv.fr/jorf/id/JORFTEXT000042993586 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 Newspapers: 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>; 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>; 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). Alternative Dispute Resolution. Indian Journal of Law and Legal Research, 2(1); Nolan-Haley, J. M. (2008). Alternative Dispute Resolution in a Nutshell, St. Paul; Nwogugu, E. I. (2014). Family Law in Nigeria (3rd edition). HEBN Publishers Plc.; Ware, S. J. (2001). Alternative Dispute Resolution. St. Paul. Normative acts: Arbitration and Mediation Act. (2023). (AMA). Section 91; 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); Matrimonial Causes Act (MCA). (1970). Cap 220, LFN 1990; Texas Family Law Code. Section 6.603(b) 148; 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); 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); Court Decision: Halsey v. Milton Keynes General NHS Trust. (2004). ECWQ IV 576. Web Sources: 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); 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); 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); 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); 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); 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); International Academy of Collaborative Professionals (IACP). (2023). What is collaborative practice? Available at: <https://www.collaborativepractice.com> (Last access: 14 June 2025); Lawzana. (2025). About Collaborative law in Finland. Available at: <https://lawzana.com/collaborative-law-lawyers/finland> (Last access: 20 May 2025); 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); 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); 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); 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); Malek, C. (2013). Family Conflict. Available at: <https://www.beyondintractabiity.org/coreknowledge/family-conflict> (Last access: 1 May, 2025); Malek, C. (2013). International Conflict. Available at: <https://www.beyondintractability.org/coreknowledge/international-conflict> (Last access: 1 May, 2025); 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); 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); 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); 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); 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); 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); 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); 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); 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). Constitutionalism, the rule of law and the adjudication of private disputes: A view from South Africa. International Journal of Constitutional Law, 9(1); Currie, I. (2008). Balancing constitutional rights: The German and South African experience. Law, Democracy and Development, 12(2); Currie, I., De Waal, J. (2013). The Bill of Rights handbook (6th ed.), Juta; Fagan, A. (2010). Dignity and unfair discrimination: A value misplaced and a right misunderstood. South African Journal on Human Rights, 26(2); Gardbaum, S. (2003). The new commonwealth model of constitutionalism: Theory and practice. Cambridge University Press; 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; Klare, K. E. (1998). Legal culture and transformative constitutionalism. South African Journal on Human Rights, 14(1); Langa, P. (2006). Transformative constitutionalism. Stellenbosch Law Review, 17(3); Luhmann, N. (2004). Law as a social system (Ziegert, K., Trans.). Oxford University Press; Metz, T. (2011). Ubuntu as a moral theory and human rights in South Africa. African Human Rights Law Journal, 11(2); Micklitz, H. W. (2011). Social justice and access justice in private law (EUI Working Paper Law No. 2011/02). European University Institute. Mokgoro, Y. (1998). Ubuntu and the Law in South Africa. Buffalo Human Rights Law Review 4; Pistor, K. (2019). The code of capital: How the law creates wealth and inequality. Princeton University Press; Roach, K. (2001). The Supreme Court on trial: Judicial activism or democratic dialogue. Irwin Law; Tushnet, M. (1999). Taking the Constitution away from the courts. Princeton University Press; 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 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). Capitalism and Freedom. Chicago: University of Chicago Press. Available at: <https://press.uchicago.edu/ucp/books/book/chicago/C/bo68666099.html>. Hayek, F. A. (2007, March). The road to serfdom. University of Chicago Press. Available at: <https://press.uchicago.edu/ucp/books/book/chicago/R/bo4138549.html>. Pasquale, F. (2015). The black box society: the secret algorithms that control money and information. Cambridge, Massachusetts; London, England: Harvard University Press. Rawls, J. (1971). A theory of justice. Harvard University Press. Available at: <https://doi.org/10.2307/j.ctvjf9z6v>. Schneider, (2022). Competition and innovation in digital markets: a balancing act. Law and Economics Journal, 28(1); Schumpeter, J. A. (1942). Capitalism, Socialism and Democracy. Vol. 36, Harper & Row, New York; Shoshana, Z. (2019). The Age of Surveillance Capitalism: The Fight for a Human Future at the New Frontier of Power. New York: Public Affairs. Smith, A. (1776). 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.
Interpretation of Marriage Law Determination: An Analysis Study of the Adult Age of Marriage in Indonesia
This study addresses the implementation challenges of Indonesia’s Law No. 16 of 2019, which amended Law No. 1 of 1974 regarding marriage. The previous law set minimum marriage ages at 19 for men and 16 for women; the 2019 amendment raised the minimum age for women to 19, standardizing it for both sexes. A key issue highlighted is that this legal age limit may not fully account for the necessary biological, sociological, and other preparations essential for marriage, despite the aim of legal reform to protect family integrity. The research specifically focuses on the implications of this minimum marriage age from the perspective of Islamic law. Using a qualitative, descriptive-analytical library research method with an Islamic law approach, the study examines the differing views on the concept of maturity for marriage. The findings indicate that while the previous age of 16 for women was often considered adolescence in terms of overall maturity, the new legal age of 19 for both men and women is generally regarded as adulthood and deemed prepared for initiating family life within the framework of Islamic law. Keywords: Interpretation, legal determination, marriage, adult age. Introduction The existence of Islamic family law, especially in the study of limiting the age of marriage, is endless and deserves to be discussed from time to time, but it also attracts the attention of legislators, academics, and family law observers who study it from their respective scientific perspectives. However, studying in depth the modernization of Islamic family law through the issue of the age of marriage in Indonesia, of course, cannot be separated from the study of the social history of Islamic marriage law which has been recorded in the study of Islamic law.[1] In the renewal of Islamic family law, it is necessary to explore the important aspects behind the social dynamics in the discussion of Islamic family law.[2] The Islamic family law justice system, as one part of the national legal system project.[3] This can be seen based on the dynamics of the legislative process carried out by the government, although at the beginning of independence, the government was not very concerned with Islamic judicial institutions. As a result, the government, which only regulates marriage administration issues, has an impact on the practice of family law, which is still directly proportional to the existing law.[4] The strengthening of understanding of law as a tool of social engineering and supported by legal instruments that have existed before, has an impact on the increasingly active government in issuing legal products in the form of regulations on family law. One of its achievements is the enactment of the Marriage Law No. 1 of 1974 concerning marriage.[5] In this regard, the government has succeeded in articulating the important elements in the practice of Islamic family law into the standard legal language that has until now been applied nationally. The context of the initial period of enactment of the Marriage Law above, in historical records also cannot be separated from its socio-historical context.[6] On the one hand, this is due to the still strong taklid attitude of some Indonesian people towards certain schools of thought, while on the other hand, the position of Islamic law in the context of the state always reaps polemics, especially in the stage of state ideological debate, so that Islamic law seems to be at the midpoint between the paradigms of the state religion and state paradigm.[7] The development of the paradigm that the legal function is effective as a means of social engineering above, has made the state’s efforts through the Marriage Law successful in changing several things related to the practice of marriage in Indonesia, including the issue of the age of marriage. In historical records, the application and uniformity of the minimum age for marriage in Indonesia, initially, wanted to be regulated through the contents of Article 7 paragraph (1) of the 1973 Marriage Law which states that the minimum age for marriage is 21 years for men and 19 years for women.[8] However, because this draft law has drawn debates that are prone to conflict, it has to be postponed. This ended in the official stipulation of the 1974 Marriage Law, but with minor changes, especially regarding the determination of the age of marriage, which finally had to be lowered through Article 7 paragraph (1). The state stipulates that marriage is only permitted if the man has reached the age of 19 years and the woman has reached the age of 16 years.[9] The provisions in fiqh explain that the age of marriage is different from the provisions of the legislation in Indonesia, which stipulates the age of marriage in the same marriage law as 19 years, based on the decision of the Constitutional Court.[10] In view of the rules governing the age of marriage in the Law of the Republic of Indonesia Number 1 of 1974, as well as the Compilation of Islamic Law, the regulations in the legislation need to be obeyed by all levels of Indonesian citizens. Along with its development, in 1991, the regulation on the age of marriage in the 1974 Marriage Law was again clarified and strengthened by the emergence of the Islamic Law Compilation.[11] With the same editorial, through Article 15 paragraph (1) and (2) Complications of Islamic Law, the state stipulates that a Muslim who wants to marry must be at least 19 years old for men and 16 years old for women. If you do not meet this age requirement, in accordance with Article 7, paragraph (2) of the Marriage Law, the prospective bride and groom can request a dispensation from the religious court.[12] The debate about the age limit of children where a person is considered an adult in the context of marriage is related to readiness and maturity, not only physically, but also psychologically, economically, socially, mentally, religiously, and culturally. This is because marriage at an early age often poses various risks, both biological risks, such as damage to reproductive organs, as well as psychological risks. The ambiguity in determining the limits of normative adulthood occurs because there are different legal perspectives on the problems that develop in society at all social levels.[13] The issuance of Law No. 16 of 2019 on the amendment of Law No. 1 of 1974 concerning marriage has provided great benefits, where initially 16 years for women and 19 years for men have changed to 19 years for men and 19 years for women.[14] This should be appreciated because the struggle to revise Law Number 1 of 1974 has been approved by the Constitutional Court. Thus, the age provisions set by the Constitutional Court of 19 years for men are considered to have reached maturity in their attitude, capable of acting, maintaining, and being responsible for their actions. Meanwhile, a 19-year-old woman is considered to be an adult and able to run a household. The revision of Article 7 regarding the age limit for marriage in the Marriage Law has become a serious focus on at least four things. First, to prevent early marriage, which has a further impact on the occurrence of pregnant women and childbirth at a young age, which poses a high risk to the health of pregnant women and childbirth; as well as early marriage in the context of psychological mental readiness of married couples who are feared to be at high risk of divorce rates. Second, to protect the rights and interests of children, given that, according to Law no. 23 of 2002, as the implementation in the Convention on the Rights of the Child, it is stipulated that what is meant by children is up to the age of 18 years. Third, considering the sociological readiness of the couples to become an autonomous family in the midst of society. Fourth, paying attention to economic readiness in relation to the complexity of household needs today, which increasingly require careful planning.[15] In formal juridical terms, the age limit for marriage in Indonesia is regulated in the Marriage Law No. 1 of 1974 and the Compilation of Islamic Law.[16] In the law there is an article that determines the age limit of a man and a woman who will carry out a marriage, which is contained in Article 7 Paragraph 1 which states that marriage is only permitted if the man has reached the age of 19 years and the woman has reached the age of 19 years old. Avoiding the unequal age limit of men and women in marriage, giving encouragement and role models regarding the revision of the Marriage Law, the first step in realizing to carry out togetherness in order to protect the rights of children in Indonesia.[17] This method prioritizes togetherness and closeness to children, so that making decisions regarding children’s rights is the responsibility of the parties involved. From that, reforming the age of marriage in the marriage law is the basis for upholding justice in the existing law in Indonesia. Thus, to reform the limitation on the age of marriage, there is something that needs to be considered, namely, the existence of equality at the age of adults in the Law of the Republic of Indonesia. Adult age, if still based on the Law of the Republic of Indonesia Number 23 of 2002 concerning protecting children, is eighteen years old, Therefore, the minimum age limit of 16 years for women and 19 years for men to get married, as stated in the Marriage Law and the Compilation of Islamic Law, was changed to 19 years for women and 21 for men. The principle of prioritizing the best interests of children in every decision-making concerning children is the obligation of all parties.[18] Therefore, reconstructing the age of marriage in the marriage law is a concrete step as an effort towards Indonesian law enforcement, support and demands for the revision of the marriage law is a manifestation of the joint efforts of the citizens of this nation to save the future of Indonesian children, because children are only entrusted and a gift from God. The chronological explanation of the age of marriage problem above indicates that the age of marriage is a complex problem. This issue is not only a concern of the state, but also a separate concern for activists, academics, and institutions. Discussion The Essence of Marriage The term marriage in the Marriage Law Number 1 of 1974, Article 1, paragraph 2, marriage is defined as an inner and outer bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family, household based on the One Godhead.[19] Meanwhile, according to the Compilation of Islamic Law, as contained in article 2, it is stated that marriage in Islamic law is marriage, namely a very strong contract or miṡāqan galīẓan to obey Allah’s commands and carry it out is worship.[20] Meanwhile, according to Anwar Hafidzi and Mohd Hatta Mohd Hani, it means that the word marriage is a translation of the words nakaha and zawaja.[21] These two words are terms in the Qur’an to refer to marriage. In the context of human creation, Allah SWT created His creatures in pairs based on the sunnatullah. In this regard, Marcia Inhorn views marriage as making a person have a partner.[22] The word of God in the letter al-Żāriāt, verse 49 reads: “And we created everything in pairs so that you may remember the greatness of Allah”. This is confirmed by Allah in the Qur’an Surah al-Nisa’ verse 1, which reads: “O mankind, fear your Lord who created you from a single person, and from him Allah created his wife; and from both of them Allah has produced many males and females. and fear Allah who by (using) His name you ask one another, and (maintain) friendly relations. Verily, Allah is always watching over you”. Scholars define marriage in different syar’i terms. Beni Ahmad Syaebani quoted the opinion of Slamet Abidin and Aminudin, detailing several meanings of marriage according to several scholars, namely:[23] Hanafi scholars define marriage or marriage as a contract that is useful for having mut’ah on purpose. This means that a man can control a woman with all his limbs to get pleasure and satisfaction. Syafi’iyah scholars say that marriage is a contract using the pronunciation of nikāh or zauj, which has the meaning of possessing. This means that with marriage, a person can get pleasure from his partner. Malikiyah scholars say that marriage is a contract that contains mut’ah to achieve satisfaction by not requiring a price. Hanabilah scholars say that marriage is a contract by using inkāh and tazwīj pronunciation to get satisfaction. That is, a man can get satisfaction from a woman and vice versa. In this sense, there are words belonging to the meaning of the right to own through a marriage contract. Therefore, husband and wife can take advantage of each other to achieve life in their household, which aims to form a sakinah mawaddah wa rahmah family in the world. However, the Hanafi, Malikiyah, Syafi’iyah, and Hanabilah scholars have different opinions in giving the connotation (emphasis) on the ownership issue caused by the existence of the contract. For Hanafiyah scholars, the marriage contract has the consequence that the husband has the right to have pleasure (milk al-mut’ah) from his wife. For the Syafi’iyah scholars, the contract results in the husband having the opportunity to do waṭi’ (intercourse) with his wife, while according to Malikiyah, the contract results in ownership for the husband to get delicacy from his wife. Meanwhile, Hanabilah scholars emphasize the take and give aspect of the benefits of the marriage contract for husband and wife.[24] In terms of the practice of worship, marriage is a sunnah practice that is firmly prescribed by the Qur’an and the Prophet Muhammad, in line with sexual character and in accordance with a lawful and clean channel to obtain offspring who can maintain self-respect, joy of heart. , and inner peace. This small understanding refers to several provisions of fiqh and positive law in the form of the age of the bride and groom at marriage, namely, the child who is not yet mature and is not psychologically ready to carry out household responsibilities.[25] Because the provisions of fiqh are qualitative. In addition, marriage is the path chosen by God for His creatures, especially humans, to reproduce and preserve their lives. In this regard, Allah SWT created humans not only in their perfect physical form but also equipped with software in the form of natural basic sexual instincts, the need for a partner, and feelings of affection for the opposite sex.[26] Therefore, Allah also provides it with suggestions, commands, and prohibitions so that humans can manage the software in the form of marriage. The Urgency of Marriage Age in the Islam Perspective of Imam Madhhab Islamic law does not regulate the minimum age limit for marriage. The absence of religious provisions regarding the minimum and maximum age limits for marriage is assumed to provide leeway for humans to regulate it.[27] The Qur’an indicates that the person who is going to get married must be ready and able. The word of God in QS. al-Nūr: 32: “And marry those who are alone among you, and those who are worthy of marriage from your male slaves and your female slaves. If they are poor, Allah will enable them with His bounty. And Allah is Extensive (His gift) and All-Knowing”. Furthermore, the Messenger of Allah, in his words, advised young people to carry out marriages on the condition that they had the ability. “It was narrated from Alqamah r.a that he said: I once walked in Mina with Abdullah r.a, we met Usman r.a, who then approached Abdullah. After talking for a while, Usman asked: “O Abu Abdurrahman, will I set you up with a young woman? Hopefully it will be able to remind you of your good old days”. Hearing the offer, Abdullah replied: What you say is in line with what the Messenger of Allah said to us: “O youth! Whoever among you has the physical and mental ability to marry, let him marry. Indeed, marriage can keep the eye and maintain honor. So whoever is not capable, let him fast because fasting can keep lust. (H.R Bukhari dan Muslim).[28] Indirectly, the Qur’an and Hadith acknowledge that maturity is very important in marriage. Adult age in fiqh is determined by physical signs, namely signs of puberty in general, among others, the perfect age of 15 (fifteen) years for men, Ihtilām for men, and menstruation for women is at least 9 (nine) years old.[29] With the fulfillment of the criteria for puberty, it is possible for someone to get married. So a person’s maturity in Islam is often identified with baligh. If there is an abnormality or delay in physical or biological development, so that at the usual age a person has issued semen for men or issued menstrual blood for women but the person has not yet issued the signs of maturity, then start the return period based on the age that a person usually shows signs of puberty. The start of the age of puberty between one person and another is influenced by differences in the environment, geography, and so on.[30] The size of maturity as measured by the criteria for puberty is not rigid. That is, if it is casuistically very urgent, the two prospective brides must be immediately married, as a manifestation of the sadd al-zārī’ah method to avoid the possibility of greater harm. Scholars have different opinions on setting age limits for people who are considered adults. Syafi’iyah and Hanabilah scholars state that boys and girls are considered mature when they reach the age of 15 years.[31] Hanafiyah scholars stipulate that the age of a person is considered baligh as follows: boys are considered balig when they are 18 years old, and 17 years old for girls. Meanwhile, scholars from the Imamiyyah group state that boys are considered mature when they are 15 years old, and 9 years for girls. For girls who are 9 years old, there are two opinions. First, Imam Malik, Imam Shafi’i, and Imam Abu Hanifah said that a girl who is 9 years old is the same as an 8-year-old child, so that she is considered not yet mature. Second, a child is considered to have reached puberty or an adult because it has been possible to menstruate, so that it is permissible to marry even though there is no agency for him as an adult woman has.[32] Considering that marriage is a very strong contract or agreement (mīṡaqan galīẓan), which requires everyone who is bound in it to fulfill their respective rights and obligations with full justice, harmony, and balance. Marriage as a form of legal imposition is not enough just to require balig (age enough). The legal imposition (taklīf) is based on reason (aqil and mumayyiz), balig (age enough), and understanding.[33] This means that a person can only be burdened by law if he is reasonable and can understand well the taklif addressed to him. Regarding the principle of maturity in marriage, scholars tend not to discuss the age limit for marriage in detail, but rather to discuss the law of marrying young children. Marriage of young children in fiqh is called agīr or agīrah marriage or zawāj al mubakkir.[34] agīr or agīrah means small. However, what is meant by “agīr” or “agirah” are men and women who are not yet mature. Underage marriage cannot be separated from the right of ijbār, namely the right of the guardian (father or grandfather) to marry off his daughter without having to obtain prior approval or permission from the girl to be married, as long as she is not a widow.[35] A father can marry off his young and virgin daughter as long as she is not yet mature without his permission, and there are no khiyar rights for the daughter if she has reached puberty. On the other hand, fathers are not allowed to marry off their young sons. However, a daughter can not immediately be fertilized by her husband if she is still too young, so that she is mature enough to have a relationship like husband and wife. Scholars who allow guardians to marry off their underage daughters are generally based on the history that Abu Bakr ra. Marry Siti ‘Aisyah ra. with the Messenger of Allah. “Have told me Yahya bin Yahya, Ishaq bin Ibrahim, Abu Bakr, and Abu Kuraib. Yahya and Ishaq have said: Have told us and said al Akhrani: Has told me Abu Mu’awiyah from al A’masyi from al Aswad from ‘Aisha ra. said: Rasulullah SAW married me when I was 6 years old, and lived with me when I was 9 years old, and he died when I was 18 years old. (HR. Muslim).[36] Abu Bakr ra. had married ‘Aisyah to the Messenger of Allah when she was a child without her prior consent. Because at that age, his agreement cannot be considered perfect. However, regarding the marriage of ‘Aisyah ra. With the Prophet Muhammad, some scholars are of the opinion that this is an exception or specialty for the Messenger of Allah himself, as the Messenger of Allah was allowed to have more than four wives, which his followers were not allowed to follow. Another opinion states that the marriage of the Prophet with ‘Aisyah is more motivated by da’wah. However, the right of a father or grandfather’s ijbār cannot be exercised at will. Ulama’ Syafi’iyah said that to be able to marry underage boys, it was necessary to have benefit (good interests). As for girls, several conditions are needed, including:[37] There is no real enmity between the daughter and her guardian, her father, or her grandfather. There is no real enmity (hatred) between her and her future husband. The prospective husband must be kufu (appropriate or equivalent). The prospective husband can give a proper dowry. According to Ibn Shubrumah, he has a different view from the view of the majority of scholars above. Ibn Shubrumah is of the view that it is not recommended for boys or girls to be married. They can only be married after reaching the age of puberty and through the explicit consent of the interested parties.[38] The word of Allah SWT explains about age in QS. Al-Nisā’: 6: “And test the orphans until they are old enough to marry. Then, if in your opinion they are intelligent (good at maintaining wealth), then hand over to them their wealth”. Underage marriage is not recommended, considering that they are not considered to have the ability to manage property (Rusyd). Besides, they don’t need marriage either. They fear that they will not be able to fulfill the obligations that must be carried out in life as husband and wife, especially in managing household finances. As for the little girl who is widowed (either because her husband died or divorced), then her guardian is not allowed to marry her back, as well as for someone else (guardian other than the father) allowed to marry her until she is mature.[39] So, a young child who is a widow has the same position as an adult widow, that is, he gives permission when he is about to be married. “Has told us Qutaibah bin Sa’id: Has told us Sufyan from Ziyad bin Sa’ad from Abdillah ibn Al Fadhli: Have heard Nafi’ bin Jabir with news from Ibn ‘Abbas ra. that the Prophet SAW said: A widow has more rights over herself than her guardian and a virgin must be with her permission and her permission is her silence”. (HR. Muslim).[40] The Indonesian Ulema Council gave a fatwa that the age of marriage eligibility is the age of ability to act and receive rights (ahliyat al adā’ and expertyyat al wujūb).[41] Ahliyyat al adā’ is the nature of a person’s legal ability to act, who has been considered perfect to be responsible for all his actions, both positive and negative. While ahliyyat al wujūb is the nature of a person’s ability to accept the rights that are his rights, and is not yet capable of being burdened with all obligations. The scholars of the madhhab agree that menstruation and pregnancy are evidence of a woman’s puberty, pregnancy that occurs due to fertilization of the ovum by sperm, while menstruation has the same position as releasing semen for men.[42] The opinion of Imam Maliki, Imam Shafi’i, Imam Hambali, and Imamiyah is that the growth of armpit hair is proof of a person’s maturity. Meanwhile, Imam Hanafi rejects this opinion because armpit hair is no different from the hair that grows on other body parts. Balig has the meaning until or clearly. Namely, children who have reached a certain age where it becomes clear to them all the affairs or problems they face. His mind has been able to consider or clarify what is good and what is bad. The puberty period is the adult period of everyone’s life. Signs of maturity, when a man has released semen and when he has released menstrual blood or has become pregnant for a woman.[43] The start of the legal age of puberty can vary from one person to another, due to differences in environment, geography, and so on. The legal limit for puberty is when a person is 12 years old for a boy and 9 years old for a girl. While the final limit among the scholars, there are differences of opinion. According to Imam Abu Hanifa, after a person reaches the age of 18 years for men and the age of 17 years for women.[44] From the above view, Abu Hanifah’s thoughts are included in the maximum in determining a person’s age. So that view is the basis for the regulation of the Marriage Law in the State of Indonesia. For more details, we can see the minimum age limit for marriage in various Islamic countries as a result of the study of the fuqaha, as shown in the following table:[45] Table 1. Comparison of Marriage Age in Different Countries This problem is real because the case of marriage, in addition to entering into the sunna of worship called “ubudiyah”, and is a worship between humans called “mu’amalah” which, in Islamic teachings, is formed in global regulations. With this in mind, the baliq category to be able to hold a marriage must be able to interpret the term ijtihadiyah meaning, because it must carry out thoughts related to the problem of limiting the age of marriage, adjusting the circumstances of the place and time of the regulations so that they can be implemented. The perspectives of the jurists are different regarding the limitation of the age of marriage, due to the textual pradikma of the texts, both the Qur’an and hadith, as well as knowledge in contextuality based on the perspective of tradition, cultural perspective, social situation perspective, and physical perspective. The jurists of fiqh experts provide what requirements if a person wants to get married, he is already baliq. The characteristics of baliqh that are used are seen in body growth, namely, menstruation has occurred for women and men have wet dreams. However, the jurists have set limits in terms of age. But it can be remembered, both parents have an obligation to marry off their children who are not yet mature. The appropriate age provisions applied to the Marriage Age Maturation plan are a good input in realizing Maqasid Syariah to foster households.[46] The application of this can regulate the relationship between male and female partners; in keeping offspring, creating a sakinah, mawaddah, warahmah family; keep the lineage, maintain diversity in the family; set a good relationship model in the family, and regulate the economic aspect in the family. According to Ibn Kathir, the age for marriage has arrived, not based on a mature age, but on the maturity of the mind. Rasyid Ridho stated in Bulug al-Nikah that the arrival of a person to the age of marriage is to have a wet dream for men and menstruation for women. At that age, one can conceive an embryo and create a child to carry on the offspring, allowing one’s soul to immediately get married. At that age, every individual has had the burden of the regulations recorded in Islamic religious law that have been determined, both charity, worship and muamalah, and other worship. Interpreting the word “rusyd” means the feasibility of a person in carrying out tas’arruf so that he can take benefits and avoid those that are detrimental. This is a sign of the perfection of his mind.[47] Rashid Ridho agrees with Ibn Katsier’s opinion on the implementation of “rusyd”. This explains that until someone has reached the age of marriage, see the development of the body, which is already menstruating for women and wet dreams for men. According to Buya Hamka, the word Bulug al-Marriage is defined as having reached puberty. Baliqh, or maturity of one’s mind, is not focused on the age of each individual, but focuses on intelligence (intelligent) or mature thinking.[48] It is also mentioned that someone whose age is not mature allows him to be intelligent, and some people have reached the age of puberty, sometimes his thoughts are not necessarily mature. Buya Hamka’s opinion, which prefers to take the middle path, stated that the age limit is very relative, because each child is certainly not the same. In this case, the intelligence of the mind becomes the main focus, so that the time is ready for marriage. From various perspectives, according to the study, Ibn Kathir’s opinion emphasizes natural maturity and has reached baliqh. According to Rasyid Ridho and Buya Hamka, it focuses on the maturity of the mind, which looks at the behavior and nature in the life of each individual.[49] Looking at the efforts above, it explains that there have been differences in views between classical scholars and contemporary scholars in answering the question of whether or not someone is allowed to get married. The essential purpose of marriage is that it can meet most of the physical and spiritual needs and pass them to the offspring. Therefore, some things do not yet exist for a child who is not in a state of puberty. He focused his goal on marriage. In this case, Ibn Syubrumah tried to escape from the textual confines. To understand this problem, it is seen from a historical, social, and cultural review that exists in the community. In understanding the marriage of the Prophet Muhammad SAW with Aisyah r.a (who at that time Aisyah was only six years old), Ibn Syubromah’s explanation said that there was a special rule for Nabiyullah Muhammad SAW that all Muslims should not follow in the teachings of Islam.[50] According to the author of a statement from contemporary jurists, it is better to look at so that the requirements for marriage are not seen in the form of adult body development (baliqh), can also be seen in the perfection of thought and spirituality (rusyd), in paying attention to the problem of limiting the age of marriage from various perspectives. With this, marriage does not require mental readiness (biological), but psychological readiness (physical), social readiness, religious readiness, and even readiness in spiritual intelligence. Changes that occur at the age of marriage adjust from the set of all principles, thus enabling a person to be ready to live in a household that is in accordance with Islamic advice. Thus, from actions based on Islamic law, it is very contrary to the laws and regulations in Indonesia, so in the view of Islam, actions like this can be used as a form of action against national law. From that, it is clear that the studies from previous fiqh books or books were in harmony and appropriate at that time, while at this time, further in-depth discussion is needed to review the issue of legal content in legislation to realize the framework for achieving what is meant by Islamic law reform, especially at this time in the era of globalization of human civilization, which is increasingly advanced. Existence Analysis of Law Number 16 of 2019 on Age Of Marriage in Family Law Perspective According to Law Number 1 of 1974, it is explained that the meaning of marriage is an inner and outer bond between a man and a woman as husband and wife, to form a happy and eternal family based on God Almighty. If it is associated with child marriage that is not psychologically mature, then this can trigger disharmony and so on. If it is associated with child marriage, which is not psychologically mature, then this can trigger disharmony. The rules are explained in Law Number 16 of 2019 regarding the amendment to Law Number 1 of 1974 concerning marriage. Article 7, paragraph (1) of the Law states that marriage can only be carried out if the male party reaches the age of 19 years and the female party has reached the age of 19 years. The provisions on the age limit are based on the benefit of the prospective bride and groom’s household. With this age limit, it is hoped that the maturity of the two prospective brides can be achieved in running their household. Maturity in question is the maturity of the age of marriage, maturity in thinking, and acting, so that the purpose of marriage, as mentioned above, can be carried out properly. If examined further, the provisions regarding the age limit for marriage in the article appear to be more concerned with physical and biological readiness. This has not led to considering the psychological readiness of the two prospective brides. According to researchers, the age set by law, namely 19 years for boys and 19 years for girls, is still classified as a juvenile stage, where a person at this time is still in the process of growing in reaching maturity. The process of developing maturity in question includes mental, emotional, social, and physical maturity. Psychologically, adolescence is a time when children feel they are on the same level as older people. Does not include children, and also does not include adulthood. Therefore, adolescence is often called a period of self-discovery. In relation to building a happy family, the age limit regulation in the law makes it impossible to be able to consult and decide matters wisely between them, and the lack of support for their partners, due to their weak way of thinking. The purpose of marriage is to create happiness in the family. It can be achieved when the marriage is carried out by a couple who are in adulthood, which is 21 years old. The ability to master and control emotions, able to express emotions in more acceptable ways, can be achieved when someone is 21 years old, when someone enters adulthood. Although there are still emotional tensions at this time, which are related to the problems they experience, such as issues of position, marriage, finances, and so on, someone who has reached that age is more able to control his emotions. When an adult takes action, he not only relies on the impulse of lust, but also involves his mind. Channeling emotions by involving reason and common sense is a characteristic of adult behavior. In Islamic law itself, the age limit for a person who gets married is not clearly and unequivocally defined in the Qur’an and Hadith. Both of them only provide signs, conditions, and guesses about how a person is considered worthy to carry out a marriage. Muslims are given the freedom to set a minimum age limit for marriage, so that the minimum age limit for marriage is handed over to the perpetrators without violating the conditions that have been determined, and also adjusted to the social conditions in which the law is enforced. In another view, Islamic law, which regulates family affairs in particular, has been modified to be in the amendment of Law Number 16 of 2019 concerning marriage limits, which is the result of the collection and selection of various expert opinions in the field of fiqh. Of course, all the rules contained in it have reflected human values, respecting the rights of women, evenly distributed nuances of grace and wisdom, and are able to realize the benefit of all mankind. Maqāsid Syar’ah itself, which is the goal of Islamic law, has five main objectives (maintaining religion, soul, lineage, property, and reason). Everything that supports the achievement of the five main goals, he supports it and everything contrary to one of the five goals, he prevents. In marriage, the protection of offspring is one of the elements maintained by the Shari’ah to maintain and protect offspring in the world, which is to be realized from the Marriage Law. In accordance with the objectives of Islamic law, namely taking benefit and avoiding harm (jalbu al-maṣāliḥwa dar’u al-mafāsid). Therefore, marriages that are carried out at a young age need to be avoided to physically save the mother and baby from unwanted things. According to al-Ṣatiby, the shari’a stipulated as in the Marriage Law, especially in Article 7 regarding the age limit for marriage, must be able to realize the benefit of the servant (maṣāliḥal-’ibād), both in this world and in the hereafter. This benefit, in al-Ṣatibi’s view, becomes Maqāsid Syar’ah. In other words, the determination of the rule of law, both in its entirety and in detail, is based on a motive for establishing the law, namely, realizing the benefit of the servant. Mental readiness is necessary in dealing with various problems that will be experienced by married couples in their household journeys. The ability to deal with various problems that will arise in the household will be difficult when both are still in the category of teenagers aged 19 years. Therefore, adulthood is a requirement for everyone who will carry out marriage to maintain his mental readiness, and adulthood only occurs when a person is 21 years old. What is expected when the marriage occurs in adulthood, the husband and wife have been able to take responsibility, create good relationships, form a balanced relationship between the two (mu’āsyarah bi al-ma’rūf), and think with common sense. Intellect is an important part of the purpose of the Shari’ah that must be protected from its damage. Preventive efforts that are carried out by Islamic law are actually aimed at increasing the ability of the mind and guarding it from various things that harm it. The age of marriage in Islam is very concerned with the maturity between the two prospective husbands and wives. This has resulted in a prohibition against underage marriages as agreed in the legislation. This prohibition also cannot be solved by the existence of a dispensation, because the dispensation is only a case that cannot be comprehensive on the permissibility of underage marriage. Although there is a minimum age limit for marriage, in this case, it appears that Law No. 16 of 2019 on amendments to Law No. 1 of 1974 concerning marriage in Article 7 paragraph (1) has equated the age of marriage. On the one hand, it emphasizes that to get married, someone who has not reached the age of 19 years must obtain parental permission, while on the other hand, it is stated that marriage is only permitted if the man has reached the age of 19 years and the woman has reached 19 years. The difference is that if you are less than 19 years old, parental permission is required, and if you are less than 19 years old for men and 19 years old for women, you must get permission from the court. This is also reinforced in the Compilation of Islamic Law. The different age limits of maturity in the Complications of Islamic Law that should be today should not occur. First, in the Complications of Islamic Law Article 98 Paragraph (l) related to child care, which reads: “The age limit for a child who can stand alone or as an adult is 21 years, as long as the child is not physically or mentally disabled or has never been married”. While the rules of maturity in Law no. 1 of 1974 there are also have differences. For example, the first Article 6 Paragraph (2) reads: To carry out a marriage, a person who has not reached the age of 21 (twenty-one) years must obtain the permission of both parents. From the explanation of the maturity rules from both the KHI and Law Number 16 of 2019, it can be concluded that the Complications of Islamic Law are more likely to identify maturity at the age of 21 years, while Law Number 16 of 2019 is more likely to determine maturity at the age of 19 years. However, strangely, the two regulations both set a marriage age limit of 19 years for men and 19 years for women. At the age of 19, if you look at the rules of maturity in the Compilation of Islamic Law is not considered an adult and can be said to be a minor. Meanwhile, when viewed from the maturity rules of Law Number 16 of 2019, the age of men and women can be said to be adults. This later became the point of critical analysis of researchers related to the marriage age of Indonesian Muslims. The researcher concludes that if the age limit for marriage in Indonesia remains at 19 years for men and 19 years for women, while the maturity review in the Complications of Islamic Law is stated to be 2l years and in Law Number 16 of 2019 it is stated 19 years, then this is need to be discussed again. When the age of men is set at 21 years, it means referring to the maturity provisions set by the Complications of Islamic Law, while when the age of women is set at 19 years, it means referring to the maturity provisions referred to by Law Number 16 of 2019. Thus, the rules of maturity in this matter of marriage will be more compact and sustainable. Thus, for the benefit of the household to be built, researchers believe that 21 years is the appropriate age for those who are getting married. Not at the age of 19, who are still classified as teenagers who need more learning in all aspects of their lives. Someone who reaches the age of 21 years is considered to have reached maturity in his attitude, capable of acting, and responsible for what he decide. Maturity in question is the maturity of the age of marriage, maturity in thinking, and acting, so that the purpose of marriage, as described in the law, is to form a harmonious and eternal household life can be carried out properly. The purpose of Allah in enjoining His law is to maintain the benefit of humans both in this world and in the hereafter. To realize the benefit, based on the research of ushul fiqh experts, 5 main elements must be maintained and realized, the five points are:[51] Maintaining Religion (hiẓh al-dīn) Maintaining religion based on its importance can be divided into three levels: Maintaining religion at the dharuriyah level, namely maintaining and carrying out religious obligations that are included in the primary level, such as performing the five daily prayers. If the prayer is ignored, then the existence of religion will be threatened. Maintaining religion at the Hajiyah level involves carrying out religious provisions to avoid difficulties, such as congregational and qasar prayers for people who are traveling. If this provision is not implemented, then it does not threaten the existence of religion, but we only make it difficult for people who do it. Maintaining religion at the tahsiniyah level, namely following religious instructions to uphold human dignity, while at the same time completing the implementation of obligations to God, for example, cleaning the body, clothes, and place. Nurturing the soul (hifẓ an-nafs) Nurturing the soul based on the level of importance is divided into three levels: Nurturing the soul at the dharuriyah level, such as meeting basic needs in the form of food to sustain life. Maintaining the soul at the hajiyat level, such as the permissibility of hunting animals to enjoy delicious and halal food, if this is ignored, then it does not threaten the existence of human life, but only makes life difficult. Maintaining the soul at the level of tahsiniyat as stipulated in the procedures for eating and drinking. Nurturing reason (hifẓ al-`aql) Maintaining reason in terms of importance is divided into 3 levels: Maintaining reason at the dharuriyah level is like drinking alcohol because it threatens the existence of reason. Maintaining reason at the level of hajiyat, as it is recommended to seek knowledge. Maintaining the mind at the level of tahsiniyat is like avoiding imagining and listening to things that are not useful. Nurturing offspring (hifẓ an-nasb) Caring for offspring in terms of the level of need is divided into three: Nurturing offspring at the dharuriyah level, as it is prescribed for marriage and forbidden to commit adultery. Maintaining descendants at the hajiyat level, as stipulated in the provisions of mentioning the dowry at the time of the marriage contract. Maintaining offspring at the level of tahsiniyat, such as khitbah and walimah in marriage. Maintaining property (hifz al-mal) Maintaining treasure can be divided into 3 levels: Maintaining property at the Dharuriyah level, such as the Shari’a regarding the procedures for property ownership and the prohibition of taking people’s property illegally. Maintaining property at the hajiyat level, such as the Shari’a on buying and selling regarding the sale and purchase of goods. Maintain property at the level of tahsiniyat, such as the provisions to avoid deception or fraud. The maqāṣid syarīah above is a very clear picture of how to determine the ideal age limit for marriage. The ideal age limit is when marriage is carried out at that age, it is most likely that the Maqāṣid syarīah and the objectives of implementing Islamic marriage law will be realized. On the other hand, the age that is not ideal for marriage is when the marriage takes place, where it is likely that the goals of marriage will not be achieved, even if they are achieved, they will not reach their maximum limit. This is the principle of the ideal age limit for marriage. If you look at the Islamic law that was in effect at the time of the Prophet, the issue of age for marriage is not urgent, because the Prophet is a human being who is ma’um (awakened from sin) while the companions as explained by the Prophet, are like the stars if we follow in his footsteps, then we will get clear instructions. Therefore, regardless of the age of marriage for men and women, it is not an important issue to realize the objectives of Shariah law enforcement of Islamic marriage. While the rules that apply in Law Number 16 of 2019, article 7 paragraph (1) concerning marriage, that the minimum age for marriage for women is 19 years and 19 years for men, this is also based on the needs of the Indonesian people, and as a middle ground. from an age limit that is too low and an age limit that is too high. But the question is, is the actual age limit for marriage ideal for realizing the goal of legalizing marriage? Although Islamic law and positive law are declared valid, they have not been said to be ideal because they are considered unable to fully realize the goals of Sharia. The ideal marriage age is a marriage that is carried out by a man who is at least 25 years old and a woman at least 20 years old. The ideal age limit is considered to be ready and mature from the medical, psychological, social, and, of course, religious aspects, so that it can create a family in accordance with the Maqāṣid syarīah marriage law. This age limit is considered to be ready both in terms of health and emotional development to face a just family life. Thus, justice in determining the age of marriage can be interpreted as goodness, virtue, and truth, which is a moral obligation that binds members of society with one another. Justice as a value is a goal that is mutually agreed upon by members of the community and strives to achieve it for the sake of justice itself. Another meaning of justice is as a result or a decision obtained from the application or implementation of the law. Justice is also defined as an ideal element, namely as an ideal or an idea contained in all laws. An understanding of the foregoing shows that in the life of society and the state, what is in the common interest will be easily achieved if society is organized according to the ideals of justice. Justice demands that all people be treated equally, so justice is a value that embodies a balance between parts of society, between personal goals and common goals. This shows that one form of universal legal ideals is the demand for justice. The question of how to determine whether the law is fair or not. It does not depend on or is not measured by the objective criteria of justice, but is measured by what society considers fair. To understand the law that reflects the community’s sense of justice, one must first understand the true meaning of the law. According to the view held in the legal science literature, the meaning of the law is to realize justice in human life. This meaning will be achieved by the inclusion of the principles of justice in the regulation of living together. The regulation of people’s rights and freedoms using the criteria of justice shows that in humans, there is a feeling of justice that brings people to an assessment of the factors that play a role in the formation of law. This realization of the feeling of justice is not only owned by citizens but also by the authorities. Therefore, by building on the principles of justice, justice can be referred to as legal principles or legal ideas. Every community must get its rights proportionally to achieve social justice for the community. In terms of age determination, people have the right to get the justice they aspire to, because justice belongs to a person from the beginning and must return to him in the justice process, starting from physical and moral interests, relationships, and the quality of various things, both familial and social. economic, physical, and intellectual work, to things that were not previously owned or owned but were later obtained through legal means. However, because this age limit is not included in the legal requirements for a marriage, it is certainly not easy to disseminate this provision quickly and have it accepted by all parties. However, of course, this provision cannot be enforced absolutely; therefore, the existence of dispensation for those who wish to marry under the provisions of the minimum age limit that has been determined seems to still be able to be accommodated. However, of course, the government must provide clear limits on the reasons that can be used for prospective brides who are not old enough to hold a marriage, so that the legal certainty of a law can be ensured. It can be concluded, what needs to be considered is the issue of benefit, and its impact is very relevant in the public’s attention. This state of the Republic of Indonesia transforms the formation of legislation in order to make citizens aware of the law. Throwing away justice to pursue togetherness does not take risks and deliberately avoids evil so that it is lighter, even though it is threatened by even more serious harm, should be considered carefully. Avoiding inequality in the age limits of men and women in marriage, providing encouragement and role models regarding the revision of the Marriage Law, the first step in realizing togetherness to protect rights before children in Indonesia. This method prioritizes togetherness and closeness to children, so that making decisions regarding children’s rights is the responsibility of the parties involved. From that, reforming the age of marriage in the marriage law is the basis for upholding justice in the existing law in Indonesia. Conclusion The concept of the age limit for marriage in national law is stated in the Law of the Republic of Indonesia Number 16 of 2019 amendments to Law Number 1 of 1974 concerning Marriage, from actions based on Islamic law, very contrary to the laws and regulations in Indonesia. From an Islamic point of view, actions like this can be used as a form of action against national law. From that, it explains that studies from previous fiqh books or books are in harmony and appropriate at that time, while at this time more in-depth discussion is needed to review the issue of the content of the law in the legislation to realize the framework for achieving what is meant by Islamic law reform, especially at this time in the era of globalization of human civilization which is increasingly advanced. It needs to be reviewed, whether it has been effective or not yet applied to the community in marriage and how the community responds to the Marriage Law, The determination is very firm in determining what is stated in the Law of the Republic of Indonesia Number 16 of 2019 concerning Marriage, consideration of maslahah and harm is relative. The condition of the Republic of Indonesia requires stricter regulations. Creating justice for the common good so that it can create legal awareness in the Indonesian people in direct marriage regarding the provisions of adult age and marriage age for children. The issue of the minimum age limit for marriage is an area of ijtihadiyah, so it is always open to changes when conditions, society, time, and place have demanded such changes. In this regard, the author offers to reconstruct this provision to 19 years for women and 21 years for men. This is based on consideration of aspects of biological, psychological, and socio-cultural maturity. As for men, at the age of 21 years, they have fulfilled the requirements to assume responsibility and are able (rusyd) to become family leaders. Bibliography Afrianty, D. (2020). Rising public piety and the status of women in Indonesia two decades after reformasi. TRaNS: Trans-Regional and National Studies of Southeast Asia 8, No. 1. Available at: <https://doi.org/10.1017/trn.2019.14>; Saebani, B.A. (2021). Marriage in Islamic Law and Law. Jakarta: Pustaka Setia; al-Asqalāniy, A. Fath al-Bāry bi Syarh Shahīh al-Bukhāry juz IX. Beirūt: Dār al-Ma’rifah, t, th; Analiansyah, A. (2017). The Development of Legal Subjects in Islam and Its Influence on the Development of Fiqh: A Study of Islamic Legislation in Indonesia. Aricis Proceedings. Available at: <http://dx.doi.org/10.22373/aricis.v1i0.948>; Baugh, C.G. (2017). Early Ḥanafī Thought. Minor Marriage in Early Islamic Law. Brill, Vol. 41; Bougnères, P. (2002). Genetics of obesity and type 2 diabetes: tracking pathogenic traits during the predisease period. Diabetes 51 (suppl 3): Available at: <https://doi.org/10.2337/diabetes.51.2007.S295>; Bukido, R., Wantu, F.M. (2020). Synchronize The Different Law Rules Study Of Law Number 16 Year 2019 And Law Number 35 Year 2014. Journal of Legal, Ethical and Regulatory Issues 23, No. 2. Available at: <https://www.abacademies.org/articles/synchronize-the-different-law-rules-study-of-law-number-16-year-2019-and-law-number-35-year-2014-9123.html>; Cheema, S.A., Abbas, M.Z., Khan, A.U. (2018). Contribution of the Lahore High Court in The Development of Islamic Family Law in Pakistan. Journal of International Law & Islamic Law 14, No. 1. Available at: <http://dx.doi.org/10.2139/ssrn.3056579>; Djamour, J. (2021). The Muslim matrimonial court in Singapore. London: Routledge. Available at: <https://doi.org/10.4324/9781003135968>; Efevbera, Y., Bhabha, J. (2020). Defining and deconstructing girl child marriage and applications to global public health. BMC Public Health 20, No. 1. Available at: <https://doi.org/10.1186/s12889-020-09545-0>; Epstein, C.F. (2020). Woman’s place. California: University of California Press. Available at: <https://doi.org/10.1525/9780520311947>; Gesink, I.F. (2020). Intersex in Islamic medicine, law, and activism. The Routledge Handbook of Islam and Gender. Routledge. Available at: <https://www.taylorfrancis.com/chapters/edit/10.4324/9781351256568-7/intersex-islamic-medicine-law-activism-indira-falk-gesink>; Hafidzi, A., Hani, M.H.M. (2020). Wahbah Zuhaili’s and Sayyid Sabiq’s Perspective on The Principles of Marriage Contract in Indonesia. Al-’Adalah 17, No. 1. Available at: <https://doi.org/10.24042/adalah.v17i1.5387>; Hassan, M.H. (2017). Debating Various Forms of Civil Disobedience in Islam. Civil Disobedience in Islam. Singapore: Palgrave Macmillan. Available at: <https://doi.org/10.1007/978-981-10-3271-4_4>; Helim, A. (2019). Maqāṣid Al-Sharī’Ah versus Uṣūl Al-Fiqh. Yogyakarta: Pustaka Pelajar. Available at: <http://digilib.iain-palangkaraya.ac.id/id/eprint/1714>; Horii, H. (2020). Legal reasoning for legitimation of child marriage in West Java: Accommodation of local norms at Islamic courts and the paradox of child protection. Journal of Human Rights Practice 12, No. 3. Available at: <https://doi.org/10.1093/jhuman/huaa041>; Duraku, Z.H., Jemini-Gashi, L., Toçi, E. (2020). Perceptions of early marriage, educational aspirations, and career goals among Kosovar adolescents. Marriage & Family Review 56, No. 6. Available at: <https://doi.org/10.1080/01494929.2020.1728006>; Indonesian Ulema Council. (2009). Ijma’ Ulama (Decision on Ijtima’ Ulama of the Indonesian Fatwa Commission III of 2009). Jakarta: Majelis Ulama Indonesia; Inhorn, M.C., Birenbaum-Carmeli, D., Vale, M.D., Patrizio, P. (2020). Abrahamic traditions and egg freezing: Religious Women’s experiences in local moral worlds. Social Science & Medicine 253. Available at: <https://doi.org/10.1016/j.socscimed.2020.112976>; Khaidarulloh, K. (2020). Paradigm Contestation In National Legal System: A Study Of Unification Of Marital Age Regulation In Indonesia. JARES (Journal of Academic Research and Sciences) 5, No. 1. Available at: <https://doi.org/10.35457/jares.v5i1.937>; Khalfaoui, M. (2020). Current Muslim Understandings of Classical Family Law in a Modern Secular Context: Germany as a Case Study. Journal of Muslim Minority Affairs 40, No. 1. Available at: <https://doi.org/10.1080/13602004.2020.1741163>; Khalfaoui, M., Jones, J. (eds.). (2020). Islamic Family Law in Europe and Islamic World: Current Situation and Challenges. Germany: Carl Grossmann Verlag. Available at: <https://scholar.google.com/scholar?cluster=5287861661734806754&hl=id&as_sdt=0>; Lahilote, H.S. (2020). Legal Transplant in the Substance of the Authority of Religious Courts in Indonesia. JL Pol’y & Globalization 93. Available at: <https://doi.org/10.7176/JLPG>; Lei, M.K., Beach, S.R.H. (2020). Can we uncouple neighborhood disadvantage and delinquent behaviors? An experimental test of family resilience guided by the social disorganization theory of delinquent behaviors. Family process 59, No. 4. Available at: <https://doi.org/10.1111/famp.12527>; Melnikas, A., Ainul, S., Ehsan, I., Haque, E., Amin, S. (2020). Child marriage practices among the Rohingya in Bangladesh. Conflict and health 14, No. 28. Available at: <https://doi.org/10.1186/s13031-020-00274-0>; Murni, S. (2020). The Marriage Age Limit According to Indonesian Law No. 16, 2019 as Effort to Child Protection. In: International Conference on Law, Economics and Health (ICLEH 2020). Atlantis Press. Available at: <https://doi.org/10.2991/aebmr.k.200513.047>; Muslih, I., Nurdin, Marzuki. (2020). Effectiveness of Marriage Services Through Information System Management (SIMKAH) at Palu City Religious Court. International Journal of Contemporary Islamic Law and Society 2, No. 1. Available at: <https://doi.org/10.24239/ijcils.Vol2.Iss1.12>; Muslim, H.(2014). Shahih Muslim, Juz I. Bandung: Dahlan; Nasution, K. (2021). The Roles of Families in Combating Drugs Uses, Violence and Terrorism. Samarah: Jurnal Hukum Keluarga dan Hukum Islam 5, No. 1. Available at: <http://dx.doi.org/10.22373/sjhk.v5i1.9512>; Noor, Z., Lee, N. (2021). Dawud al-Fatani’s Thoughts on Marriage in Īḍāḥu l-Bāb li-Murīdi l-Nikāḥ bi-l-Ṣawāb. Hawwa 1 (aop). Available at: <https://doi.org/10.1163/15692086-BJA10019>; O’Connell, H.A., Bratter, J.L., Casarez, R.S. (2020). One drop on the move: historical legal context, racial classification, and migration. Ethnic and Racial Studies. Available at: <https://doi.org/10.1080/01419870.2020.1761554>; Perry, M.E. (2020). Gender and disorder in early modern Seville. United Kingdom: Princeton University Press; Plümper, T, Neumayer, E. (2020). Human rights violations and the gender gap in asylum recognition rates. Journal of European Public Policy. Available at: <https://doi.org/10.1080/13501763.2020.1787488>; Ghazaly, R. (2019). Fiqh munakahat, Jakarta: Prenada Media; Rasyid, R.M. (2000). Tafsir al-Manar, Juz I. Mesir: Dar Al-Qutub; Rowe, R. (2020). The reproductive microbiome: an emerging driver of sexual selection, sexual conflict, mating systems, and reproductive isolation. Trends in ecology & evolution 35, No. 3. Available at: <https://doi.org/10.1016/j.tree.2019.11.004>; Savirimuthu, J. (2020). Datafication as parenthesis: reconceptualising the best interests of the child principle in data protection law. International Review of Law, Computers & Technology 34, No. 3. Available at: <https://doi.org/10.1080/13600869.2019.1590926>; Sawai, R.P. (2020). Inculcating the Sense of Modesty (Al-Haya’) in Youth from the Perspectives of the Quran and Sunnah. Maʿālim al-Qurʾān wa al-Sunnah 16. No. 2. Available at: <https://doi.org/10.33102/jmqs.v16i2.230>; Schenk, C.G. (2018). Islamic leaders and the legal geography of family law in Aceh, Indonesia. The Geographical Journal 184, No. 1. Available at: <https://doi.org/10.1111/geoj.12202>; Sitorus, I.R., Yusmita, Y. (2020). The Age of Marriage on Interdisciplinary Islamic Law Perspectives. Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi, dan Keagamaan 7, No. 1. Available at: <http://dx.doi.org/10.29300/mzn.v7i1.3137>; Sportel, I. (2020). Moroccan Family Law: Discussions and Responses from the Netherlands. Journal of Muslim Minority Affairs 40, No. 1. Available at: <https://doi.org/10.1080/13602004.2020.1741167>; Suhargon, R., Anggeraini, F. (2021). The Juridical Review of Law Number 1 of Year 1974 on Marriage and the Compilation of Islamic Law Concerning Status of Different Religious Wedding Abroad. Legal Brief 10, No. 2. Available at: <http://www.legal.isha.or.id/index.php/legal/article/view/51>; Sultana, S., Guimbretière, F., Sengers, P., Dell, N. (2018). Design within a patriarchal society: Opportunities and challenges in designing for rural women in Bangladesh. Proceedings of the 2018 CHI Conference on Human Factors in Computing No. 536. Available at: <https://doi.org/10.1145/3173574.3174110>; Trakic, A., Tajuddin, H.H.A. (2021). Islamic Law in Malaysia: The Challenges of Implementation. Singapore: Springer Nature: Available at: <http//doi.org/10.1007/978-981-33-6187-4­_5>; Ullah, N., Abd Aziz, S.N.B., Idrees, R.Q. (2021). Child Marriages: International Laws and Islamic Laws Perspective. Journal of Educational and Social Research 11, No. 3. Available at: <https://doi.org/10.36941/jesr-2021-0051>; Wahyuningrum, D.R., Suhariningsih, S., Sulistyorini, R. (2021). Jurisdictional Implications Vagueness of Marriage Dispensation Norms in Law Number 16 Year 2019. International Journal of Multicultural and Multireligious Understanding 8, No. 7. Available at: <http://dx.doi.org/10.18415/ijmmu.v8i7.2926>; Weitzer, R. (2020). The campaign against sex work in the United States: A successful moral crusade. Sexuality Research and Social Policy 17, No. 3. Available at <https://doi.org/10.1007/s13178-019-00404-1>; Wiludjeng, H. (2020). Marriage Law in Religions. Jakarta: Penerbit UKI Atma Jaya; Zulaiha, E., Mutaqin, A.Z. (2021). The Problems of The Marriage Age Changing in Indonesia in the Perspectives of Muslim Jurists and Gender Equality. Hanifiya: Jurnal Studi Agama-Agama 4, No. 2. Available at: <https://doi.org/10.15575/hanifiya.v4i2.13538>. Footnotes [1] Djamour, J. (2021). The Muslim matrimonial court in Singapore. London: Routledge. p. 39. [2] Cheema, S.A., Abbas, M.Z., Khan, A.U. (2018). Contribution of the Lahore High Court in The Development of Islamic Family Law in Pakistan. Journal of International Law & Islamic Law 14, No. 1, p. 15. [3] Sportel, I. (2020). Moroccan Family Law: Discussions and Responses from the Netherlands. Journal of Muslim Minority Affairs 40, No. 1, p. 68. [4] Weitzer, R. (2020). The campaign against sex work in the United States: A successful moral crusade. Sexuality Research and Social Policy 17, No. 3, p. 407. [5] Muslih, I., Nurdin, Marzuki. (2020). Effectiveness of Marriage Services Through Information System Management (SIMKAH) at Palu City Religious Court. International Journal of Contemporary Islamic Law and Society 2, No. 1, p. 25. [6] O’Connell, H.A., Bratter, J.L., Casarez, R.S. (2020). One drop on the move: historical legal context, racial classification, and migration. Ethnic and Racial Studies, p. 10. [7] Khalfaoui, M. (2020). Current Muslim Understandings of Classical Family Law in a Modern Secular Context: Germany as a Case Study. Journal of Muslim Minority Affairs 40, No. 1, p. 121. [8] Khaidarulloh, K. (2020). Paradigm Contestation In National Legal System: A Study Of Unification Of Marital Age Regulation In Indonesia. JARES (Journal of Academic Research and Sciences) 5, No. 1, p. 48. [9] Murni, S. (2020). The Marriage Age Limit According to Indonesian Law No. 16, 2019 as Effort to Child Protection. In: International Conference on Law, Economics and Health (ICLEH 2020). Atlantis Press, p. 226. [10] Horii, H. (2020). Legal reasoning for legitimation of child marriage in West Java: Accommodation of local norms at Islamic courts and the paradox of child protection. Journal of Human Rights Practice 12, No. 3, p. 510. [11] Schenk, C.G. (2018). Islamic leaders and the legal geography of family law in Aceh, Indonesia. The Geographical Journal 184, No. 1, p. 16. [12] Wahyuningrum, D.R., Suhariningsih, S., Sulistyorini, R. (2021). Jurisdictional Implications Vagueness of Marriage Dispensation Norms in Law Number 16 Year 2019. International Journal of Multicultural and Multireligious Understanding 8, No. 7, p. 568. [13] Epstein, C.F. (2020). Woman’s place. California: University of California Press, p. 86. [14] Bukido, R., Wantu, F.M. (2020). Synchronize The Different Law Rules Study Of Law Number 16 Year 2019 And Law Number 35 Year 2014. Journal of Legal, Ethical and Regulatory Issues 23, No. 2, p. 4. [15] Duraku, Z.H., Jemini-Gashi, L., Toçi, E. (2020). Perceptions of early marriage, educational aspirations, and career goals among Kosovar adolescents. Marriage & Family Review 56, No. 6, p. 515. [16] Suhargon, R., Anggeraini, F. (2021). The Juridical Review of Law Number 1 of Year 1974 on Marriage and the Compilation of Islamic Law Concerning Status of Different Religious Wedding Abroad. Legal Brief 10, No. 2, p. 198. [17] Nasution, K. (2021). The Roles of Families in Combating Drugs Uses, Violence and Terrorism. Samarah: Jurnal Hukum Keluarga dan Hukum Islam 5, No. 1, p. 36. [18] Savirimuthu, J. (2020). Datafication as parenthesis: reconceptualising the best interests of the child principle in data protection law. International Review of Law, Computers & Technology 34, No. 3, p. 324. [19] Lahilote, H.S. (2020). Legal Transplant in the Substance of the Authority of Religious Courts in Indonesia. JL Pol’y & Globalization 93, p. 135. [20] Suhargon, R., Anggeraini, F. (2021). The Juridical Review of Law Number 1 of Year 1974 on Marriage and the Compilation of Islamic Law Concerning Status of Different Religious Wedding Abroad. Legal Brief 10, No. 2, p. 198. [21] Hafidzi, A., Hani, M.H.M. (2020). Wahbah Zuhaili’s and Sayyid Sabiq’s Perspective on The Principles of Marriage Contract in Indonesia. Al-’Adalah 17, No. 1, p. 197. [22] Inhorn, M.C., Birenbaum-Carmeli, D., Vale, M.D., Patrizio, P. (2020). Abrahamic traditions and egg freezing: Religious Women’s experiences in local moral worlds. Social Science & Medicine 253, 112976. [23] Saebani, B.A. (2021). Marriage in Islamic Law and Law. Jakarta: Pustaka Setia, pp. 11-12. [24] Hassan, M.H. (2017). Debating Various Forms of Civil Disobedience in Islam. Civil Disobedience in Islam. Singapore: Palgrave Macmillan, p. 85. [25] Noor, Z., Lee, N. (2021). Dawud al-Fatani’s Thoughts on Marriage in Īḍāḥu l-Bāb li-Murīdi l-Nikāḥ bi-l-Ṣawāb. Hawwa 1 (aop), p. 1. [26] Perry, M.E. (2020). Gender and disorder in early modern Seville. United Kingdom: Princeton University Press, p. 14. [27] Plümper, T, Neumayer, E. (2020). Human rights violations and the gender gap in asylum recognition rates. Journal of European Public Policy, p. 3. [28] Ghazaly, A.R. (2019). Fiqh munakahat, Jakarta: Prenada Media, p. 11. [29] Sitorus, I.R., Yusmita, Y. (2020). The Age of Marriage on Interdisciplinary Islamic Law Perspectives. Jurnal Ilmiah Mizani: Wacana Hukum, Ekonomi, dan Keagamaan 7, No. 1, p. 4. [30] Bougnères, P. (2002). Genetics of obesity and type 2 diabetes: tracking pathogenic traits during the predisease period. Diabetes 51 (suppl 3), S295-S303. [31] Zulaiha, E., Mutaqin, A.Z. (2021). The Problems of The Marriage Age Changing in Indonesia in the Perspectives of Muslim Jurists and Gender Equality. Hanifiya: Jurnal Studi Agama-Agama 4, No. 2, p. 99. [32] Melnikas, A., Ainul, S., Ehsan, I., Haque, E., Amin, S. (2020). Child marriage practices among the Rohingya in Bangladesh. Conflict and health 14, No. 28, p. 8. [33] Analiansyah, A. (2017). The Development of Legal Subjects in Islam and Its Influence on the Development of Fiqh: A Study of Islamic Legislation in Indonesia. Aricis Proceedings, p. 1. [34] Afrianty, D. (2020). Rising public piety and the status of women in Indonesia two decades after reformasi. TRaNS: Trans-Regional and National Studies of Southeast Asia 8, No. 1, p. 66. [35] Sultana, S., Guimbretière, F., Sengers, P., Dell, N. (2018). Design within a patriarchal society: Opportunities and challenges in designing for rural women in Bangladesh. Proceedings of the 2018 CHI Conference on Human Factors in Computing Systems. No. 536, p. 5. [36] Muslim, H. (2014). Shahih Muslim, Juz I. Bandung: Dahlan, p. 45. [37] Wiludjeng, H. (2020). Marriage Law in Religions. Jakarta: Penerbit UKI Atma Jaya, p. 10. [38] Efevbera, Y., Bhabha, J. (2020). Defining and deconstructing girl child marriage and applications to global public health. BMC Public Health 20, No. 1, p. 7. [39] Baugh, C.G. (2017). Early Ḥanafī Thought. Minor Marriage in Early Islamic Law. Brill, Vol. 41, pp. 78-102. [40] al-Asqalāniy, A. Fath al-Bāry bi Syarh Shahīh al-Bukhāry juz IX. Beirūt: Dār al-Ma’rifah, t, th, p. 184. [41] Indonesian Ulema Council. (2009). Ijma’ Ulama (Decision on Ijtima’ Ulama of the Indonesian Fatwa Commission III of 2009). Jakarta: Majelis Ulama Indonesia, p. 78. [42] Gesink, I.F. (2020). Intersex in Islamic medicine, law, and activism. The Routledge Handbook of Islam and Gender. Routledge, pp. 116-129. [43] Rowe, R. (2020). The reproductive microbiome: an emerging driver of sexual selection, sexual conflict, mating systems, and reproductive isolation. Trends in ecology & evolution 35, No. 3, p. 224. [44] Ullah, N., Abd Aziz, S.N.B., Idrees, R.Q. (2021). Child Marriages: International Laws and Islamic Laws Perspective. Journal of Educational and Social Research 11, No. 3, p. 60. [45] Khalfaoui, M., Jones, J. (eds.). (2020). Islamic Family Law in Europe and Islamic World: Current Situation and Challenges. Germany: Carl Grossmann Verlag, p. 91. [46] Lei, M.K., Beach, S.R.H. (2020). Can we uncouple neighborhood disadvantage and delinquent behaviors? An experimental test of family resilience guided by the social disorganization theory of delinquent behaviors. Family process 59, No. 4, p. 1801. [47] Rasyid, R.M. (2000). Tafsir al-Manar, Juz I. Mesir: Dar Al-Qutub, pp. 396-397. [48] Trakic, A., Tajuddin, H.H.A. (2021). Islamic Law in Malaysia: The Challenges of Implementation. Singapore: Springer Nature, p. 43. [49] Rasyid, R.M. (2000). Tafsir al-Manar, Juz I. Mesir: Dar Al-Qutub, pp. 396-397. [50] Sawai, R.P. (2020). Inculcating the Sense of Modesty (Al-Haya’) in Youth from the Perspectives of the Quran and Sunnah. Maʿālim al-Qurʾān wa al-Sunnah 16. No. 2, p. 25. [51] Helim, A. (2019). Maqāṣid Al-Sharī’Ah versus Uṣūl Al-Fiqh. Yogyakarta: Pustaka Pelajar, p. 24.
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Response to Incitement: Call for Algeria Sanctions (International Legal Analysis)
The consequences of the war in Ukraine have reached beyond Europe, significantly impacting regions such as the southern Mediterranean. Within this geopolitical context, Algeria—although maintaining a neutral stance in the conflict—is often perceived by Western actors as a longstanding ally of Russia. This perception has triggered political reactions in the United States, particularly among a minority group in Congress led by Representative McClain, who has suggested the possibility of imposing sanctions on Algeria. This article explores the legal nature and potential implications of such a proposal, questioning its validity and examining its alignment with international law. In doing so, we aim to assess whether the proposed measures fall within the permissible boundaries of unilateral coercive actions or constitute an overreach with no solid legal foundation. Moreover, this paper critically evaluates the broader impact of the report on regional stability, arguing that it may contribute to escalating tensions in an already fragile geopolitical landscape. Keywords: Report, sanctions, American Congress, international law, protection. Introduction The war in Ukraine has revealed some weaknesses and even some disorder in the joint American-European reaction. It is above all a question of the somewhat soft approach of the Franco-Italian German trio compared to its hard corollary from the USA, notably under the auspices of the former Biden administration, the United Kingdom and the rest of the EU, especialy the eastern bloc of Europe, such as Poland and the Baltic countries. About this war, its beginning was marked by condemnation of the act of aggression coming from Russia and altering the sovereignty of a UN member country (UN/GA/12407, 2 March 2022).[1] And subsequently, some authors tried to justify the American interference by looking for some legal arguments in this sense, such as the reference made to the rules of jus ad bellum.[2] In addition, and still within the framework of international law, there was also the thesis of self-defense by Ukraine against Russian military intervention, advanced in the context of general interference from the West. However, the problem that remained here was that supplying arms to Ukraine would still be inconsistent with the principle of neutrality of States during an armed conflict, knowing full well that Ukraine is not part of NATO and therefore is not protected by this politico-military organisation.[3] Beyond the American-European reaction and that of the members of NATO, it is perhaps better to return to the meeting of the general assembly of the UN aforementioned, where a lot of States abstained from the condemnation explicitly from Russia. Among these countries, there are global economic forces like China and India, and other fluctuating medium-sized regional powers like Iran and even Algeria in the southwest of the Mediterranean. To tell the truth, we are talking about countries with a non-Western culture. About Algeria, it started to be affected by the war in Ukraine through the energy crisis. Indeed, the Russian economic counterattack, consisting of blocking the gas lines (Nordstream 1 and 2) supplying the EU Member States, has pushed them towards other suppliers such as Algeria. It should be noted that this country is already linked to the EU and its Member States by the association agreement,[4] especially article 61 (energy and mining), putting the development of gas transit among the objectives of cooperation in the field of energy and mining. Thus, the word gas is cited 24 times as a product benefiting from the preferential rights granted by the Community to products originating in Algeria. Following the aggravation of the energy crisis, the United States of America and through its ex-Secretary of State for Foreign Affairs Antony Blinken who visited Algeria, asked the authorities of this country to increase its exports gas to EU Member States.[5] For its part, Algeria, which is the third supplier of gas to the EU, has responded by these technological incapacities to double its production, although this country has reassured France and before it Italy to do its best to partially remedy the Russian part in the market of these two EU member states. Despite this, soon after Mr. Blinkin’s return was accompanied by an official non-executive approach from a parliamentary minority arguing for the imposition of some sanctions to the detriment of Algeria, and which we will expose the content with more comment (I). Then, we will criticize through legal arguments this same report, tending to intensify the tensions that risk generalizing potential armed conflicts in the southwestern part of the Mediterranean Sea (II). Finally, we are looking for a few arguments along the lines of advocating for the protection of medium-sized countries. We specify that these are located at the gate of a great power or a military alliance (III). 1. Algeria Sanctions: McClain’s Bipartisan Call against Algeria As a reminder of the report calling for the imposition of economic sanctions against Algeria, we quote that on September 30, 2022, twenty-seven U.S. lawmakers led by Republican congresswoman Lisa McClain took this initiative; hence, we wonder about the legal nature of the said report and especially about its scope. At first glance, it is an internal non-binding text that does not reflect the majority of the votes of the American Congress, but more or less, it approaches the legal nature of a recommendation. Recommendations allow an institution or body to make their views known and to suggest a line of action without imposing any strict legal obligation on those to whom the recommendation is addressed, who may be high-ranking state officials, like the US Secretary of State for Foreign Affairs in our case, or other institutions or citizens. We will present this definition following an analogy made to a few articles of the Treaty on the Functioning of the European Union (TFEU).[6] It seems reasonable to us to make this analogy given that the United States of America is a federal state and that the EU, which tends more and more towards integration, is therefore approaching the model of a federation of states. As for the content of this appeal, it emphasizes the American federal law called Countering America’s Adversaries Through Sanctions Act (CAATSA),[7] and is intended for countries that are enemies of America, or even countries cooperating on a military level with anti-American countries or organizations. It should be noted that Algeria was not the first country cited in such a report because Iran, North Korea, and even states supposedly considered good allies were the subject of similar calls, and this is the case with Turkey and Egypt, which bought S-400 anti-missiles and Sukhoi-35 fighter planes, respectively, from Russia. Russia was really the subject of sanctions since 2018, i.e. even before its military intervention in Ukraine, these sanctions came as a result of Russian cyber-activities. However, Russian cyber attacks are part of its armed operation in Ukraine even if they are criticized in terms of their inability or insufficiency from american and Western point of view,[8] and of which we do not always share the same opinion. If we insist so far on Russia it is to understand what link maintains the impact of the operation carried out by this country in Ukraine with the elaboration by some members of the US Congress of the report which calls for sanctioning Algeria in reference to CAATSA and especially for see further if this is sufficiently justified legally, knowing well that we are within the framework of the internal American legal order and not necessarily with reference to and in accordance with international law.[9] It is therefore to CAATSA text that we must return to seek out and examine the American arguments which revolve around Algeria’s military cooperation with Russia. This cooperation described as strategic and materialized by a bilateral international agreement but it goes back to a period preceding the Russian war in Ukraine, so it is a real Algerian-Russian partnership and/or association which has several facets, that is to say it covers several military aspect and other fields,[10] hence the question on the real causes of the advent or rather the elaboration of the said report. We can say that American fears do not necessarily stem from Algerian-Russian military cooperation alone because Algeria is located in an area traditionally considered to be dependent on NATO’s field of maneuver, and Algeria does not constitute a threat to this politico-military entity or its member states. On the other hand, the said report of the American Congress intervened to put pressure on Algeria and to prevent it from joining BRICS, in particular because this country has explicitly embarked on this path. For Algeria, this initiative is only a means of protecting itself against the excesses of the Arab spring which has overwhelmed a lot of countries belonging to the same region and consequently the Algerian ambitions to integrate the BRICS have no visible link with the Ukrainian crisis, nor with the attempt to weaken the US dollar, nor for that matter contribute to the new theory of the multipolar world. So to prevent any degradation in Algeria, such as that experienced in Libya, Syria, or in the rest of the countries, which have experienced instability due to the external conspiracy of the Arab Spring, Algeria is required to reflect on enhanced multi-faceted cooperation with the BRICS. A balanced association that departs from the Euro-Mediterranean model and takes into account the Algerian-Russian strategic partnership, which reflects a confirmed geostrategic agreement model. This, without neglecting, of course, the history, which preceded this partnership on the legal and political levels. To clarify this situation, we talk about Algeria as a third country to BRICS, but also and above all a medium-sized regional player, which maintains good historical relations with the member states of this entity. We aim here first Russia, then China, South Africa, and India, without neglecting Brazil. Although we try to take advantage of bilateral Algerian-Russian relations in view of their visibility. Moreover, it seems reasonable to take the Algerian-Russian cooperation forward as a first step towards the association between Algeria and BRICS, without harming Western interests. In a legal context, access to a possible association agreement between Algeria, on the one hand, and BRICS and its member states, on the other hand, is justified by the current situation in this North African country. Indeed, Algeria is linked to the European Union and its member states by the Euro-Méditerranéen Association Agreement. It should be noted that the outcome of this international convention followed the weakening of Algeria during the black decade (from 1992 to 2002). This has weakened the Algerian position in negotiations with their European counterparts since the start of the Barcelona process, known as the 5 + 5 jargon. The result was the ratification of an agreement that did not serve Algerian interests well, knowing full well that it imposes only European values ​​on the Algerian side and that in a single direction. This embarrassing international conventional situation which makes any Algerian attempt to get closer to Brics minimal is doubled by the degrading security situation in neighboring Libya, triggered by France, supported by NATO and aggravated by Turkish interference, also a member of the NATO. Coming to this serious stage of the attack on the principle of state sovereignty, Algerian security fears from certain countries have finally become legitimate. In this sense and to better express this situation, “The realities of international relations show that this practice was manifested in the inability of the U.N. Security Council to prevent NATO military intervention in Libya».[11] Consequently, a minimum of rapprochement of Algeria with BRICS seems essential, in particular that certain countries of this entity, such as Russia and China, had a joint reaction on any refusal of foreign interference whatsoever in the Algerian neighborhood. On the other hand, we present this idea of ​​a common policy with the reservation because even within the member countries of this organization, the geostrategic external policies do not always aim at the subject of unanimity.[12] For what has been said, can we consider the report made by a minority of the American parliamentarians in the future to have consequences similar to those of the Russian decrees by which the Russian Federation considered Donbass as part of its national territory on the eve of its annexation by military force? 2. Legal Criticism: NATO Southwest Mediterranean Conflict Incitement First on board, it is known that the organization of international society is carried out by supra-national legal texts, although in reality, there is no real authority that takes precedence over that of the States. This means that the international institutions are found in a juxtaposed and non-hierarchical pattern and that their creation is only the result of an agreement between States, which explains the existence of a kind of solidarity between these international institutions, despite of their vocation, whether universal or regional.[13] To tell the truth, the application of an international text issued by an organization is the consequence of a state’s consent, which is reflected in the classic process of the signature, then the ratification of the same legal text. But what about a national text or judgement coming from an institution of a purely national nature and which pleads for the extraterritorial effect of a domestic law or decision? This question on which we try to answer, concretizes the practical aspect of our article; in particular, that the writers of the report, coming from an American parliamentary minority guided by Mrs. Lisa McLaine, want to give it an extraterritorial effect. Specifically, they want to subtract international sanctioning authority by viewing it as part of a rather American national sphere. Before going any further with this analysis and watching over its consequences on the international scene, we prefer to pause before a few antecedents, whether it be a legislative or judicial act. On the history of this practice, it is important to examine some examples like the arrest warrant issued by a Belgian judicial court against a former senior official of the Democratic Republic of Congo, whose name is Yerodia.[14] The negative point in this case, which was decided by the International Court of Justice (ICJ), consists in the absence of any detail on the legality of the universal jurisdiction recognized by a Belgian national court. The reasoning of the ICJ was content to observe that this question was not contained in the final submissions of the Parties. Even if the ICJ showed rigor when it attributed more importance to the primacy of the rules of international law to the detriment of their corrolaries of domestic law (Belgian legal rules relating to universal jurisdiction in criminal matters), some authors were a little skeptical and saw at the time in the position of the high international court a kind of hampering the development of international criminal law.[15] On this same idea of ​​universal jurisdiction that Belgium was criticized for, this country was finally convinced to remove this notion from its national legislation, and this time after a diplomatic incident with Israel following a Belgian attempt to try Ariel Sharon for crimes under international criminal law in accordance with this universal jurisdiction. If Belgium ended up admitting the primacy of international law by renouncing the rules of universal jurisdiction in its national legislation, is this the case for other countries, especially Russia and the United States of America? The answer is of course negative and we argue our opinion by the elaboration of the report coming from a minority of the members of the American Congress and which is the subject of this study, knowing well that Algeria counted until a period recently a trustworthy ally for the United States in its quest to fight terrorism. Yes, in this sense, the United States, which once drew up an anti-terrorism law (Patriot Act),[16] has completely changed its position towards new adversaries and always by legal means, which are legislative texts and reports. In a similar step, the Soviet Union, which defended the principle of the proletariat in Eastern Europe and Afghanistan, this time preceded its war in Ukraine by a new legislative legal step consisting of considering the Donbas sheltering a strong Russian community as a territory divided between two independent republics of Ukraine. Again, Russia and by presidential decree, annexed Donbass and two other regions of southern Ukraine.[17] In response, the United States, which has been quick to provide military support to Ukraine, has spared no legislative effort to put pressure on Algeria, Russia’s strategic ally located at the southwestern gate of the Mediterranean. Have legislative texts become a means of instrumentalization and proliferation of wars? Before answering this question, we will refer to two internal legal texts, one of which is American, the other is Russian. Unfortunately, the condemnation of this practice, which results in the attack on the sovereignty of a member country of the United Nations by another more powerful one, and which is carried out through a presidential decree or by internal legislation, has not been criticized as strongly as towards Russia. To clarify this observation, until now, the international society, which is very busy with the war in Ukraine and the gas crisis resulting from Russian countermeasures towards the EU, has considerably neglected the irresponsible practices of the Biden administration, which tolerates the steps aimed at sanctioning some countries. These are, of course, the countries that have traditionally counted in the pro-Russian camp, and this is the case of Algeria, which continues to be subjected to pressures of this type and of which the aforementioned report, directed by the congresswoman Lisa Mac Laine, is proof. In this regard, if the tracing of the provisions and principles of international law has been done until now to the detriment of the Third World countries, from now on, the competition between the West and the new emerging Eurasian component will take the lead in changing this state of affairs. All that we have mentioned about the indifference of the leading states of the international community towards the UN Charter and those who prefer to take refuge in internal legislative or executive practices is only a maneuver to prolong conflicts in the world. In reality, the law has become a mere means of doing things for the great powers that are fighting in a world that is slowly transforming from monopolistic to multipolar. Unfortunately, the legal follows the political, and thus the failure of certain legislative, executive, or even judicial bodies in a given country to respect the provisions of international law remains insufficient to justify the drafting of the report calling for sanctions against Algeria. It is thus a competition between the American theory of the intensification of conflicts traditionally supported by the old fox Kisenjer and that of a multipolar world defended by Dugin, who remains faithful to the return of the polar balance. We note that this theory has been strongly supported to explain the proliferation of conflicts in the world, but also been framed by other authors. Among these, we cite Avi Cober, who has attempted both to assess the crystallization of low-intensity theory and to consider how to bridge the gap between the importance of low-intensity conflict and hedging theory, if any.[18] The explicit link between the report written on the initiative of Ms. Lisa McLaine in collaboration with other members of the American Congress, on the one hand, and the theory of low-intensity conflict, on the other, testifies to a practice that has become common and which is the politicization of the law. Unfortunately, the law has become a means that serves political ends, and we find this normal as long as the powerful States deviate more and more from the fundamental principles of international law, such as are enshrined in the Charter of the United Nations. As a result, we move from the internationalization of domestic law to the nationalization of international law through sanction by domestic texts, under the influence of a state policy within a powerful country. To illustrate this situation which consists in the nationalization of international law, i.e. settle transnational, or even international, conflicts or disagreements between traditional entities of international law by the provisions of domestic law (legislation or parliamentary report as in our case), we insist on the qualification of the term “military activity” in some States, whose same operation is considered an act of war or even an actual invasion, violating the sovereignty of the invaded country. The occupying or invading state most often pleads for military activity to the detriment of war,[19], which shocks people’s minds. By way of illustration, the Americans adopted the jargon “military activity” in Afghanistan, Iraq, Syria, and for any armed operation carried out by this country. And yet, the legal trace is not completely ruled out. The conception of military activities stems from the lack of precision of the international standard. Therefore, once it fails international compromise, the obligation of precision unfortunately falls on states. And it is fulfilled on an intra-state level, through a national law, for example, the American law on “Authorization for the Use of Military Force”. Since 2001, the Americans have considered any Islamist military group located abroad as a threat that requires American military activity on the territory where this militia is located.[20] According to this purely state authorization, the legal margin is national through the anticipated control of legal conformity of the military intervention. Similarly, the Russian Parliament, after recognizing the self-proclamation of the two republics of Donetsk and Lugansk by confirming presidential decrees, decided to intervene on Ukrainian soil. A struggle that aims to isolate the Azov brigades of the Ukrainian far right, supported by mercenaries and Western military experts from NATO, according to the Russian version. However, the interpretation, or rather the control of this Russian national law, like its American predecessor, should not be exclusively national. The effects of the said intervention occur on a supranational level, where the interest of the international community is not necessarily preserved. And therefore, a strict minimum embodied in international judicial control seems essential. We are in the presence of the judicial assessment of the military act by an international body, such as the International Court of Justice. Let’s go back to Mrs. Mc Lain’s report, it fits into the context of putting pressure on Algeria, which adopted a vision close to Russia and China and which implicitly sees in the Russian intervention in Ukraine a simple military activity, whereas it saw in the American operations carried out in Moslem countries an invasion violating the territorial integrity of these countries in reference to the UN Charter. Beyond law and politics, it may be necessary to go back to the history of conflicts to understand the source of each vision. For the American and Western vision on the Russian military intervention in Ukraine, Mr. Timothy Snyder and although he recalled the various Russian attempts to annex Ukraine, strongly denied the saying that history repeats itself, because he wanted to give a new essence to human action to change the real datum of the invasion.[21] However, this does not prevent us from borrowing the same historical touch from Mr. Snyder to explain the elaboration of the American report wanting to condemn Algeria and subsequently impose economic sanctions against it, with reference to CAATSA. Unfortunately, this vision testifies to the continuity of the difficult and complex relations between the West and Algeria, with a few rare exceptions during short periods under the Kennedy (JFK), Clinton and Trump administrations and whose American tendency was based on the pacification of relations by preserving the American economic interest above all, unlike the Biden administration which opts for radical armed solutions. Similarly, the Russian or even Eurasian vision sees in the European and Western intervention in the Arab world, including Algeria and North Africa, a real invasion destroying the religious values ​​of these Muslim-leaning countries. As a result, the US parliamentary report against Algeria conceals an ideological and historical conflict between the West, on the one hand, and Russia and its allies, on the other, although it intervened in legal form. Consequently, a possible American or North Atlantic military action against Algeria will be treated by the member states of NATO as a simple special operation for the democratization of this country. On the other hand, this same act will surely be qualified as an invasion violating the sovereignty of this country according to the legal reasoning of Russia, China, and the other allied states of these two countries. In short, in all these hypotheses, Algeria, like Ukraine and formerly Libya, Syria, Yemen, Afghanistan, Nicaragua, Vietnam, etc., needs stronger protection under international law. This need remains urgent, especially since these countries constitute border areas of conflict of interest between the East and the West.[22] Still in the context of explaining the drafting of a report, the initiative of which dates back to an American parliamentary minority led by Ms. Lisa McLaine, it is important to insist on the fact that the political and historical visions materialize through the legal vision which in turn reflects the conflict between domestic law and international law. This concretization has been advanced in the context of post-Soviet countries, including Ukraine, through the means of conceptualizing troubles or troubled links to explore the relationship between international law and national law.[23] On the other hand, such an analysis is rare in the case of Arab countries, which previously suffered the same fate as Ukraine. We are content to say that the link between the internal order and the international order must be interpreted with reference to the principles of international law, in particular that of justice, equity, and good faith, without any historical influence. or political, but this requires an international compromise between the great powers. Moreover, it is important to trigger the alert for the Algerian case even if the latter was not the first to be the subject of a report of a parliamentary nature referring to the sanctions included in the CAATSA. On the other hand, if Egypt and Turkey, which were subject to similar sanctions, did not incur enough risk in terms of the use of armed force against them, Algeria must be worried. Indeed, this country remains in the eyes of NATO and the West in general, the geostrategic ally of Russia in the southwestern region of the Mediterranean. This reality alone constitutes a possibility of creating, in the short or medium term, an armed conflict controlled by the United States of America, the aim of which is both to put pressure on Russia and to extend the sphere of influence of NATO further south in the Mediterranean, to the detriment of the new Eurasian alliance. For this, what protection for Algeria and States in a similar situation from the point of view of international law and international politics? 3. Advocate for Safeguarding Medium States at Great Power Borders Will the re-emergence of the bipolar world, the West and the Eurasian Alliance, push Algeria more and more towards Russia and its allies to protect itself from Western pressure which is becoming gradually accentuated, as it was the case for Ukraine, which has found refuge near the United States and the European Union against Russia? But first of all, is this comparison or similarity between Ukraine before the war or on the eve of the Russian military intervention, on the one hand, and Algeria, on the other hand, credible? Then, what are the means offered to Algeria to protect itself against a possible military intervention, knowing that apart from the non-binding nature of the report of the American Congress calling for the application of sanctions against Algeria, the threat of Western interference remains real in a tense international political climate? The answer to these questions, which will be analyzed on the two legal and political levels, requires a precision that relates to the definition of the average or modest State being on the doorstep of a great power, or a military alliance. Thus, it will be necessary to resort to examples, through international practice and previous events. To do this, we wonder about the criteria to be used to know which countries are concerned by this possible protection. The precision of the notion of “third State” is most often resolved by what is called the negative delimitation of the said concept. Consequently, any third State is considered to have this quality vis-à-vis an international agreement and therefore towards an organization created by this same agreement. In this sense, Article 2 of the Vienna Convention on the Law of Treaties states in its point 1-h) that “for the purposes of this Convention “third State” means a State not a party to the treaty”.[24] More positively now, the concretization of the aforementioned definition implies that Algeria is considered as a third State with regard to the Washington Treaty - or North Atlantic Treaty which is the base of the North Atlantic Treaty Organization (NATO ) because this country is not a signatory member in the said agreement and even more, we can put forward two criteria to clarify the concept of the third State and which are the neighborhood, but above all the distinct or romantic interest between these two parties ( Algeria and NATO). It is this same remark that also applies to Ukraine vis-à-vis Russia, in particular that the first constitutes the geostrategic extension for the second as a powerful country and also for the Shanghai Cooperation Organisation (SCO),[25] especially in its two military and economic aspects. The purpose of this organization is to deepen partnerships, taking into account the strategic interaction between China and Russia, and to expand cooperation between this hard core and the countries of Eastern Europe, including Ukraine, in various fields. We note at this stage that Ukraine has opted for a rapprochement with the West to the detriment of its rather Slavic Eurasian space. The same for Algeria, which has a tendency towards the East justified by its history, while it is located at the southwest door of Europe and NATO. On the history of these situations, Cuba has provided a good illustration of a country’s revolt against an American attempt to impose or continue to impose liberal Western values ​​in that country, which led to a political crisis and limited US military intervention in Cuban territory.[26] At that time, the Soviet Union did not hesitate to give its politico-military support to Cuba as the United States is doing today to Ukraine. The reproduction of this same scenario is not ruled out for good for Algeria, and to understand it legally, we will use some articles that appear in the Vienna Convention on the Law of Treaties. The essence of these texts is summarized in the reciprocal rights and obligations between the powerful State and/or the neighboring Organization to the third State, whose interest is not common. These are Articles 35 and 36 of the Vienna Convention on the Law of Treaties, referring respectively to the obligations and rights of the third State,[27], subject of our study. Who says obligation and right says that the protection of the third State is not absolute. The reflection of obligations and rights between a great power and a neighboring third State practicing a policy that does not conform to the expectations of the great power is reflected on the political level by the interplay of the intensity of low-intensity conflicts and finding refuge in the country’s adversary or enemy. To tell the truth, if Ukraine or even before Cuba sought to find refuge in article 36 of the Vienna Convention and to take advantage of American-European aid (for Ukraine) or formerly Soviet support (for Cuba), these same two countries of modest size have found refuge with one of the great powers with which they share the same values ​​(Cuba/Soviet Union, on the one hand and Ukraine/United States, EU and other Western-leaning countries). And yet, this balance between rights and obligations of the medium-sized State, divided between legal and political arguments, and which does not offer sufficient protection to this State against the danger arising from any possible military penetration against it, Western threats unveiled against Algeria, has allowed customary law to intervene to have its say. It is a question here of Article 37 of the Vienna Convention, which takes up the sharing of obligations and rights between a powerful State and/or a powerful organization, on the one hand, and a third State, but with reference to customary law.[28] This article strengthens the protection of the third State by relying on the principles of international law, influenced in turn by the political context whose basis comes from force, hence the question of the relationship between law and power internationally.[29] What is disappointing in terms of international law protection of medium-sized countries against visible pressure, for example a report calling for the application of economic sanctions, which gradually turns into military intervention from a large power or a military alliance, is that the “partial” assistance of international society remains after the act of aggression, or more or less after the attack on the sovereignty of the State subject to sanctions and/or ground of the armed operation in a following stage. This situation is common in international law, and it is the decision of the International Court of Justice that is authentic, in its judgment known as American military and paramilitary activities on the territory of Nicaragua and against it. The first legal obstacle in the face of such actions arises in terms of the legal qualification of the operation in question. In other words, are we in the presence of a simple military activity, alias special operation, or a real war? The disadvantage of a firm answer to this question in international law aggravates the situation within the State subject to intervention (Cuba, Nicaragua, Iraq, former Czechoslovakia, Hungary, and finally Ukraine). Coming back to the Nicaragua case, the ICJ did not express explicit reservations on the use of the aforementioned term, although the international high court has repeatedly used synonyms going in the direction of war. This is the case, for example, of the use of “force”[30] against another State, as well as “attacks”[31] carried out on foreign territory. The most important thing in this case is that the ICJ avoided using the word war, which appears only three times as a reminder in reference to former armed conflicts, or by limiting itself to revealing acts contrary to the law of war. For what has been said, the medium-sized state is obliged to seek its protection by developing a policy of self-defense.[32] The Turkish experience demonstrates a hitherto unprecedented success of this country, which is on the southwestern border of both Russia and the Eurasian alliance. This country, like Algeria, was the subject of a parliamentary report calling for sanctions against it following its attempt to acquire Russian S-400 missiles. These sanctions were subsequently abolished by the Trump Administration. Moreover, this country has successfully normalized its relations with its unstable geographical environment. In short, Algeria is led to guarantee its self-defense by the balance of its external relations, without losing Eurasian support. Borrowing from a common view in private law, the medium-sized country that finds itself on the doorstep of a great power or military alliance has a status similar to the refugee who has the right to seek refuge in State X, but at the same time it is incumbent on him to respect the obligation not to harm the public order of State Y with which he maintains a relationship of original membership. Is such a comparison logical, and therefore, is it successful? The answer is not overwhelmingly positive, especially since the principle of sovereignty is very present in public international law, compared to that of the condition of foreigners. On the other hand, this same comparison can hold insofar as we contribute to it a functional task which intersects with the attempt to achieve protection by the State in question. Conclusion In a destabilized international climate which is related to the security crisis in Europe caused by the Russian military intervention in Ukraine and its impact of economic unrest and disruption of gas energy supply, a report resulting from the initiative of a parliamentary minority American has just called for the application of sanctions against Algeria, in reference to an American law which goes in this direction and which is intended basically for countries that are enemies of the United States of America. What was a little surprising is the very moment of the advent of this report, which intersects with the intensification of the conflict between the West and the new Eurasian alliance, through a hybrid war on Ukrainian soil. Our vision centered on the fact that this report will be able to spread conflicts and reach the southwestern region of the Mediterranean, an area that has remained stable until now. We began this work with a legal analysis of the said report, which is close in this respect to a recommendation, given that it is not necessarily mandatory. At the same time, we have shown that this report aims to put pressure on Algeria to prevent it from throwing itself freely into the arms of Russia and therefore to obstruct it in the face of any attempt to allow it to join the BRICS. Then, we evaluated and at the same time criticized the content of the report text, in particular that it is unreasonable to apply sanctions against a Country with reference only to the provisions of domestic law. In this sense, several arguments have been presented to this effect, whether on the involvement of the ICJ when it rejected Belgium’s responses based on universal jurisdiction (basically a judicial competence exercised by a Belgian national judge) to justify its issuance of an arrest warrant to the detriment of a senior Congolese official, or even when we mentioned the example of some American and Russian internal legal texts. Faced with this situation, we have finally pleaded for the protection of medium-sized states, sometimes even modest ones, subjects of pressure or even economic or military intervention from a neighboring great power, or a neighboring military alliance. This protection remains unconvincing on the legal and political level, which pushes the State to intervene to practice a method of self-defense. We have previously stressed that the self-defense referred to here is not necessarily limited to military reaction,[33] but it can consist in adherence to a few international conventions and in the normalization of bilateral or even multilateral relations, the purpose of which is to maintain a safe balance for the state subject to pressure or intervention. Bibliography Books/Articles: Asadov, B., Gavrilenko, V., Nemchenko, S. (2021). Brics in International Legal Space: Humanitarian Imperatives of International Security. Brics Law Journal, Vol. VIII, Iss. 1; Aust, A. (2007). Modern Treaty Law and Practice. Cambridge University Press, Cambridge; Boister, N. (2002). The ICJ in the Belgian Arrest Warrant Case: Arresting the Development of International Criminal Law. Journal of Conflict and Security Law, Volume 7, Iss. 2; Elias, S.B. (2021). Law as a Tool of Terror. Iowa Law Review, Vol. 107, Iss. 1; Galbraith, J. (2018). Executive Branch Imposes Limited Russia-Related Sanctions After Statutory Deadlines. American Journal of International Law, Vol. 112 , Iss. 2; Gonzalez, S. (2022). War in context: Yale’s Ukraine course reaches a global audience. Brief analysis of the historical vision of the balance of power between Ukraine and Russia as presented by the Yale historian Timothy Snyder. Available at: <https://news.yale.edu/2022/11/08/war-context-yales-ukraine-course-reaches-global-audience>; Green, J.A. (2009). The International Court of Justice and Self-Defence in International Law, Oxford, Hart; Hathaway, O., Shapiro, S. (2022). On International Order. Law Faculty Offer Analysis of Russia’s Invasion of Ukraine, Yale Law School. Available at: <https://law.yale.edu/yls-today/news/law-faculty-offer-analysis-russias-invasion-ukraine>; Heller, K.J., Trabucco, L. (2022). The Legality of Weapons Transfers to Ukraine Under International Law. Journal of International Humanitarian Legal Studies, Brill ed. Available at: <https://brill.com/view/journals/ihls/aop/article-10.1163-18781527-bja10053/article-10.1163-18781527 bja10053.xml>; Johnson, J.C. (2012). National Security Law, Lawyers, and Lawyering in the Obama Administration. Yale Law and Policy Review. Available at: <https://law.yale.edu/yls-today/news/qa-professor-hathaway-presidential-war-powers-and-war-terror>; Knudsen, T.B. (2019). Fundamental Institutions and International Organizations: Solidarist Architecture. International Organization in the Anarchical Society. The Institutional Structure of World Order; Kober, A. (2002). Low-intensity Conflicts: Why the Gap Between Theory and Practise? Defense & Security Analysis, Vol. 18, Iss. 1; Qiang, A. (2022). The Russian Invasion of Ukraine: Examining the Legality of US Interference. Columbia Undergraduate Law Review. Available at: <https://www.culawreview.org/journal/the-russian-invasion-of-ukraine-examining-the-legality-of-us-interference>; Shalom, S.R. (1979). International Lawyers & Other Apologists: The Case of the Cuban Missile Crisis. Polity, Vol. 12, n° 1; Soldatov, A., Borogan, I. (2022). Russian Cyberwarfare: Unpacking the Kremlin’s Capabilities. Available at: <https://cepa.org/comprehensive-reports/russian-cyberwarfare-unpacking-the-kremlins-capabilities/>; Steinberg, R.H., Zasloff, J.M. (2006). Power and International Law. American Journal of International Law; Ventouratou, A. (2022). Litigating Economic Sanctions. The Law & Practice of International Courts and Tribunals, Bill Nijhoff ed; Wittke, C. (2022). Troubled Nexuses Between International and Domestic Law in the Post-Soviet Space. Review of Central and East European Law, N° 47; Zuppi, A.L. (2003). Immunity v. Universal Jurisdiction: The Yerodia Ndombasi Decision of the International Court of Justice. in Louisiana Law Review, vol. 63, n° 2; Zwanenburg, M., Bothe, M., Sassoli, M. (2012). Is the law of occupation applicable to the invasion phase? International Review of the Red Cross, Vol. 94, Iss. 885. International and National Documents: Algerian Presidential decree N° 06-129 of April 33 2006 ratifying the agreement between the Government of People’s Democratic Republic of Algeria and the Government of Russian Federation on Trade, Economic and Financial and Debt Processing of the Algerian Republic Democratic and Popular towards the Russian Federation in respect of the previously granted, as well as the related protocol, signed in Algeria on 10 March 2006. Official Journal of the People’s Democratic Republic of Algeria N° 21, April 5, 2006; Council of the European Union. (2002). Council Decision 6786/02 on the Signing of the Euro-Mediterranean Agreement with Algeria. Brussels; Council of the European Union. (2005). Euro-Mediterranean Agreement with Algeria. Official Journal of the EU, L 265; Council of the European Union. (2012). Treaty on the Functioning of the European Union, Consolidated version. Official Journal of the EU, C 326/47; (1986). Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States), Judgment of 27 June 1986. Available at: <https://www.icj-cij.org/public/files/case-related/70/6504.pdf>; (2002). Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo v. Belgium). Judgment, 14 February, 2002; S. Congress. (2017). Countering America’s Adversaries Through Sanctions Act (CAATSA), Public Law 115-44; United Nations General Assembly. (2022). UN/GA/12407. Eleventh Emergency Special Session, General Assembly Overwhelmingly Adopts Resolution Demanding Russian Federation Immediately End Illegal Use of Force in Ukraine, Withdraw All Troops; United Nations. (1945). Charter of the United Nations; Vienna Convention on the Law of Treaties. (1969). UN Doc. A/CONF.39/27. Web-source: OSW. (2022). Against the Backdrop of War: SCO Summit in Samarkand. Available at: <https://www.osw.waw.pl/en/publikacje/analyses/2022-09-20/against-backdrop-war-shanghai-cooperation-organisation-summit>. Footnotes [1] United Nations General Assembly. (2022). UN/GA/12407. Eleventh Emergency Special Session, General Assembly Overwhelmingly Adopts Resolution Demanding Russian Federation Immediately End Illegal Use of Force in Ukraine, Withdraw All Troops. [2] “…it is important for the United States to follow the rules of jus ad bellum–defined in Article 51 of the UN Charter as a State using force against another State with the consent of the State being invaded–when specifying the amount of force they will use against Russian opposition”. Qiang, A. (2022). The Russian Invasion of Ukraine: Examining the Legality of US Interference. Columbia Undergraduate Law Review. Available at: <https://www.culawreview.org/journal/the-russian-invasion-of-ukraine-examining-the-legality-of-us-interference>. [3] For arguments trying to resolve this inconsistency, see: Heller, K.J., Trabucco, L. (2022). The Legality of Weapons Transfers to Ukraine Under International Law. Journal of International Humanitarian Legal Studies, Brill ed. p. 12. Available at: <https://brill.com/view/journals/ihls/aop/article-10.1163-18781527-bja10053/article-10.1163-18781527 bja10053.xml>. [4] Council of the European Union. (2002). Council Decision 6786/02 on the signing, on behalf of the European Community, of the Euro-Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part. Brussels. [5] Apart from the economic nature of Mr. Blinken’s visit, this did not prevent the American Secretary of State for Foreign Affairs, who visited Algeria, from trying to convince the Algerian authorities to reduce their degree of cooperation with Russia and in the meantime to guarantee the supply of gas to Europeans. [6] Art. 288 (ex Article 249 TEC): To exercise the Union’s competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. Recommendations and opinions shall have no binding force. See for more details and explanations on the recommendations the consolidated version of the TFEU, in particular Article 288, in Official Journal of the European Union (ex-EC), C 326/47, 26.10.2012. [7] On August 2, 2017, US President Donald Trump signed into law the “Countering America’s Adversaries Through Sanctions Act” (Public Law 115-44) (CAATSA), which among other things, imposes new sanctions on Iran, Russia, and North Korea. On this law and its application against Russia, see generally: Galbraith, J. (2018). Executive Branch Imposes Limited Russia-Related Sanctions After Statutory Deadlines. American Journal of International Law , Vol. 112 , Iss. 2, pp. 296 – 303. [8] According to the American view, “Russia does not have a true cyber command. While the Presidential Administration and the Security Council coordinate cyber operations involving various agencies and non-state or quasi-state actors, they are not a cyber command in the US sense. There is no clear delineation of operational responsibility and no uniform system of reporting and accountability. Rather, Russia’s cyber-active agencies and actors are governed through a largely informal system of relationships in which political expediency may trump operational efficiency”. Soldatov, A., Borogan, I. (2022). Russian Cyberwarfare: Unpacking the Kremlin’s Capabilities. Available at: <https://cepa.org/comprehensive-reports/russian-cyberwarfare-unpacking-the-kremlins-capabilities/>. [9] Ventouratou, A. (2022). Litigating Economic Sanctions. The Law & Practice of International Courts and Tribunals, Bill Nijhoff ed., p. 593. [10] Algerian Presidential decree N° 06-129 of April 3, 2006 ratifying the agreement between the Government of People’s Democratic Republic of Algeria and the Government of Russian Federation on Trade, Economic and Financial and Debt Processing of the Algerian Republic Democratic and Popular towards the Russian Federation in respect of the previously granted, as well as the related protocol, signed in Algeria on 10 March 2006. Official Journal of the People’s Democratic Republic of Algeria N° 21, April 5, 2006. [11] Asadov, B., Gavrilenko, V., Nemchenko, S. (2021). Brics in International Legal Space: Humanitarian Imperatives of International Security. Brics Law Journal, Vol. VIII, Iss. 1, p. 17. [12] Asadov, B., Gavrilenko, V., Nemchenko, S., op. cit, p. 21. [13] Knudsen, T.B. (2019). Fundamental Institutions and International Organizations: Solidarist Architecture. International Organization in the Anarchical Society. The Institutional Structure of World Order, p. 175. [14] The Court found that the issue and international circulation by Belgium of the arrest warrant of 11 April 2000 against Abdulaye Yerodia Ndombasi failed to respect the immunity from criminal jurisdiction and the inviolability which the incumbent Minister for Foreign Affairs of the Congo enjoyed under international law; and that Belgium must cancel the arrest warrant. We recall that the International Court of Justice (ICJ), principal judicial organ of the United Nations, delivered its Judgment in the case concerning the arrest warrant of 11 April 2000. ICJ, Democratic Republic of the Congo v. Belgium, 14 February 2002. We recall that the DRC’s request before the International Court essentially maintained that the Belgian mandate had been issued in flagrant contradiction to a decision of international law recognizing absolute immunity for the benefit of a Minister of Foreign Affairs as accepted by the jurisdiction of the Hague. Zuppi, A.L. (2003). Immunity v. Universal Jurisdiction: The Yerodia Ndombasi Decision of the International Court of Justice. in Louisiana Law Review, vol. 63, n° 2, p. 309. [15] Boister, N. (2002). The ICJ in the Belgian Arrest Warrant Case: Arresting the Development of International Criminal Law. Journal of Conflict and Security Law, Volume 7, Iss. 2, p. 293. [16] “The Trump Administration also took unprecedented steps to exclude immigrants based on their (non-Christian) religious beliefs—whether those beliefs were sincerely held or merely imputed by DHS officials based upon the immigrants’ race, ethnicity, or country of origin. This Section will discuss the two principal mechanisms used by the Trump Administration to bar nonChristians from entering the United States. First, it will address the so-called “Travel Bans”. Then, it will describe the decimation of the United States’ longstanding commitments to refugee resettlement”. Elias, S.B. (2021). Law as a Tool of Terror. Iowa Law Review, Vol. 107, Iss. 1, p. 18. [17] Just after the start of the Russian military operation in Ukraine, the two professors of international law Oona Hathaway and Scott Shapiro abusively criticized Russian military activities in Ukraine, without any reference to the Minsk agreements, saying: “But while the invasion ordered by Russian President Vladamir Putin is in direct violation of the most fundamental principle of the international legal order—the prohibition on the use of force—it’s too early to write the obituary of the post-war international system”. Hathaway, O., Shapiro, S. (2022). On International Order. Law Faculty Offer Analysis of Russia’s Invasion of Ukraine, Yale Law School. Available at: <https://law.yale.edu/yls-today/news/law-faculty-offer-analysis-russias-invasion-ukraine>. [18] Kober, A. (2002). Low-intensity Conflicts: Why the Gap Between Theory and Practise? Defense & Security Analysis, Vol. 18, Iss. 1, p. 15. [19] “Derived from the wording of Article 42 of the 1907 Hague Regulations, occupation may be defined as the effective control of a foreign territory by hostile armed forces. It is not always easy to determine when an invasion has become an occupation. This raises the question whether or not the law of occupation could already be applied during the invasion phase. In this regard, two main positions are usually put forward in legal literature. Generally it is held that the provisions of occupation law only apply once the elements underpinning the definition set out in Article 42 of the 1907 Hague Regulations are met. However, the so-called ‘Pictet theory’, as formulated by Jean S. Pictet in the ICRC’s Commentary on the Geneva Conventions, proposes that no intermediate phase between invasion and occupation exists and that certain provisions of occupation law already apply during an invasion”. Zwanenburg, M., Bothe, M., Sassoli, M. (2012). Is the law of occupation applicable to the invasion phase? International Review of the Red Cross, Vol. 94, Iss. 885, p. 29. [20] “Thus, an “associated force” is not any terrorist group in the world that merely embraces the al Qaeda ideolo-gy. More is required before we draw the legal conclusion that the group fits within the statutory authorization for the use of military force passed by the Congress in 2001”. Johnson, J.C. (2012). National Security Law, Lawyers, and Lawyering in the Obama Administration. Yale Law and Policy Review, p. 146. Available at: <https://law.yale.edu/yls-today/news/qa-professor-hathaway-presidential-war-powers-and-war-terror>. [21] “If history literally repeats itself, there would be no human agency. … It’s the same as saying ‘Things never change’”. Gonzalez, S. (2022). War in context: Yale’s Ukraine course reaches a global audience. Brief analysis of the historical vision of the balance of power between Ukraine and Russia as presented by the Yale historian Timothy Snyder. Available at: <https://news.yale.edu/2022/11/08/war-context-yales-ukraine-course-reaches-global-audience>. [22] Johnson, J.C. (2012). National Security Law, Lawyers, and Lawyering in the Obama Administration. Available at: <https://law.yale.edu/yls-today/news/qa-professor-hathaway-presidential-war-powers-and-war-terror>. [23] “We argue that the nexus approach can capture and navigate the complexity that is created by the confluence of various factors, rather than simplifying reality and ignoring the factors or contexts that may be difficult to address due to disciplinary rules, boundaries and/or methodological shortcomings. We assume that the interplay between international law and domestic norms in each post-Soviet country is shaped by a unique set of conditions, including divergent levels of economic development, varied political regimes, and different foreign policy trajectories, among them policies of international law, and readiness to socialize into international law norms”. Wittke, C. (2022). Troubled Nexuses Between International and Domestic Law in the Post-Soviet Space. Review of Central and East European Law, N° 47, p. 255. [24] For more details on this concept, see. Aust, A. (2007). Modern Treaty Law and Practice. Cambridge University Press, Cambridge, pp. 256-261. The author has devoted Chapter 14 of his book to explaining this notion of a third State. [25] “Regarding the impact of the war in Ukraine, Russia and China declared their willingness to “share the responsibility and readiness to play a leading role in bringing stability at the global level” and to “strongly support each other on issues concerning the key interests of each side”. However, there were no declarations of increased Chinese support for the Russian Federation. However, President Vladimir Putin indicated that he had “given an answer to the questions and concerns arising from the Chinese side”. Analysis of the 22nd Shanghai Cooperation Organization (SCO) Summit held in Samarkand on September 15-16, 2022, with the participation of leaders of its member states. Available at: <https://www.osw.waw.pl/en/publikacje/analyses/2022-09-20/against-backdrop-war-shanghai-cooperation-organisation-summit>. [26] Shalom, S.R. (1979). International Lawyers & Other Apologists: The Case of the Cuban Missile Crisis. Polity, Vol. 12, n° 1, p. 87. [27] Article 35 (Treaties providing for obligations for third States): “Treaties providing for obligations for third States An obligation arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to be the means of establishing the obligation and the third State expressly accepts that obligation in writing”. Article 36 (Treaties providing for rights for third States): “1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the provision to accord that right either to the third State, or to a group of States to which it belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long as the contrary is not indicated, unless the treaty otherwise provides. 2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its exercise provided for in the treaty or established in conformity with the treaty”. [28] Article 37 (Revocation or modification of obligations or rights of third States): 1. When an obligation has arisen for a third State in conformity with article 35, the obligation may be revoked or modified only with the consent of the parties to the treaty and of the third State, unless it is established that they had otherwise agreed. 2. When a right has arisen for a third State in conformity with Article 36, the right may not be revoked or modified by the parties if it is established that the right was intended not to be revocable or subject to modification without the consent of the third State”. [29] Steinberg, R.H., Zasloff, J.M. (2006). Power and International Law. American Journal of International Law, p. 64. [30] Dans l’arrêt du 27 juin 1986 imposant le Nicaragua contre les Etats Unis d’Amérique, la CIJ a évoqué l’utilisation américaine de la force sur le territoire nicaraguayen comme élément de violation du droit international coutumier : v. Affaire des activités militaires et paramilitaires au Nicaragua et contre celui-ci, (Nicaragua contre les Etats Unis d’Amérique) – in Fond, Résumé des arrêts, avis consultatifs et ordonnances de la Cour internationale de Justice, Arrêt du 27 juin 1986, sous paragraphe 4 et 6, p. 202. Available at: <icj-cij.org/public/files/case-related/70/6504.pdf>. [31] Ibid. [32] Green, J.A. (2009). The International Court of Justice and Self-Defence in International Law, Oxford, Hart, pp. 63-109. [33] Article 51 Charter of UN: “Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security”.
The Russian Military Intervention in Ukraine: An Analysis through the Lens of International Law
Russian troops invaded Ukrainian territory on February 22, 2022, for the sake of defending its borders from the alleged NATO threat, led by the United States. This move created widespread legal debate, calling for a number of positions on whether Russia’s actions were justifiable self-defence in international law or breached the Geneva Conventions governing international humanitarian law. This research paper aims to bring to the fore the military activities carried out by Russian soldiers in Ukraine, taking into account the legality of such a military operation under Article 51 of the United Nations Charter, which discusses the right to self-defence and exercise of the right of self-defence on the part of states. We shall also examine whether military intervention violates humanitarian law. The analysis shall use relevant legal documents, albeit more specifically, the 1949 Geneva Conventions, the Rome Statute of the International Criminal Court of 1998, in addition to using the United Nations Charter and those that are supplementary. To this effect, the paper will examine the subjectivity of operations to international law and humanitarian implications thereof towards Ukraine. The findings of this research on the legality of military interventions and state responsibilities according to international law will offer a complete appreciation of the legal and ethical dimensions of the conflict. Keywords: Intervention military, international humanitarian law, International Criminal Court. Introduction Under the new international order, the global arena has witnessed several military interventions aimed primarily at eliminating violations of international humanitarian law and human rights, as well as changing political regimes that infringe upon these rights. Regardless of the justifications presented for these military actions, a common characteristic is the use of armed force against the integrity and independence of states, which undermines their role as the largest sponsors of peace in the world. Much discourse has been dedicated to exploring the legal nature of these military interventions. Military intervention, in general, oscillates between two prominent concepts in international law: the legitimate right to defend a state’s sovereignty and territorial integrity (as seen in the U.S. war on terrorism) and the violation of international humanitarian law. Such interventions often result in casualties and infrastructural damage, whether intentional or unintentional (as exemplified by the war in Gaza). On February 22, 2022, Russian troops invaded Ukrainian territory under the pretext of defending national security against perceived threats from the West, particularly NATO. This military operation triggered significant political reactions, dividing global opinion. One faction categorically rejects Russia’s infringement on Ukraine’s sovereignty, while another supports Russia’s justifications. From an international law perspective, the key questions arise: How does the Russian military intervention align with the requirements for legitimate defense as outlined in Article 51 of the UN Charter? Additionally, how does it relate to violations of international humanitarian law? To address these issues, we have structured the research paper into two main topics. The first topic examines Russian military intervention and its connection to the right of legitimate defense. This will include an analysis of military intervention in international law (the first requirement) and the legitimacy of Russian military actions in light of international humanitarian law (the second requirement). The second topic will explore the extent to which the Russian military intervention violated international humanitarian law. This includes assessing Russia’s international responsibility for such violations (the first requirement) and evaluating how these violations in Ukraine substantiate the case for Russia’s international accountability (the second requirement). In tackling these questions, we employed an analytical approach, gathering relevant legal material and analyzing it in relation to the realities of the Russian-Ukrainian armed conflict. Section One: Russia’s declaration of war on Ukraine and the issue of justifying it by the right of legitimate defence The tension in the relationship between the two states led to a military intervention carried out by the Russian Armed Forces on Ukrainian territory, and the Russian government’s pretext was that what it was doing came in the context of Article 51 of the UN Charter and that the state has the right to defend itself from any threat affecting its security and sovereignty.[1] The concept of legitimate defense did not fully materialize until after the establishment of the United Nations. It emerged as a recognized principle within international norms and laws, allowing states to take measures they consider necessary to protect their core interests when under attack. As public international law evolved, emphasizing the principle of preventing military force, the idea of legitimate defense developed as an exception to the general rule against the use of force, as outlined in the UN Charter,[2] which aims to maintain international peace and security.[3] From a legal perspective, military intervention extends beyond the principles of public international law, such as the principle of non-interference in the internal affairs of states. It can also be analyzed through the lens of international humanitarian law, particularly in reference to the second Common Article of the four Geneva Conventions of 1949. This article stipulates the international protection of members of the armed forces who have laid down their weapons, as well as individuals unable to fight due to illness, disability, detention, or other reasons. All such individuals must be treated humanely in all circumstances, without any harmful discrimination based on race, color, sex, religion, belief, birth, wealth, or any other criterion.[4] Based on the previous discussion, we will examine the manifestations of military intervention in international law. This will involve a detailed explanation of each aspect separately in the first and the second requirement. We will also assess the legality of military intervention within the framework of international law. The First Demand: Manifestations of military intervention in international law Although the use of force and its threat are prohibited under the United Nations Charter, the international landscape reveals a different reality. Numerous international conflicts continue to occur where force has been employed, each with its justification based on specific contexts. The wars in Afghanistan, Iraq, and Ukraine represent Western military interventions that were framed under various pretexts, including the war on terrorism, preemptive war, preventive war, and humanitarian military intervention. These aspects of military intervention will be discussed in detail in the following sections. The First Branch: Military intervention as a manifestation of the war on terror Terrorism is not a new phenomenon and does not have a singular definition.[5] Its manifestations have varied across different times and places, yet its fundamental nature has remained constant. Since the League of Nations established the Convention for the Prevention and Punishment of Terrorism in 1937, combating terrorism has consistently been a priority for the international community. Starting in 1963, sixteen international legal instruments aimed at preventing and punishing terrorist acts have been adopted. Furthermore, for over a decade, the United Nations General Assembly has passed annual resolutions on measures to combat international terrorism, initiated by the Sixth Committee.[6] The Security Council has adopted numerous resolutions aimed at combating terrorism, with Resolution 1373/2001 holding particular significance. Adopted in the aftermath of the events of September 11, 2001, this resolution has both a general and binding nature. Its adoption under Chapter VII of the United Nations Charter signifies that terrorism is to be regarded as a threat to international peace and security.[7] NATO defines terrorism in its military documents as “the unlawful use or threat of use of force or violence, which instils fear and terror, against individuals or any attempt to coerce or intimidate governments or societies or to impose control over populations and property to achieve political, religious, or ideological goals.[8] A significant debate arose during the Rome Conference that established the International Criminal Court regarding the court’s jurisdiction over international terrorism crimes. Attendees were divided into two opposing views. The first group argued that terrorism should fall under the court’s jurisdiction, as it is one of the most serious crimes threatening international peace and security, in addition to violating international humanitarian law. The second group, however, contended that terrorism is a transnational crime, and the court should not address it due to difficulties in defining it, a lack of consensus on the definition of international terrorism, and challenges in investigation and prosecution. They argued that national criminal courts should be the sole authority to address such crimes. The second Branch: Military intervention as a form of humanitarian intervention Although the concept of intervention has been widely applied in international relations, there is little consensus among scholars on the definition of “humanitarian intervention”, leading to the emergence of various interpretations. One interpretation is the broad concept of humanitarian intervention, which holds that such interventions are justified in response to any form of suffering, whether caused by natural disasters or human actions, such as armed conflicts. In contrast, the narrow concept restricts humanitarian intervention to actions that are free from political or military motivations and any form of coercion. In this sense, humanitarian intervention is truly humanitarian, meaning it does not involve economic or strategic interests, nor does it exhibit bias or selectivity in its outcomes or methods.[9] In 1915, the jurist Roger defined humanitarian intervention as the right of a state to exert control over another state’s actions concerning its internal sovereignty when the law of humanity is in conflict, with the intervening state seeking to justify its actions legally.[10] Christopher Greenwood states that humanitarian intervention is limited to cases where a large segment of citizens—who may not necessarily be subjects of a state or another state—are exposed to death or torture on a large scale as a result of the policies of the government of that state.[11] The Secretary-General of the United Nations, Kofi Annan, raised his famous question about how the international community should respond to gross and systematic violations of human rights that affect every principle of our common humanity. The International Commission on Intervention and State Sovereignty specifically* described this issue as follows: “Generally, it aims to build a broader understanding of the problem of reconciling intervention to protect human beings with state sovereignty. More specifically, it seeks to develop a global political consensus on how to move beyond polemics and often paralysis, towards effective action within the international system, particularly through the United Nations”.[12] The Committee uses six criteria to justify humanitarian military intervention, aiming to have these criteria accepted at the global level. It believes that these criteria can help bridge the gap between theory and practice regarding the responsibility to protect. These criteria are:[13] The Just Cause Criterion: This requires the existence of widespread loss of life, with or without the intent to commit genocide, as a result of a deliberate act or negligence by the state; The Appropriate Authority Criterion: This determines the body authorized to intervene in humanitarian situations; The Good Intention Criterion: This means that the purpose of humanitarian intervention is to stop or prevent human suffering, and that overthrowing the regime is not a legitimate reason for intervention; The Last Resort Criterion: This indicates that resorting to the use of force should be the last option for intervention, as outlined in Articles... of the Charter of the United Nations; The Appropriate Means Criterion: This emphasizes the need to consider proportionality in any intervention process, in accordance with the principle of proportionality in international humanitarian law; The Reasonable Probability of Success Criterion: This requires that military action be justified, provided that its chances of success are reasonable. The third branch: Military intervention as a manifestation of preemptive war Both the concepts of preventive and preemptive war, despite their different pronunciations, lead to the same act. They serve as a circumvention by major powers to confer some kind of legitimacy on their aggressive actions, allowing them to evade international accountability. It should also be noted that the preparatory committee for the draft definition of the crime of aggression has rejected the notion of a legitimate preventive defense.[14] Despite the preparatory committee’s rejection of preemptive war as a means of legitimate defense, the international arena has witnessed many practices that illustrate this concept. One notable example is the Cuban Missile Crisis: The Cuban Missile Crisis: During this crisis, the United States put forward several formal legal arguments in support of establishing a so-called “defensive quarantine” before any actual use of force by the Soviet Union or Cuba. Most of these arguments centered on the role of regional organizations and their ability to authorize the use of force in the absence of a formal Security Council resolution. However, several Security Council representatives discussed the notion of preemption during the Council’s deliberations on the American proposal. Although there was no clear consensus supporting this principle, there was also no clear consensus opposing it. Many states that opposed the United States’ position did not outright reject the principle of preemption; rather, they questioned whether the criteria established under customary law had been met in this particular case.[15] Six-Day War (1967): On June 5, 1967, Israel launched an armed attack against the United Arab Republic (comprising Syria and Egypt) and quickly achieved victory in what became known as the Six-Day War. During Security Council discussions, Israel claimed that it was acting in anticipation of what it believed would be an imminent attack by Arab states. The Soviet Union, Syria, and Morocco opposed Israel’s actions, rejecting any principle of preemptive self-defense. Conversely, Israel’s supporters, such as the United States and the United Kingdom, tended to endorse the principle of preemption. However, once again, there was no clear consensus against the principle.[16] The second demand: Legality of Russian military intervention in international law The right of legitimate defense has held significant importance in international law since the issuance of the Charter of the United Nations,[17] Article 2(4), originally stated that the non-resort to the use of force and the threat of force in the relationships between states is paramount. In this context, Resolution 2526 of the United Nations General Assembly indicates that the threat or use of force constitutes a violation of international law and the Charter of the United Nations. However, the Charter makes an exception in Article 51, which provides for the inherent right of a state to respond to any aggression against its security and territorial integrity. Analyzing the text of Article 51, we note that the international legislator coined the term “natural”, describing the right of legitimate defense as a “right”. This indicates that this right has existed since ancient times, and that Article 51 has revealed and regulated it. The use of the term “authentic” does not merely denote the preservation of a widespread right; rather, it was developed to recognize that states still have the right to exercise legitimate defense, albeit under the control and responsibility of the UN Security Council[18]. The question that arises in this regard is how to explain the Russian military intervention in Ukraine through the Russian perspective on this concept, as well as the views of the rest of the international community. In the first part, we will discuss the Russian justifications for military intervention, linking it to Article 51. Then, we will analyze the nature of this intervention concerning the conditions for exercising the right of legitimate defense in international law, along with comments from various segments of the international community on the subject in the second part. The first branch: Russia invokes the provisions of Article 51 as justification for military intervention in Ukraine Russia believes that it has the full right to use force if it perceives a threat to its security, considering Article 51 of the UN Charter; it asserts that Russia’s interests are as legitimate as those of the West and emphasizes that the United States and Europe have ignored its interests in this context.[19] In a surprising development, contrary to many estimates, Russian President Vladimir Putin announced the launch of a military operation in Ukraine early on Thursday morning in 2022. In an address to the people, Putin emphasized that the circumstances required decisive and immediate action after the Donbas republics appealed to Moscow for help. He stressed that his country’s plans did not include the occupation of Ukraine, but that many individuals, including Russian citizens, should be brought to justice for crimes against civilians, as he stated.[20] The second branch: The conformity of Russian military operations in Ukraine with the conditions of legitimate defence in Article 51 of the charter The right to legitimate defense is an inherent and natural right of both states and individuals, recognized by most domestic and international legal systems. However, exercising this right does not grant states or individuals broad discretion. The right to legitimate defense is mentioned in the United Nations Charter because it is not absolute; it comes with conditions that must be met for this right to be invoked. These conditions can be examined in international courts and international criminal courts as a justification for permissibility, whether related to the act of aggression on one hand, or the act of response on the other.[21] The conditions that must be met for an act of aggression or an act that justifies retaliation are as follows: the aggression must be armed and unlawful; it must be immediate and direct; it must involve a violation of one of the essential rights of the state; and the state’s will must play a role in the occurrence of the aggression.[22] As for the conditions that must be met in the act of repelling aggression, the response or self-defense must be justified if the state or individual has no other means than resorting to defensive action. In other words, there must be a necessity that compels the response to the aggression, and it must be carried out in a manner proportional to the scale of the aggression.[23] Accordingly, for the act of response or defense to be justified and deemed permissible under the principles of legitimate defense, two conditions must be met: necessity and proportionality.[24] Therefore, the question remains: If the Russian military intervention is not an exercise of the right to legitimate defense, as the Russian government claims, can this intervention be considered a violation of international humanitarian law? This question becomes especially pertinent in light of the International Criminal Court’s actions, as its prosecutor has called for an investigation into international crimes allegedly committed on Ukrainian territory since the beginning of the operations. This is the issue we will address in the next section. Second section: Russian military intervention in Ukraine in the light of international humanitarian law International humanitarian law was established to prevent war and mitigate its devastating effects on humanity. It achieves this by establishing preventive and deterrent mechanisms that regulate the conduct of combat operations and the treatment of civilians, prisoners of war, and other issues arising on the battlefield. State adherence to international humanitarian law is based on political will and commitment to the provisions of international agreements and norms. Any violation of these rules by a state or its individuals will result in the state’s civil liability for any damages caused, in addition to the criminal liability of individuals whose actions constitute war crimes under international criminal law. Accordingly, we will discuss in this section the establishment of Russia’s international responsibility for violating the rules of international humanitarian law in the first part. We will then examine how the Russian military intervention in Ukraine constituted violations of these rules and the extent to which this serves as a justification for establishing Russia’s international responsibility in the second part. The first demand: Establishment of Russia’s international responsibility for violating the rules of international humanitarian law Rule 149 of Customary International Humanitarian Law provides that a state is responsible for violations of international humanitarian law attributable to it, which include: violations committed by its organs, including its armed forces; violations committed by persons or entities delegated a degree of governmental authority; violations committed by persons or groups acting on its instructions or under its direction or control; and violations committed by private persons or groups that the state recognizes as its conduct.[25] Therefore, the establishment of Russia’s international responsibility for violating the rules of international humanitarian law is subject to those rules regarding the legal basis for this responsibility, whether in the Rome Statute or the agreements of international humanitarian law. The first branch: The legal basis for international responsibility for violations of international humanitarian law in the Rome Statute of 1998 Establishing international responsibility in cases of serious violations of international humanitarian law and international criminal law is crucial for maintaining stability and human security. The first paragraph of Article 8 of the Statute of the International Criminal Court stipulates that the Court has subject-matter jurisdiction over war crimes, especially when they are committed as part of a general plan or policy or during large-scale commission of these crimes. The second paragraph of the same article confirms that war crimes represent serious violations of international humanitarian law.[26] The Rome Statute classifies war crimes according to four criteria: grave breaches of the four Geneva Conventions of 1949, other breaches of the rules and customs of armed conflict, and crimes of armed aggression against the security and territorial integrity of states.[27] The Statute criminalized aggression in its latest amendment in 2010 at the Kampala Conference. Article 08 bis* defines the crime of aggression as established by the United Nations General Assembly in its Resolution No. 3314 dated 1974. According to the definition in Article 08 bis, the crime of aggression is committed within the framework of an aggressive act stemming from the personal will of an individual who has the means to control the political and military actions of the aggressor state.[28] Paragraph 2 of the above article defines an act of aggression as the use of armed force by a state against the sovereignty, territorial integrity, or political independence of another state, or in any manner inconsistent with the Charter of the United Nations. The term ‘act of aggression’ applies to any of the following acts, whether with or without a declaration of war, in accordance with United Nations General Assembly Resolution 3314 (XXIX) dated 14 December 1974:[29] The invasion or attack by the armed forces of a state on the territory of another state; Any military occupation resulting from such actions, regardless of duration; Any annexation by force of the territory of another state, or part thereof.[30] The second branch: The legal basis for international responsibility for violations of international humanitarian law in the four Geneva Conventions of 1949 Serious violations of the four Geneva Conventions of 1949 are acts committed against persons or property protected under these conventions.[31] These violations include acts such as murder, torture, inhuman treatment, forcing prisoners of war or protected persons to serve in the armed forces of the hostile state, unlawful deportation, transfer, or confinement, and taking hostages.[32] Other violations of the laws and customs of armed conflict include 26 war crimes, such as directing attacks against the civilian population, intentionally targeting civilian objects, launching attacks against personnel, installations, materials, units, or vehicles involved in humanitarian or peacekeeping missions, intentionally launching attacks knowing they will cause incidental loss of life or injury to civilians, and conducting indiscriminate attacks, including shelling of towns, villages, and dwellings or isolated buildings that are not military objectives.[33] The legal basis for international responsibility for violations of international humanitarian law can also be found in Article 5 of the Convention on the Prevention and Punishment of the Crime of Genocide. This article obligates the parties to the Convention (i.e., states) to adopt, in accordance with their national constitutions, the necessary legislative measures to enforce the provisions of the Convention. In particular, it requires states to impose effective criminal penalties on perpetrators of genocide or any of the other acts listed in Article 3 of the Convention.[34] The legal basis for international responsibility for violations of international humanitarian law can also be found in Article 2 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. This article requires each State Party to adopt effective legislative, administrative, judicial, or other measures to prevent acts of torture within its jurisdiction. It also explicitly states that no exceptional circumstances—whether a state of war, a threat of war, internal political instability, or any other public emergency—can be invoked by a State Party as a justification for torture. Additionally, orders from a superior officer or public authority cannot be used as a justification for torture.[35] The second demand: Violation of the rules of international humanitarian law by the Russian military intervention in Ukraine as a justification for Russia’s international responsibility In light of the above, we observe that the Russian army’s commitment to the rules of international humanitarian law during its military intervention in Ukraine appears to be low. This is evident from reports by the United Nations and preliminary investigations by the International Criminal Court, which suggest the possibility of widespread human rights violations and breaches of international humanitarian law by Russian forces in Ukraine. Such actions could inevitably lead to the establishment of international criminal responsibility for Russia. The first branch: Russian military intervention violates the rules of international humanitarian law from the perspective of the United Nations The United Nations has warned that ongoing violence in Ukraine has left millions living in “constant fear” of indiscriminate shelling, while efforts continue to reach the country’s most vulnerable populations. A month after Russia’s invasion, more than 3.7 million people have fled the country, with an estimated 13 million others stranded in affected areas or unable to leave due to increased security risks and the destruction of bridges and roads, according to Carolina Lindholm Billing, the UN Refugee Agency’s representative in Ukraine.[36] According to the Office of the UN High Commissioner for Human Rights, 78 children have been killed and 105 injured in Ukraine since the war began in February 2022. However, these figures only reflect those the UN has been able to confirm, and the actual toll is likely to be much higher. The war has also had devastating effects on civilian infrastructure and access to basic services. For instance, the World Health Organization has reported attacks on healthcare facilities across the country, while the Ukrainian Ministry of Education and Science has documented damage to more than 500 educational facilities.[37] For his part, United Nations Secretary-General António Guterres stated in a speech to the General Assembly that the Russian invasion of Ukraine compels UN member states to unite in “cooperation and solidarity” to support all those affected and “overcome this violation of international law”. During a Security Council session on Tuesday morning, Ukrainian President Volodymyr Zelensky discussed what he described as the most horrific war crimes since the end of World War II, committed by Russian forces in his country. The session included a screening of video clips showing atrocities against civilians and the destruction of infrastructure and buildings.[38] Michelle Bachelet, the UN High Commissioner for Human Rights, expressed her horror at the images of civilians killed in the streets and in makeshift graves in the town of Bucha, Ukraine. Bachelet added that the reports received raise serious and disturbing questions about the possibility of war crimes, severe violations of international humanitarian law, and grave violations of international human rights law.[39] The second branch: Violation of the rules of international humanitarian law by the Russian military intervention from the perspective of the International Criminal Court The Prosecutor of the International Criminal Court (ICC), Karim Khan, announced his decision to open an investigation into the situation in Ukraine as soon as possible. In a statement, Mr. Khan explained that while Ukraine is not a party to the Rome Statute and therefore cannot refer the situation directly to his office, it has twice exercised its right to accept the Court’s jurisdiction over alleged crimes under the Rome Statute.[40] The first declaration, submitted in 2014, allowed the ICC to investigate crimes committed on Ukrainian territory between 21 November 2013 and 22 February 2014. The second declaration extended this period indefinitely, granting the ICC jurisdiction over alleged crimes occurring throughout Ukraine from 20 February 2014 onward.[41] The ICC Prosecutor stated that, after reviewing his Office’s findings from the preliminary examination into the situation in Ukraine, he has confirmed “a reasonable basis to proceed with the opening of an investigation”. He added, “In particular, I am satisfied that there is a reasonable basis to believe that alleged war crimes and crimes against humanity have been committed in Ukraine, based on the events already assessed during the Office’s preliminary examination.[42] The International Criminal Court’s decision to open an investigation into Russian military violations during its intervention in Ukraine signals international accountability for the Russian government. This indication is further validated by the issuance of an arrest warrant for the Russian president by the ICC Prosecutor, following the proven violation.[43] Conclusion There is a broad consensus that the use of force in international relations is a taboo that the United Nations does not tolerate. However, the issue of military intervention for humanitarian purposes, or what is known as preemptive wars, remains contentious. This has placed the UN in a difficult position, particularly since the countries most likely to engage in such interventions are permanent members of the Security Council. In light of our study on Russia’s military intervention in Ukraine, we have reached the following conclusions: Military operations in Ukraine do not fall under the provisions of Article 51 of the United Nations Charter, as Russia claims, because the conditions required by the article are not met; Russia’s military intervention in Ukraine constitutes a violation of international law and international criminal law, as outlined in Article 8bis of the Rome Statute; Russia has committed violations of international humanitarian law during its military intervention in Ukraine, as evidenced by the documented information presented above. Bibliography International documents: United Nations. (2009). Handbook on international cooperation in criminal matters to combat terrorism. United Nations Office on drugs and crime, New York; United Nations. Résolution 3314 (XXIX) De L’assemblée Générale, Définition De L’agression. Audiovisual Library Of International Law; International Criminal Court. (2021). Statute of the International Criminal Court, Article 8. ISBN No. 92-9227-386-8, The Hague, The Netherlands; Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly and opened for signature, ratification and accession in resolution 46/39 of 10 December 1984; date of entry into force: June 26, 1987; Convention on the Prevention and Punishment of the Crime of Genocide, adopted and submitted for signature, ratification or accession by the UN General Assembly Resolution 260 a (D-3), of December 9, 1948; date of entry into force: January 12, 1951; (2020). The reference method for combating terrorism. Books: Benalla, A.K. (2019). The legitimacy of military intervention outside the framework of the Security Council: The situation in Syria. Political Studies, Egyptian Institute for Studies; Arend, C. (2003). International Law and the Preemptive Use of Military Force, The Center for Strategic and International Studies and the Massachusetts, Institute of Technology, The Washington Quarterly. Journal articles: Lunisi, A. (2019). Gross violations of the rules of international humanitarian law: between the text of Article 8/2 of the statute of the International Criminal Court and the obstacles to its activation. International Journal of legal and Political Research, Vol. 3, No. 02; Mabrouk, G. (2014). The military intervention in Mali and the extent of its legitimacy. Notebooks of Politics and Law, No. 11; Tuta, H. (2018). The right of legitimate defense between international legality and American practice. Journal of Law, Vol. 07, No. 02; Kamrsho, H., Alloush, F. (2020). The limits of legitimate defence under the UN Charter and the statute of the International Criminal Court. Journal of Legal and Political Sciences, Vol. 11, No. 02; Kina, M.L. (2016). The Concept of the Crime of Aggression in the System of the Permanent International Criminal Court. Journal of Political and Legal Notebooks, Issue 14; Massingham, E. (2009). Military Intervention for Humanitarian Purposes: Does the Doctrine of the Responsibility to Protect Enhance the Legitimacy of the Use of Force for Humanitarian Purposes? International Review of the Red Cross, Vol. 91, No. 876. Internet web-sites: Al Jazeera.net, available at: <https://www.aljazeera.net/midan/reality/politics/2022/2/24/> (Last access: 04.10.2024); Charter of the United Nations. Available at: <https://www.un.org/ar/about-us/un-charter/full-text> (Last access: 04.10.2024); Saadi, M. Between preventive war and proactive war in international law. Available at: <https://www.asjp.cerist.dz/en/downArticle/325/1/1/45310> (Last access: 04.10.2024); Official website of the International Committee of the Red Cross available at: <https://www.icrc.org/ar/document/geneva-conventions-1949-additional-protocols> (Last access: 12.10.2024); official website of the International Criminal Court available at: <https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and> (Last access: 12.10.2024); Awashria, R. (2003). Humanitarian Intervention as a Mechanism for Achieving World Peace in the Concept of the Countries of the North. Available at: <https://www.asjp.cerist.dz/en/article/75645> (Last access: 04.10.2024); The database of international humanitarian law, customary international humanitarian law, custom IHL Database. Available at: <https://ihl-databases.icrc.org/customary-ihl/ara/docs/v1_rul_rule149> (Last access: 07.10.2024); The United Nations news website available at: <https://news.un.org/ar/> (Last access: 12.10.2024). Footnotes [1] See Article 51 of the Charter of the United Nations. Available at: <https://www.un.org/ar/about-us/un-charter/full-text> (Last access: 04.10.2024). [2] The prohibition of resorting to the use of force and the threat of it is stipulated in Article 51 of the charter, which states as follows: “nothing in this charter weakens or detracts from the natural right of states, individually or collectively, to defend themselves if an armed force attacks a member of the United Nations, until the Security Council takes the necessary measures to maintain international peace and security”. See the full text of the Charter available at: <https://www.un.org/ar/about-us/un-charter/full-text> (Last access: 04.10.2024). [3] Kamrsho, H., Alloush, F. (2020). The limits of legitimate defence under the UN Charter and the statute of the International Criminal Court. Journal of Legal and Political Sciences, Vol. 11, No. 02, p. 551. [4] Mabrouk, G. (2014). The military intervention in Mali and the extent of its legitimacy. Notebooks of Politics and Law, No. 11, p. 64. [5] NATO. (2020). The reference method for combating terrorism, p. 11. [6] United Nations. (2009). Handbook on international cooperation in criminal matters to combat terrorism. United Nations Office on drugs and crime, New York, p. 1. [7] Ibid. [8] NATO. (2020). The reference method for combating terrorism, p. 11. [9] Awashria, R. (2003). Humanitarian Intervention as a Mechanism for Achieving World Peace in the Concept of the Countries of the North. Available at: <https://www.asjp.cerist.dz/en/article/75645> (Last access: 04.10.2024). [10] Ibid., p. 13. [11] Ibid., p. 14. * The International Commission on Intervention and State Sovereignty is a body established by the Government of Canada in September 2000 in the wake of the controversy surrounding the NATO bombing campaign in Kosovo. See: Massingham, E. (2009). Military Intervention for Humanitarian Purposes: Does the Doctrine of the Responsibility to Protect Enhance the Legitimacy of the Use of Force for Humanitarian Purposes? International Review of the Red Cross, Vol. 91, No. 876, p. 160. [12] Ibid., p. 160. [13] Ibid., pp. 161-162. [14] Saadi, M. Between preventive war and proactive war in international law. Available at: <https://www.asjp.cerist.dz/en/downArticle/325/1/1/45310> (Last access: 04.10.2024). [15] Arend, C. (2003). International Law and the Preemptive Use of Military Force, The Center for Strategic and International Studies and the Massachusetts, Institute of Technology, The Washington Quarterly, p. 94. [16] Ibid, pp. 94, 95. [17] Benalla, A.K. (2019). The legitimacy of military intervention outside the framework of the Security Council: The situation in Syria. Political Studies, Egyptian Institute for Studies, p. 3. [18] Tuta, H. (2018). The right of legitimate defense between international legality and American practice. Journal of Law, Vol. 07, No. 02, p. 164. [19] An article published on the Al Jazeera.net, available at: <https://www.aljazeera.net/midan/reality/politics/2022/2/24/> (Last access: 04.10.2024). [20] Ibid. [21] Kamrsho, H., Alawash, F., Op-cit, p. 556. [22] Ibid., p. 558. [23] Ibid. [24] Ibid.. [25] ICRC. The database of international humanitarian law, customary international humanitarian law, custom IHL Database. Available at: <https://ihl-databases.icrc.org/customary-ihl/ara/docs/v1_rul_rule149> (Last access: 07.10.2024). [26] Lunisi, A. (2019). Gross violations of the rules of international humanitarian law: between the text of Article 8/2 of the statute of the International Criminal Court and the obstacles to its activation. International Journal of legal and Political Research, Vol. 3, No. 02, pp. 131-132. [27] See International Criminal Court. (2021). Statute of the International Criminal Court, Article 8. ISBN No. 92-9227-386-8, The Hague, The Netherlands. [28] United Nations. Résolution 3314 (XXIX) De L’assemblée Générale, Définition De L’agression. Audiovisual Library Of International Law, p. 5. [29] Kina, M.L. (2016). The Concept of the Crime of Aggression in the System of the Permanent International Criminal Court. Journal of Political and Legal Notebooks, Issue 14, p. 299. [30] Ibid. [31] The Geneva Conventions and their Additional Protocols are international treaties that contain the most important rules to limit the barbarity of war. The Conventions provide protection to people who do not participate in the hostilities (civilians, health workers, and relief workers) and those who are no longer participating in the hostilities (wounded, sick, shipwrecked soldiers, and prisoners of war). See the official website of the International Committee of the Red Cross available at: <https://www.icrc.org/ar/document/geneva-conventions-1949-additional-protocols> (Last access: 12.10.2024). [32] Lounisi, A., Op-cit, pp. 135-136. [33] Ibid. [34] See article 05 of the Convention on the Prevention and Punishment of the Crime of Genocide, adopted and submitted for signature, ratification or accession by the UN General Assembly Resolution 260 a (D-3), of December 9, 1948; date of entry into force: January 12, 1951. [35] See article 02 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, adopted by the General Assembly and opened for signature, ratification and accession in resolution 46/39 of 10 December 1984; date of entry into force: June 26, 1987. [36] The United Nations news website available at: <https://news.un.org/ar/> (Last access: 12.10.2024). [37] Ibid. [38] Ibid. [39] Ibid. [40] Ibid. [41] Ibid. [42] Ibid. [43] The arrest warrant states: “There are reasonable grounds to believe that Vladimir Putin is criminally responsible individually for the war crimes of unlawful deportation of population (children) and the war crime of unlawful transfer of population (children) from certain occupied areas of Ukraine to the Russian Federation (within the meaning of Articles 8-2-a-vii and 8-2-b-8 of the Rome Statute), directly, and/or jointly with and/or through other persons (Article 25-3-a of the Rome Statute), as well as for the failure to exercise due control over his civilian and military subordinates who committed or permitted these crimes and who were under his authority and employees under his control, in accordance with the rules on superior responsibility (Article 28-b of the Rome Statute)”. See the official website of the International Criminal Court available at: <https://www.icc-cpi.int/news/situation-ukraine-icc-judges-issue-arrest-warrants-against-vladimir-vladimirovich-putin-and> (Last access: 12.10.2024).
The Efficacy of “Anti-Gender-Based Violence Laws” in Addressing the Scourge of Gender-Based Violence in South Africa
South Africa has encountered a notable increase in incidents of gender-based violence (GBV) over recent years. The failure of South Africa’s criminal justice system to effectively address GBV cases has resulted in the stigmatisation of the system. Consequently, the public’s trust in the criminal justice system has diminished. In 2023, three ‘‘anti-GBV laws were enacted; these laws aimed at combating GBV, namely the Criminal Law (Sexual Offences and Related Matters) Amendment Act, the Criminal and Related Matters Amendment Act, and the Domestic Violence Amendment Act (DVVA). This study evaluates the efficacy of these laws in mitigating the prevalence of GBV in South Africa. Specifically, the research seeks to determine whether the anti-GBV laws offer protection to victims both before and after their rights are violated by perpetrators of gender-based violence. Additionally, the study investigates whether these laws expedite the legal processes involved in handling GBV cases. A comparison is made between the newly enacted laws and the Domestic Violence Act, which is recognised as the primary legislation governing GBV in South Africa. Recommendations are provided regarding the effective implementation of preventive legal measures outlined in the DVAA to safeguard GBV victims and combat the escalating rates of GBV in South Africa. This is a qualitative study, and it draws its insights from various sources, including articles, case law, legislation, the Constitution, and international legal frameworks. Keywords: Gender-based violence, victims, anti-GBV laws. Introduction Gender-based violence (GBV) is defined as the ‘violence that is directed at an individual based on his or her gender. It includes physical, sexual, and psychological abuse; threats; coercion; arbitrary deprivation of liberty; and economic deprivation, whether occurring in public or private life. Gender-based violence takes on many forms and can occur throughout the lifecycle.[1] The article’s main focus is on gender-based violence against women and children due to the high number of cases of GBV that are reported. Bosielo JA in S v Makatu[2] emphasised “the escalating trend of violent crimes, such as murder and sexual offenses, in the nation. These criminal activities significantly threaten the fundamental societal and ethical structure. The society is experiencing a profound division. A large portion of the population, especially the marginalised and powerless groups like women, children, the elderly, and the sick, live in constant fear. It is a fact that virtually every female in the country is at risk of becoming a victim of either murder or rape. This unfortunate reality is juxtaposed against the backdrop of the emerging constitutional democracy, which promises a better existence for all. These offenses have permeated our picturesque nation’s entire territory like a destructive disease. They pose a severe threat to our emerging democracy and must be eradicated at their core”.[3] GBV is acknowledged as a severe infringement of human rights,[4] impacting predominantly women and girls, perpetuating ongoing harm.[5] This hinders their ability to live up to their fullest potential in a state of liberty and peace.[6] GBV is one of South Africa’s most serious and disturbing problems. According to the 2023/2024 crime statistics, South Africa recorded 10,516 rapes, 1,514 cases of attempted murder, and 14,401 assaults against female victims in July, August, and September. In the same period, 881 women were murdered.[7] This is a worrying trend that has been identified and reported globally. The Minister of Police described South Africa as being brutal and dangerous to women and children.[8] In Tshabalala v S.,[9] the court observed that hardly a day passes without any incident of gender-based violence being reported.[10] The number of social media campaigns seeking justice for victims of gender-based violence also demonstrates this.[11] These crimes are mostly publicised on social media platforms, which results in campaigns and hashtags ‘justice for victims of gender-based violence’, which have created a perception that the criminal justice system is failing to prioritise the interests of victims of gender-based violence. As a result, they resort to social media or commit vigilantism. The effect of gender-based violence is a significant human rights infringement with real social and formative effects on the victims, their families, networks, communities, and society.[12] In response to this scourge, three anti-GBV laws were enacted, namely the Criminal and Related Matters Amendment Act,[13] the Criminal Law (Sexual Offences and Related Matters) Amendment Act,[14] and the Domestic Violence Amendment Act.[15] This paper focuses on the recently assented anti-GBV laws, arguing for the proper implementation and effectiveness of these anti-GBV laws in protecting and promoting the interests or rights of victims of GBV as well as eliminating the high rise in cases of gender-based violence. It also argues against the public’s perceptions, which are based mostly on social media platforms, that the criminal justice system favours the perpetrators of GBV instead of protecting the victims. 1. Synopsis of Cases of Gender-Based Violence in South Africa This section presents a brief overview, albeit not comprehensive or exhaustive, of a range of atrocious offences documented in diverse media platforms, perpetrated against women and identified as having elicited significant public reaction. In 2013, a 17-year-old Anene Booysen was brutally attacked, raped, and disembowelled in Bredasdorp, Western Cape. In 2017, a 22-year-old Karabo Mokoena went missing, and her body was later found burned in an open field in Johannesburg. In 2019, a 19-year-old university student Uyinene Mrwetyana was raped and murdered at a post office in Cape Town. Pule, a 28-year-old South African woman, 8 months pregnant at the time, was declared missing. After an investigation, police established that her boyfriend, Ntuthuko Shoba, was responsible for her murder by hiring a hitman to kill her. Ms Namhla Mtwa was brutally gunned down at the gate of her home in Mthatha, and no arrests have been made regarding her death to date. In 2021, a 23-year-old law student, Nosicelo Mtebeni, was killed and her body dismembered; her body was found stuffed inside a suitcase in East London by her boyfriend. The body of a female child aged 6 was discovered concealed beneath a bed subsequent to her disappearance being documented on Thursday, the 7th of December 2023, within the vicinity of NU 13 Inyibiba near Mdantsane in the Eastern Cape. The individual responsible for this act met his demise due to the vigilante actions carried out by the community’s residents. These are not the only victims of GBV; the list is endless, which is an alarming factor that needs to be addressed. This paper notes the responses to protecting the victims of GBV, such as the establishment of the Commission of Gender Equality (CGE) in terms of section 187 of the Constitution, which promotes gender equality and protection, development, and attainment of gender equality.[16] 2. Legal Framework on Gender-Based Violence in South Africa GBV is also a human rights issue as it violates the rights of its victims. GBV is recognised as being not only a South African issue; rather, it is a worldwide problem. The spate of GBV has existed for a long time; in South Africa, it is also linked to the apartheid regime, which discriminated against blacks.[17] However, when South Africa became a democratic country, it tried to eliminate all the roots of apartheid, including gender-based violence. This part analyses the legal instruments developed to fight GBV nationally and internationally. 2.1. International legal instruments on GBV South Africa adheres to numerous international instruments aimed at fostering equality and non-discrimination. The eradication of gender-based violence stands out as a primary objective in upholding the principles of the global community. Reflecting on the year 1948, when the Universal Declaration of Human Rights was adopted,[18] South Africa, despite refraining from signing the declaration due to the apartheid regime, contributed to the consolidation of a rights framework that promoted international peace at the domestic level. The International Covenant on Civil and Political Rights (ICCPR), enforced in 1976, prohibits discrimination based on gender.[19] There is a contention that the ICCPR’s prohibition of “inhuman or degrading treatment” should be construed as a prohibition against violence towards women. The Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1979 marked a significant advancement in securing essential rights for women.[20] It mandates states to undertake necessary actions, such as legal reforms, to amend or eliminate existing laws, regulations, customs, and practices that perpetuate discrimination against women.[21] In 1993, the United Nations Declaration on the Elimination of Violence against Women (“DEVAW”) was adopted by the UN General Assembly.[22] This declaration characterises violence as any form of gender-based aggression leading to, or having the potential to result in, physical, sexual, or psychological harm or distress to women. It encompasses acts such as threats, coercion, or unwarranted deprivation of freedom, whether occurring within the public sphere or in private settings. Member states are urged by DEVAW to diligently strive to prevent, investigate, and, in accordance with domestic laws, penalize instances of gender-based violence, regardless of whether such acts are perpetrated by state entities or private individuals.[23] 2.2. South African laws on GBV South Africa has made huge progress in developing a legal framework that aims at eliminating gender-based violence and promoting and protecting the victims of gender-based violence. Apart from the provisions of the South African Constitution that promote equality,[24] non-discrimination,[25] and dignity[26] in all races and genders, South Africa has passed legislation in this regard with far-reaching consequences on GBV. There are laws that are enacted, for example Domestic Violence Act of 1998 as amended by the Domestic Violence Amendment Act of 2021, which is known as the legislation that protects the victims of GBV. The alarmingly high rates of GBV in South Africa led to the amendment of the Criminal and Related Matters Amendment Act,[27] Criminal Law (Sexual Offences and Related Matters) Amendment Act,[28] and the Domestic Violence Amendment Act.[29] These laws were formulated after the 2018 National Presidential Summit on GBV, which gave rise to the country’s National Strategic Plan of GBV.[30] The ‘anti-gender-based violence laws’ focus on the rights and interests of victims of gender-based violence in the criminal justice system. DVAA came into operation on 5 August 2022. The purpose of the Act is to inter alia amend the CPA to further regulate the granting and the cancellation of bail in domestic-related offences.[31] It also seeks to regulate sentences in respect of offences that have been committed against vulnerable persons. This resulted in the amendment of the CPA.[32] DVAA also precludes the release on bail of the person arrested for allegedly committing an offence listed under section 1 of the Domestic Violence Act, which involves persons who are in a domestic relationship. DVAA seeks to protect the victims of domestic and gender-based violence by tightening bail provisions applicable to such matters. The Criminal Law (Sexual Offences and Related Matters hereinafter SORMA) Amendment Act took place on 31 July 2022. An essential objective of the SORMA Amendment Act is to enhance the legal framework by introducing a range of new sexual offences. The SORMA Amendment Act establishes a new offence known as sexual intimidation.[33] This transgression occurs when an individual, with intent and unlawfully, communicates a threat to a complainant that gives rise to a reasonable apprehension of impending harm in the complainant, suggesting that a sexual offence will be perpetrated against the complainant, a family member, or an individual in a close relationship with the complainant. The scope of the offence of sexual intimidation is broader and encompasses the threat of impending harm. Any sexual offence had awareness of a child being a victim of a sexual offence, they were obligated to report such details to a law enforcement officer. Failing to comply constituted an offence, and upon conviction, the individual could face a maximum sentence of five years’ imprisonment.[34] The enactment of the Criminal and Related Matters Amendment Act (CRMAA) took effect on 5 August 2022. In contrast to the SORMA Amendment Act and the DVAA, which specifically address issues related to domestic violence and sexual offences, the scope of CRMAA is broader and more general. This legislation modifies various laws, including the Criminal Procedure Act[35] and the Criminal Law Amendment Act[36], to enhance support for victims of gender-based violence. CRMAA sanctions the utilisation of intermediaries to facilitate testimony in court by vulnerable witnesses, such as children, elderly individuals, or those with physical, mental, or emotional conditions, in proceedings other than criminal trials.[37] Historically, many vulnerable witnesses have experienced intimidation and distress while testifying in court, leading to a feeling of being unheard or unfairly treated.[38] This has discouraged witnesses and eroded public trust in the legal system.[39] The amendment allows these witnesses to testify without being physically present in court, utilising an intermediary from a more informal setting, promoting their comfort and avoiding potential distress. The Act imposes stricter criteria for bail considerations in cases involving domestic violence offenses or violations of protective orders,[40] criminalising breaches of court orders aimed at safeguarding individuals from the accused.[41] Furthermore, CRMAA mandates harsh minimum sentences for convictions of murder or attempted murder where the victim is/was in a domestic relationship with the perpetrator, as well as in cases of rape involving a child, elderly person, individual with a disability, or someone in a domestic relationship with the perpetrator.[42] The imposition of minimum sentences aims to shield vulnerable groups from violent crimes, addressing instances where the justice system failed to protect gender-based violence victims, sometimes resulting in continued suffering or tragic outcomes despite seeking help from authorities.[43] All these Acts underscore the government’s commitment to preventing such occurrences, signalling zero tolerance for gender-based violence and ensuring decisive action against offenders to safeguard victims’ rights. 3. Effectiveness of the Implementation and Enforcement of the Anti-GBV Laws for Victims of GBV in South Africa From the above analysis and discussion, it has been observed that the recently enacted anti-GBV laws provide measures that may successfully curb the scourge of GBV in South Africa. It is also apparent that the criminal justice system played a role in this pandemic, as it has been identified as neglecting the victims of GBV; this is also evidenced in S. v Tshabalala.[44] This section responds to the recurring nature of these offenses and implicates the implementation and enforcement of these anti-GBV laws. It also argues that proper implementation and enforcement of these laws may be the solution to the scourge of GBV in South Africa. Tlaletsi AJ in AK. v Minister of Police[45] held that ‘The state has a duty to protect women against all forms of gender-based violence that impair their enjoyment of fundamental rights and freedoms. It has to take reasonable and appropriate measures to prevent the violation of those rights. The South African Police Service (SAPS) is one of the primary state agencies responsible for the protection of the public in general, in particular women and children, against the invasion of their fundamental rights by perpetrators of violent crimes. The courts are also under a duty to send a clear message to perpetrators of gender-based violence that they are determined to protect the equality, dignity, and freedom of all women’.[46] These amendments are important as they simplify the process for individuals seeking protection orders against perpetrators. This constitutes a crucial measure in enhancing personal safety against violence and abuse. The amendments are geared towards ensuring accountability among personnel responsible for assisting individuals reporting domestic abuse or seeking protection orders. Provisions of the Criminal Law (Related Matters Amendment Act) place a duty on the public to report any form of GBV that they have or may have noticed on someone else’s behalf. Failure to do so may result in an offence and a sentence of at least 5 years. This entails that the normal trend is that it is only the duty of the police to protect society; however, the public must not normalise GBV, and that it is not only the victim who must lay charges or report the GBV. This paper argues against the public’s perception of the judiciary and concurs with Ntlama[47] that the judiciary is independent and the confidence in the judiciary cannot be replaced by the invidious philosophies that appear to compromise the independence of the judiciary.[48] The public is compelled by this Act to report such instances even without the victim’s permission. These anti-GBV laws have paved the way in reducing GBV that has bitten South Africa, and attempts to restore the dignity and reputation of both the criminal justice system and the judiciary. In essence, the legislature has, as a result, effected an overhaul of the Domestic Violence Act to be more responsive to the need to afford maximum protection to women and girls who are exposed to domestic and gender-based violence.[49] This is propelled by the global quest for the creation of a specific crime or offence of domestic violence. South Africa is appropriately taking heed of that call with the hopes of reducing the scourge of domestic violence and maybe, with time, reducing it to a comfort level of societal safety. Conclusion The scourge of GBV in South Africa has resulted in the enactment of more effective laws regulating GBV. Although South Africa is known as a country that promotes and protects human rights through its Constitution, it is disheartening to witness it being recorded globally as a country that is almost helpless in fighting GBV. This scourge has caused major issues for mostly the criminal justice system. Enacting the anti-GBV laws has shed light on not disapproving of the public’s opinion on the way that the criminal justice system has been handling things regarding GBV. From the above discourse, these anti-GBV laws promote the protection and possible ways that the courts must adhere to when dealing with cases of GBV and protect the rights and interests of the victims. Proper implementation and enforcement of the provisions of DVAA on protection orders can become a great initiative in eliminating or significantly reducing GBV. This paper affirms that the duty to curb the scourge of GBV does not lie only in the criminal justice system alone; the legislative framework that regulates GBV also places a duty on the public as well, that they must report any suspicious incidents of GBV. Bibliography Articles: George, L. (2020). Gender-Based Violence Against Women in South Africa. Ballard Brief: Vol. 2020, Issue 2, Article 7. Available at: <https://scholarsarchive.byu.edu/ballardbrief/vol2020/iss2/7> (Last access: 15.05.2024); Laws and policies to prevent and respond to violence against women and children in South Africa by University of Cape Town Children’s Rights Institute; Mbandlwa, T. (2022). Women’s Day, Women’s Month for Who? For South African Women or South African Government and Politicians? Journal of Pharmaceutical Negative Results (13), 269; Meyiwa, T., Williamson, C., Maseti, T., Ntabanyanecom, G.-M. (2017). A Twenty-Year Review of Policy Landscape for Gender-Based Violence in South Africa. Gender and Behavior, Vol. 15, no. 2; Mpako, A., Ndoma, S. (2023). South Africans see gender-based violence as most important women’s-rights issue to address. Institute for Justice and Reconciliation; National Strategic Plan on Gender Based Violence and Femicide is a policy document developed to address GBVF in South Africa; Ncube, P.M. (2021). Protection Orders in South Africa: The Effectiveness of Implementation and Enforcement for Victims of Gender-Based Violence. Unpublished Dissertation. (M.Phil.). University of Cape Town; Nobanda, L., Nkosi, S.L., Sibanyoni, E.K. (2021). A Possible Explanation of Violence Against Women During the Covid-19 Lockdown in South Africa: A Systematic Review. Acta Criminologica: African Journal of Criminology & Victimology, Vol. 34, no. 3; Nomnganga, P. (2021). The Right to a Speedy Trial for Crime Victims in South Africa. LLM Dissertation at Walter Sisulu University (Unpublished), 31; Ntlama, N. (2020). Gender-Based Violence Ignites Re-emergence of Public Opinion of Judicial Authority. De Jure Law Journal, 286-306; South African Government. Minister General Bheki Cele: Quarter four Crime Statistics 2023/24. Available at: <www.gov.za> (Last access: 05.02.2025); The World Bank. (2019). Gender-Based Violence (Violence against Women and Girls). Available at: <https://www.worldbank.org/en/topic/socialdevelopment/brief/violence-against-women-and-girls>. (Last Access: 15.01.2025); UN High Commissioner for Refugees (hereinafter UNHCR). Sexual and Gender Based Violence. Available at: <https://www.unhcr.org/sexual-and-gender-based-violence.html> (Last access: 15.06.2024); Ziniakova, T. (2021). Gender-Based Violence in International Human Rights Law: Evolution Towards a Binding Post-Binary Framework. William & Mary Journal of Race, Gender, and Social Justice, Vol. 27, Issue 3, 709. (2021). Available at: <https://scholarship.law.wm.edu/wmjowl/vol27/iss3/4> (Last access: 15.01.2025). International and Domestic Legal Acts: 1948 Universal Declaration of Human Rights; 1976 International Covenant on Civil and Political Rights; Constitution of the Republic of South Africa, 1996. Convention on the Elimination of All Forms of Discrimination against Women; Criminal and Related Matters Amendment Act 12 of 2021; Criminal Law Amendment Act 105 of 1997; Criminal Law Sexual Offences and Related Matters Amendment Act 13 of 2021; Criminal Procedure Act 51 of 1977; Declaration on the Elimination of Violence against Women Proclaimed by General Assembly resolution 48/104 of 20 December 1993; Domestic Violence Act 116 of 1998; Domestic Violence Amendment Act 14 of 2021; Harassment Act 12 of 2011. List of Cases: v Minister of Police, 2022, ZACC 14; Maila v The State 2023ZASCA 3; v Makatu. 2014 (2), SACR; v Robertson 2023 (2) SACR 156 (WCC); v Tshabalala 2022 ZAGPJHC 881; Tshabalala v S. 2020 (5) SA 1 (CC). Footnotes [1] Ziniakova, T. (2021). Gender-Based Violence in International Human Rights Law: Evolution Towards a Binding Post-Binary Framework. William & Mary Journal of Race, Gender, and Social Justice, Vol. 27, Issue 3, 709. (2021). Available at: <https://scholarship.law.wm.edu/wmjowl/vol27/iss3/4> (Last access: 15.01.2025). [2] S. v Makatu. 2014 (2), SACR. [3] S. v Makatu. Supra, para 30. [4] UN High Commissioner for Refugees (hereinafter UNHCR). Sexual and Gender Based Violence. Available at: <https://www.unhcr.org/sexual-and-gender-based-violence.html> (Last access: 15.06.2024). [5] The World Bank. (2019). Gender-Based Violence (Violence against Women and Girls). Available at: <https://www.worldbank.org/en/topic/socialdevelopment/brief/violence-against-women-and-girls>. (Last Access: 15.01.2025). [6] Ncube, P.M. (2021).Protection Orders in South Africa: The Effectiveness of Implementation and Enforcement for Victims of Gender-Based Violence. Unpublished Dissertation. (M.Phil.). University of Cape Town. [7] South African Government. Minister General Bheki Cele: Quarter four Crime Statistics 2023/24. Available at: <www.gov.za> (Last access: 05.02.2025). [8] Ibid. [9] Tshabalala v S. 2020 (5) SA 1 (CC). [10] Tshabalala case, para 61. [11] Each day in South Africa, a woman or girl is murdered/raped or abused. To name the few cases of gender-based violence that have been doing rounds are, Uyinene Mrwetyana, who was a 19-year-old lady that was tortured to death by a male Post Office employee. Nosicelo Mtembeni, was a 23-year-old final year student who was brutally butchered to death by her boyfriend. [12] Nobanda, L., Nkosi, S.L., Sibanyoni, E.K. (2021). A Possible Explanation of Violence Against Women During the Covid-19 Lockdown in South Africa: A Systematic Review. Acta Criminologica: African Journal of Criminology & Victimology, Vol. 34, no. 3. [13] Criminal and Related Matters Amendment Act 12 of 2021 (hereafter CRMAA). [14] Criminal Law Sexual Offences and Related Matters Amendment Act 13 OF 2021 (hereafter SORMA). [15] Domestic Violence Amendment Act 14 of 2021 (hereafter DVVA). [16] Section 187(1) provides that the Commission for Gender Equality must promote respect for gender equality and the protection, development, and attainment of gender equality. [17] Meyiwa, T., Williamson, C., Maseti, T., Ntabanyanecom, G.-M. (2017). A Twenty-Year Review of Policy Landscape for Gender-Based Violence in South Africa. Gender and Behavior, Vol. 15, no. 2. [18] 1948 Universal Declaration of Human Rights. This segment underscores the significant international agreements, treaties, declarations, resolutions, and norms concerning gender-based violence. The Universal Declaration of Human Rights from 1948 serves as the fundamental cornerstone at the global level in the fight against violence targeting women. It delineates the fundamental rights and principles of equality, security, freedom, integrity, and dignity for all individuals, including women. [19] 1976 International Covenant on Civil and Political Rights. [20] Convention on the Elimination of All Forms of Discrimination against Women Adopted and opened for signature, ratification, and accession by General Assembly resolution 34/180 of 18 December 1979 entry into force 3 September 1981, in accordance with article 27(1). [21] Article 1 of CEDAW defines the term “discrimination against women” shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field. [22] Declaration on the Elimination of Violence against Women Proclaimed by General Assembly resolution 48/104 of 20 December 1993. [23] Article 2 of DEVAW. Violence against women shall be understood to encompass, but not be limited to, the following: (a) Physical, sexual and psychological violence occurring in the family, including battering, sexual abuse of female children in the household, dowry-related violence, marital rape, female genital mutilation and other traditional practices harmful to women, non-spousal violence and violence related to exploitation; (b) Physical, sexual and psychological violence occurring within the general community, including rape, sexual abuse, sexual harassment and intimidation at work, in educational institutions and elsewhere, trafficking in women and forced prostitution; (c) Physical, sexual and psychological violence perpetrated or condoned by the State, wherever it occurs. [24] Section 1 (a) of the Constitution of 1996 is founded on the values of (a) Human dignity, the achievement of equality and the advancement of human rights and freedoms; (b) non-racialism and non-sexism. [25] Section 9 (3) of the Constitution of 1996. [26] Section 10 of the Constitution of 1996. [27] Act 12 of 2021. [28] Act 13 of 2021 [29] Act 14 of 2021 amending the Domestic Violence Act 116 of 1998. [30] The National Strategic Plan on Gender Based Violence and Femicide is a policy document developed to address GBVF in South Africa. [31] S. v Robertson. 2023 (2) SACR 156 (WCC). [32] Act 105 of 1997. [33] Section 14A of the Sexual Offenses Related Maters Amendment Act 13 of 2021. [34] Laws and policies to prevent and respond to violence against women and children in South Africa by University of Cape Town Children’s Rights Institute. [35] Criminal Procedure Act 51 of 1977. Hereafter CPA. [36] Criminal Law Amendment Act 105 of 1997. [37] Section 59 of CRMAA. [38] Mbandlwa, T. (2022). Women’s Day, Women’s Month for Who? For South African Women or South African Government and Politicians? Journal of Pharmaceutical Negative Results (13), 269. [39] Nomnganga, P. (2021). The Right to a Speedy Trial for Crime Victims in South Africa. LLM Dissertation at Walter Sisulu University (Unpublished), 31. [40] Mpako, A., Ndoma, S. (2023). South Africans see gender-based violence as most important women’s-rights issue to address. Institute for Justice and Reconciliation. [41] Domestic Violence Amendment Act and the Harassment Act 12 of 2011. [42] Section 59 of CRMAA. [43] Maila v The State, 2023, ZASCA 3. [44] S. v Tshabalala, 2022, ZAGPJHC 881. [45] AK. v Minister of Police, 2022, ZACC 14. [46] AK. v Minister of Police supra, para 3. [47] Ntlama, N. (2020). Gender-Based Violence Ignites Re-emergence of Public Opinion of Judicial Authority. De Jure Law Journal, 286-306. [48] Ibid. [49] George, L. (2020). Gender-Based Violence Against Women in South Africa. Ballard Brief: Vol. 2020, Issue 2, Article 7. Available at: <https://scholarsarchive.byu.edu/ballardbrief/vol2020/iss2/7> (Last access: 15.05.2024).
The Compromise Nature of Property Rights in Action – Tolerating Neighboring Nuisances?
This article explores the evolving conception of property rights as individual entitlements and socially embedded institutions, emphasizing neighbor law and the duty of tolerance. While civil-law traditions traditionally conceptualize ownership as an exclusive and absolute right, modern legal systems increasingly recognize that property must serve a social function and coexist with the rights and interests of others. Using the Georgian legal framework (Article 175 of the Civil Code), the paper examines how legal norms mediate conflicts between neighboring property owners, particularly where environmental degradation or industrial activity undermines the peaceful enjoyment or economic use of property. The article emphasizes the role of regulatory mechanisms, such as environmental and construction standards, and highlights the judiciary’s critical function in determining the permissible scope of interference on a case-by-case basis. Drawing upon the jurisprudence of the European Court of Human Rights, it analyzes how the Court balances individual property rights under Article 1 of Protocol No. 1 with broader concerns addressed under Article 8 of the European Convention on Human Rights. By integrating national legal norms with international human rights standards, the article aims to delineate a coherent framework for resolving property-related conflicts in a manner that respects both private autonomy and the public interest. Key words: Property rights, environmental disturbance, tolerating neighboring nuisance. Introduction As a foundational element of a free and democratic society, property rights underpin individual liberty and enable personal development.[1] Far from being merely an economic asset, property provides a sphere of autonomy, continuity, and control in which individuals exercise self-determination, assume responsibility, and fully participate in social and economic life.[2] In civil-law traditions, ownership is traditionally conceived as an exclusive, absolute right:[3] the owner may use, enjoy, and dispose of the property at will, excluding others from interference and enforcing protection through remedies such as rei vindicatio and actio negatoria.[4] However, property—though often portrayed as the archetype of individual autonomy—is neither a purely private nor an isolated institution. It is inherently linked to spatial context and embedded within a broader social milieu. As such, it serves as a medium through which individuals exert influence over their environment while remaining subject to regulations and constraints.[5] This duality underscores that ownership entails not only control over resources but also responsibilities shaped by both legal norms and social expectations. Accordingly, the idea that property carries a social function has gained widespread recognition: the right to exclude is not absolute, and the use of property must not unduly infringe upon the rights of others or undermine the public interest.[6] It is precisely this need to balance private and public interests that gives rise to the state’s positive obligation in safeguarding property rights. Under constitutional frameworks, including that of Georgia, the right to property is protected not only from unlawful state interference (a negative obligation)[7] but also through the establishment of a legal and regulatory environment that ensures one owner’s use does not disproportionately infringe upon others’ rights or the public good.[8] Neighborhood law exemplifies how legal systems balance competing private interests. The Civil Code of Georgia establishes a general obligation of mutual respect among neighbors, requiring property owners to exercise their rights in ways that recognize and accommodate the rights of others.[9] Article 175 specifically recognizes that certain impacts—such as noise, emissions, or vibrations—must be tolerated within reasonable limits.[10] This duty of tolerance reflects the inherently social nature of property rights and the necessity of coexistence in densely inhabited spaces.[11] In some cases, the impact arising from adjacent landmay significantly degrade environmental conditions to the point where a property becomes uninhabitable or unusable for economic purposes. Such adverse effects—whether from industrial activity, construction, or other externalities—underscore the importance of a legal framework that balances economic development with the protection of individual property rights.[12] While economic or industrial development may serve the public interest, it should not unfairly harm neighboring property owners. Clear environmental and construction regulations must limit noise, emissions, and other disturbances to protect both the environment and peaceful enjoyment. However, legislation alone cannot fully address the complexities of real-world urban conflicts.[13] Thus, beyond codified rules, courts play a crucial role in defining the scope of acceptable impact. Through case-by-case adjudication, they interpret general legal norms, ensuring proportionality and fairness. This judicial oversight prevents both economic development and environmental protection from becoming absolute, promoting a balanced coexistence of private rights and public interests. The European Court of Human Rights (ECtHR) has developed a nuanced framework for resolving conflicts where environmental nuisances—often stemming from economic, industrial, or public interests—interfere with the rights of neighboring property owners. While Article 1 of Protocol No. 1 (A1P1)[14] protects the peaceful enjoyment of possessions, such cases are frequently examined under Article 8 of the European Convention on Human Rights (ECHR),[15] which safeguards private and family life, home, and correspondence. This dual approach reflects the Court’s recognition that environmental harms implicate both property rights and broader human rights. For Georgia, as a Contracting State, alignment with Strasbourg jurisprudence is essential. Judicial oversight ensures proportionality in balancing individual property rights against evolving social, economic, and environmental needs. This article analyzes ECtHR case law to elucidate the legal principles underpinning the reconciliation of these competing interests in property law. 1. Property Rights and Environmental Challenges: Controversies under the ECHR Article 1 of Protocol No. 1 to the European Convention on Human Rights guarantees the right to property. In Marckx v. Belgium, the European Court of Human Rights clarified that the provision, by referring to the “peaceful enjoyment of possessions” and the “use of property”, substantively secures property rights. This protection extends beyond formal ownership to encompass the ability to use, manage, and dispose of property, underscoring its essential role in individual autonomy and legal certainty (§ 63).[16] The ECtHR adopts a broad interpretation of “possessions” under A1P1, covering both tangible and intangible assets, including property and claims based on legitimate expectations. This protection extends beyond domestic legal classifications to include rights in rem and in personam, as well as movable and immovable property. Even interests not formally recognized under national law may qualify as “possessions” under the Convention.[17] A property right may be protected as a “possession” under A1P1 even if it is revocable or contested under domestic law, at least until the revocation takes effect.[18] The ECtHR also safeguards legitimate expectations, including de facto possession and contractual claims. In Beyeler v. Italy, the Court upheld a proprietary interest despite a void contract, emphasizing long-term possession, official recognition, and compensation, reflecting its pragmatic approach to both formal and practical property rights (§§ 104–105).[19] A1P1 sets out three rules: (1) a general principle of peaceful enjoyment of possessions, (2) conditions for lawful deprivation of possessions, and (3) the state’s right to control property use in the public interest.[20] When interference doesn’t fit the second or third rule, the first rule applies (the so-called catch-all formula).[21] Interestingly, according to ECtHR’s established case law, interferences with property rights arising from environmental degradation or neighboring nuisances—such as noise, odors, vibrations, or pollution—are generally assessed under Article 8 of the ECHR, which protects private and family life, rather than under Article 1 of Protocol No. 1. (A1P1). The Court has clarified that A1P1 does not guarantee enjoyment of possessions in a pleasant or pollution-free environment. In Flamenbaum and Others v. France concerning airport expansion, the Court reaffirmed that such issues fall more appropriately within the scope of Article 8 (§184).[22] In cases such as Udovičić v. Croatia[23] and Surugiu v. Romania,[24] where the Court identified a breach of Article 8 due to nighttime noise from a bar or authorities’ failure to respond effectively to persistent neighborhood disturbances, it found no need to separately assess a potential violation of Article 1 of Protocol No. 1.[25] Nevertheless, the ECtHR recognizes that severe environmental degradation can violate Article 1 of Protocol No. 1 when it significantly impairs a property’s value, usability, or control, or imposes an excessive burden on the owner. In Öneryıldız v. Turkey,[26] the Court found violations of Articles 2, 13, and A1P1 after a methane explosion at a state-run rubbish tip in Ümraniye, Istanbul, killed nine of the applicant’s relatives and destroyed his home. The dump, operated by the Istanbul City Council, lacked safety measures despite warnings about methane risks. The authorities failed to act, neglecting preventive measures like gas-extraction systems or resident warnings. Despite the applicant’s home being built without authorization on Treasury land, the ECtHR rejected the government’s claim that it wasn’t a protected “possession”. The Court emphasized that even informal property may fall within the ambit of A1P1 when there is a sufficient degree of recognized occupancy and stability, especially where the State has tolerated the presence of such settlements and facilitated their integration. The destruction of the home, combined with the State’s negligence, breached the right to peaceful enjoyment of possessions, highlighting how environmental harm and government inaction can violate property rights when the State fails to balance private and public interests. In Öneryıldız v. Turkey, Judges Tümen and Mularoni dissented, arguing that A1P1 did not apply because the applicant’s illegally built dwelling on Treasury land was not a protected “possession”. They highlighted the absence of a legitimate property right or enforceable claim and maintained that state tolerance cannot create a proprietary interest. They cautioned that recognizing such claims could undermine town-planning laws, encourage illegal construction, and obstruct regulatory enforcement. This case illustrates the ECtHR’s broad and pragmatic interpretation of “possessions”, extending protection to both tangible and intangible interests, including those not formally recognized under domestic law. While environmental nuisances are typically examined under Article 8 of the Convention, the Court acknowledged that, in exceptional cases where environmental harm severely impairs property use or value, A1P1 may also be engaged, particularly if the State fails to strike a fair balance between individual rights and public interests. 2. Article 8 of the ECHR and Environmental Nuisances Article 8 of the ECHR guarantees the right to respect for private and family life, home, and correspondence, forming a key basis for addressing environmental nuisances that impair the enjoyment of one’s home. The European Court of Human Rights has repeatedly found that serious harms—such as noise, pollution, and toxic emissions—may violate this right, particularly where states fail to prevent or mitigate the disturbance.[27] This chapter examines the Court’s approach to environmental nuisances under Article 8, focusing on how it balances individual rights with public interests and the implications for protecting property in cases of environmental degradation. 2.1. Noise disturbance and the right to enjoy one’s home Under the ECHR, the right to respect for one’s home extends beyond the mere physical space to include the ability to enjoy it peacefully. This right imposes positive obligations on public authorities to take appropriate measures, including the enforcement of court decisions, to safeguard individuals from interference. Such interferences may be physical, such as unauthorized entry, or non-physical, including excessive noise, odors, or other environmental nuisances. When these disturbances—whether caused by private individuals, commercial activities, or public bodies—go beyond the level of ordinary neighborly inconvenience, they may violate the right to quiet enjoyment of the home.[28] However, an issue under Article 8 only arises if individuals are directly and seriously affected by the nuisance in question and are able to prove the direct impact on their quality of life.[29] In Moreno Gómez v. Spain,[30] the ECtHR established that persistent noise pollution can violate Article 8 of the ECHR, which protects the right to respect for private and family life and home. Ms. Pilar Moreno Gómez, a Valencia resident since 1970, suffered chronic sleep disturbances and health issues due to excessive night-time noise from bars and discotheques authorized by the City Council since 1974. Despite reports confirming noise levels exceeded legal limits and the area’s designation as an “acoustically saturated zone” in 1997, the authorities continued issuing licenses, including one for a discotheque in her building, later annulled. Ms. Moreno Gómez’s claim against the City Council, alleging violations of her rights to physical integrity and home under the Spanish Constitution, was dismissed by domestic courts for lack of direct evidence linking the noise to her harm. The ECtHR ruled that Spain’s failure to enforce noise regulations breached its positive obligations under Article 8 to ensure a peaceful home environment. The Court rejected the demand for direct evidence of noise inside her apartment as overly formalistic,given the authorities’ acknowledgment of excessive noise levels through municipal reports and the “acoustically saturated zone” designation.[31] This inaction, persisting over years, impaired Ms. Moreno Gómez’s well-being, leading to an award of €3,884 in non-pecuniary damages for mental anguish. The judgment set a landmark precedent, affirming that severe noise pollution, as an environmental nuisance, engages Article 8 when states fail to act. It underscored the state’s duty to enforce environmental regulations diligently, ensuring Convention rights are practical and effective, and established a standard for addressing noise disturbances across Contracting States.[32] Similar findings were reached by the European Court of Human Rights (ECtHR) approximately a decade later in the case of Udovičić v. Croatia.[33] In this case, the applicant, Ms. Udovičić, lodged a complaint against the Croatian authorities for their prolonged failure to address excessive noise and other disturbances originating from a bar located beneath her flat in Cubinec, Croatia—a property she had co-owned and inhabited since 1991. The disturbances began in August 2002 when construction commenced to convert the premises into a bar and retail shop. Over the following years, Ms. Udovičić filed numerous complaints raising concerns about the legality of the bar’s operating license, insufficient sound insulation, and persistently excessive noise levels. Despite initiating both administrative and civil proceedings, her efforts proved unsuccessful. Her civil claim, filed in 2006, was dismissed in 2007 on the grounds that the noise did not exceed legal thresholds. Subsequent constitutional and criminal complaints were similarly rejected in 2008. The ECtHR found a violation of Article 8 of the European Convention on Human Rights. The Court reaffirmed that environmental pollution, including noise, may constitute an infringement of Article 8 rights when it reaches a certain level of severity. Whether this threshold is met depends on factors such as the intensity and duration of the nuisance, and the degree of its impact on an individual’s health or quality of life (§ 139). In its assessment, the Court examined several expert reports. While some indicated compliance with regulatory noise limits, others showed exceedances. Significantly, the most recent expert assessment confirmed that noise levels exceeded permissible standards and that the soundproofing measures in place were inadequate. The Court also highlighted the bar’s continuous operation for over a decade and the high number of police interventions—87 in total, resulting in 42 administrative measures related to breaches of public order (§§ 141–149). Despite Ms. Udovičić’s repeated appeals to administrative bodies, the authorities failed to adopt any effective remedial measures. This prolonged inaction reflected a lack of due diligence and a failure to appropriately balance the competing interests involved (§§ 152–160). The Court emphasized that although Article 8 does not impose specific procedural requirements, the decision-making process must be fair and must duly consider the interests protected by Article 8 (§ 151). Relevant procedural safeguards include the nature of the decision-making process, the extent of individual participation, and the availability of adequate remedies. Ultimately, the Court held that the Croatian authorities had not fulfilled their positive obligations under Article 8. By allowing the disturbances to persist for over a decade without effective intervention, the state failed to protect Ms. Udovičić’s right to respect for her private life and home. This judgment underscores the importance of procedural fairness and proactive state measures in addressing environmental nuisances that interfere with Convention rights. In Hatton and Others v. United Kingdom (2001), [34] residents near London’s Heathrow Airport challenged night flight restrictions, claiming excessive noise violated their Article 8 ECHR right to private and family life. Despite a 1993 UK quota system limiting noise from aircraft, particularly during 11:30 p.m. to 6:00 a.m., the applicants argued the measures were inadequate. Domestic courts upheld the policy’s legality, exhausting remedies by 1996. The ECtHR Chamber found a violation of Article 8, citing insufficient research on noise-related sleep and health impacts, failure to explore less intrusive alternatives, and inadequate justification of economic benefits. The UK’s quota system did not sufficiently balance residents’ rights against economic interests, rendering the interference disproportionate. Additionally, a violation of Article 13 was found, as the UK judicial review was too narrow, focusing on procedural rationality rather than substantive proportionality. The ruling highlighted states’ positive obligations to mitigate environmental nuisances like aircraft noise, ensuring a fair balance between the competing interests—those of the affected residents and those of the wider public economy. Interestingly, the Grand Chamber of ECtHR reversed the earlier judgement in 2003, ruling no violation of Article 8 of the ECHR.[35] The Grand Chamber emphasized the UK’s “margin of appreciation”, granting states discretion in balancing individual rights with public interests in complex policy areas like aviation and economic planning.[36] It noted the UK’s extensive consultation process, progressive noise mitigation measures (e.g., refined quotas), and the economic importance of night flights for Heathrow’s global competitiveness. The Court held that the UK’s policy was reasonable and proportionate, not arbitrary, and within its discretion, as states are better positioned to assess technical and economic trade-offs, including sleep research and air traffic logistics. The Grand Chamber confirmed that Article 8 applies to environmental nuisances like noise when individuals are seriously affected, whether caused directly by the state or through inadequate regulation of private activity. However, a fair balance must be struck, with states retaining flexibility under Article 8(2). The Hatton and Others v. United Kingdom case (2001, 2003) is pivotal in debates over Article 8 ECHR’s application to environmental nuisances, particularly noise pollution from Heathrow Airport’s night flights. The 2001 Chamber ruling found violations of Articles 8 and 13, criticizing the UK’s quota system for insufficiently protecting residents’ right to a peaceful home. Rhona K.M. Smith praises the Chamber’s rigorous scrutiny, which narrowed the state’s margin of appreciation, independently assessed the policy’s inadequacies, and rejected economic justifications without robust evidence, emphasizing that economic well-being under Article 8(2) does not automatically outweigh individual rights in environmental cases.[37] Conversely, the 2003 Grand Chamber reversed this, upholding the UK’s measures due to thorough consultations, noise mitigation efforts, and economic necessity, granting a wider margin of appreciation. It stressed that states, better equipped to handle complex policy, need only act reasonably, not perfectly, when balancing rights and public interests.[38] This shift from the Chamber’s rights-centric approach to the Grand Chamber’s deferential stance highlights ongoing tensions in prioritizing individual protections versus state discretion in environmental human rights law. Similarly, in Flamenbaum and Others v. France,[39] the ECtHR addressed the conflict between individual residents’ rights and public economic interests arising from noise pollution caused by the expansion of Deauville–Saint-Gatien Airport. Nineteen homeowners, living 500–2,500 meters from the runway, claimed that increased noise from a 1993 runway extension violated their right to private and family life as well as their property rights, moreover alleging procedural flaws in the expansion process. The airport, built in 1931 and upgraded to medium-haul status in 1986, underwent a runway extension in 1993 to support heavier aircraft, intensifying noise for nearby residents. A 1978 noise exposure plan and a 1991 aeronautical constraints plan, approved without an environmental impact assessment (EIA) despite objections from over 500 residents, governed the project. Expert reports confirmed heightened noise levels, but French courts rejected compensation claims, deeming the disturbance typical for airport proximity. Appeals, including to the Conseil d’État, were dismissed by 2003. France later implemented a revised noise exposure plan in 2008 and “reduced noise” procedures in 2009. Under Article 8, the ECtHR found the noise sufficient to engage the right to private life but held that France balanced public economic interests—regional development—against residents’ rights. Despite initial procedural lapses, mitigation measures and thorough domestic judicial review justified the interference, resulting in no violation. For Article 1 of Protocol No. 1, the applicants claimed property devaluation and soundproofing costs, supported by two expert reports. However, one was methodologically flawed, and the other failed to link losses specifically to the runway extension. Lacking clear evidence and given France’s mitigation efforts, the ECtHR found no violation (§§ 188-190). Flamenbaum and Others v. France exemplifies the ECtHR’s pragmatic approach to environmental disputes, prioritizing proportionality and state discretion when mitigation measures are implemented.[40] The ECtHR’s reliance on the “economic well-being of the country” as a legitimate aim under Article 8, even for primarily local economic benefits, mirrors its approach in Hatton and Others v. United Kingdom [GC] (2003) and underscores its jurisprudence on airport-related environmental disputes.[41] The Article 8 ruling reflects deference to France’s efforts to address noise pollution through subsequent plans and procedures, despite initial procedural shortcomings. The Article 1 finding highlights the high evidential threshold for demonstrating property-related harm, requiring a clear causal connection to specific state actions. For litigants, it underscores the necessity of precise, well-substantiated evidence to succeed in environmental and property claims under the ECHR. 2.2. Industrial pollution and the right to respect for one’s home: Reconciling residential rights and public interests Although the ECHR does not explicitly enshrine a right to a healthy environment, the European Court of Human Rights has addressed numerous cases concerning the quality of an individual’s surrounding environment, recognizing that unsafe or disruptive environmental conditions can negatively impact wellbeing.[42] Article 8 may be invoked in such cases, whether the pollution stems directly from State actions or from the State’s failure to adequately regulate private sector activities. However, a claim under Article 8 requires individuals to demonstrate that they are directly and seriously affected by the environmental nuisance and to provide evidence of its specific impact on their quality of life.[43] In López Ostra v. Spain,[44] the European Court of Human Rights (ECtHR) examined whether the severe environmental pollution emanating from a waste treatment plant—intended to process liquid and solid waste—near Ms. López Ostra’s residence constituted a violation of Article 8 of the ECHR, which safeguards the right to respect for private and family life. The plant began operating without the necessary environmental license and quickly started emitting strong odors, fumes, and noise that rendered living conditions intolerable for nearby residents, including the applicant and her family. The Court acknowledged that while Article 8 primarily aims to protect individuals from arbitrary interference by public authorities, it also imposes positive obligations on states to ensure effective respect for private and family life. This includes taking reasonable and appropriate measures to prevent serious environmental pollution from adversely affecting individuals’ well-being and enjoyment of their homes. The Court emphasized that even in the absence of serious health risks, severe environmental pollution could significantly impair individuals’ quality of life and enjoyment of their homes (§ 51). The ECtHR found that the Spanish authorities failed to strike a fair balance between the town’s economic interest in operating the plant and the applicant’s right to respect for her home and private life. Despite repeated complaints from Ms. López Ostra and other residents, and several reports confirming the harmful environmental impact, local and national authorities did not take effective action to mitigate the nuisance or suspend the plant’s operation. As a result, the applicant and her family were forced to temporarily leave their home due to the persistent pollution. The Court further noted that the plant operated without the required environmental license and that the authorities had failed to take timely and effective remedial measures. This amounted to a breach of the state’s positive obligations under Article 8. While the applicant also alleged a violation of Article 3 (prohibition of inhuman or degrading treatment), the Court concluded that, although the conditions were very difficult, they did not reach the required threshold for a violation. Although the ECtHR based its ruling primarily on Article 8, the implications of López Ostra extend to property rights as well. The applicant’s inability to enjoy her home due to environmental pollution can be viewed as an interference with the peaceful enjoyment of her possessions—an aspect protected by Article 1 of Protocol No. 1, even though this provision was not explicitly addressed in the judgment. In Fadeyeva v. Russia, [45] the ECtHR examined whether prolonged exposure to industrial emissions from the Severstal steel plant, one of Russia’s largest iron-smelting facilities, violated Ms. Fadeyeva’s right to respect for private and family life under Article 8. The applicant lived 450 meters from the plant in Cherepovets, within a “sanitary security zone” designated by Russian law as unfit for residential use due to hazardous emissions, including excessive levels of toxic substances like carbon disulfide and formaldehyde. Despite this, the authorities took no effective measures to relocate her or mitigate the environmental risks. The Court reaffirmed that Article 8 imposes positive obligations on States to protect individuals from environmental hazards, whether caused by public or private entities, that significantly impair the enjoyment of their homes and private lives. While some environmental risks may be tolerated for public interest, a fair balance must be struck between economic benefits and individual rights to a safe environment. The Russian authorities failed to enforce environmental regulations or provide Ms. Fadeyeva with alternative housing, despite her placement on a general housing waiting list. This inaction constituted a serious interference with her rights, breaching Article 8. The ECtHR unanimously held that the State’s failure to regulate the privately operated steel plant’s emissions or offer effective remedies violated Article 8. In Giacomelli v. Italy, [46] the ECtHR examined whether emissions, odors, and noise from a chemical waste detoxification plant operated by Ecoservizi, located just 30 meters from Ms. Giacomelli’s home, violated her right to respect for private and family life. The plant operated without compliance with environmental regulations, and despite Italian administrative court orders to suspend its activity, the authorities failed to enforce these rulings or carry out a timely environmental impact assessment (EIA). Ms. Giacomelli argued that this regulatory inaction caused significant disruption to her daily life and posed health risks. The ECtHR reiterated that Article 8 protects not only the physical space of a home but also the right to enjoy it free from serious environmental nuisances (citing Hatton and Others v. the United Kingdom [GC], 2003, § 96). States have a positive obligation to regulate environmental risks to prevent significant interference with private and family life. The Italian government defended the plant’s operation as lawful and beneficial to public health and regional development, but it failed to counter the applicant’s evidence of harm. The Court unanimously found a violation of Article 8, concluding that the failure to enforce court-ordered suspensions, apply environmental legislation, or conduct an EIA constituted a breach of procedural safeguards and permitted unlawful, ongoing interference with the applicant’s home life. The judgment highlights that environmental degradation, combined with prolonged administrative inaction, can violate Article 8. It affirms the State’s duty to enforce environmental regulations effectively and to provide remedies, reinforcing the link between environmental protection and human rights under the Convention. Similarly, in Dubetska and Others v. Ukraine, [47] the ECtHR addressed serious environmental and human rights concerns arising from the State’s failure to regulate industrial pollution and safeguard the living environment of nearby residents. The case involved several families living adjacent to a coal enrichment plant and a thermal power station in the Donetsk region. The applicants alleged that the resulting pollution rendered their homes uninhabitable and posed significant health risks, thus violating their rights under Article 8 of the European Convention on Human Rights. Despite repeated complaints and scientific reports confirming the presence of toxic substances in the air, soil, and drinking water, the authorities failed to adopt effective measures either to curb pollution or relocate the families to safer housing. While the Ukrainian government acknowledged the existence of pollution, it argued that the enterprises operated within legal limits and that various agencies were working to resolve the problem. However, the Court found that the authorities had not taken timely or adequate steps to mitigate the environmental hazards or to protect the applicants’ private and family life. The ECtHR held that there had been a violation of Article 8. It reaffirmed that, although economic development is legitimate, States must strike a fair balance between public interests and individual rights. In this case, the prolonged inaction left families exposed to environmental harm for years, infringing on their ability to enjoy their homes and compromising their well-being. The judgment underscores that mere recognition of environmental risks is insufficient under the Convention; effective remedial or protective action is required to satisfy a State’s positive obligations under Article 8. Conclusion The European Court of Human Rights (ECtHR) has developed a sophisticated jurisprudence addressing environmental nuisances under the European Convention on Human Rights, particularly through Article 8, which safeguards the right to respect for private and family life, home, and correspondence, and, in exceptional cases, Article 1 of Protocol No. 1, protecting the peaceful enjoyment of possessions. An analysis of the ECtHR’s case law shows that the Convention does not offer a direct mechanism for protecting property from environmental nuisances like noise or emissions. Instead, it serves as an auxiliary tool where such nuisances seriously impair quality of life, health, or use of one’s home. The legal status of the property is secondary; the key factor is the impact on fundamental rights. Cases such as López Ostra v. Spain (1994), Fadeyeva v. Russia (2005), Giacomelli v. Italy (2006), Dubetska and Others v. Ukraine (2011), and Öneryıldız v. Turkey (2004) illustrate the Court’s nuanced approach to balancing individual rights against public interests in the context of environmental degradation. These rulings collectively affirm that severe environmental harm—whether from noise, toxic emissions, or pollution—can significantly impair the enjoyment of one’s home, engaging Article 8 when the State fails to act, whether through direct action or inadequate regulation of private entities. The ECtHR consistently underscores States’ positive obligations to implement and enforce effective environmental regulations, conduct timely impact assessments, and provide remedies such as mitigation or relocation to protect residents from serious nuisances. In López Ostra, the Court found Spain’s failure to regulate a waste treatment plant’s emissions, which forced the applicant to relocate, breached Article 8 by neglecting the balance between economic interests and individual well-being. Similarly, Fadeyeva and Giacomelli highlighted regulatory inaction regarding industrial pollution, emphasizing that States must proactively address private-sector harms. Dubetska reinforced this, condemning Ukraine’s failure to mitigate or relocate families affected by coal plant pollution. These cases establish that mere acknowledgment of environmental risks, without effective action, fails to meet Convention standards, as States must ensure practical and effective protection of rights. In exceptional cases, environmental harm may engage Article 1 of Protocol No. 1, as in Öneryıldız, where the destruction of the applicant’s home due to State negligence at a rubbish tip violated property rights. The Court’s broad interpretation of “possessions” to include informal dwellings reflects its pragmatic approach, though dissenting opinions warned against encouraging illegal construction. Cases like Moreno Gómez v. Spain and Udovičić v. Croatia illustrate Article 8’s relevance to urban noise, confirming that persistent disturbances require effective State intervention. In contrast, Hatton and Others v. United Kingdom [GC] and Flamenbaum and Others v. France highlight the Court’s deference to State discretion under the margin of appreciation, especially where mitigation efforts and public benefits are evident, underscoring the balance between individual rights and the public interest. This jurisprudence underscores the interplay between environmental protection, property rights, and human rights. The ECtHR’s approach ensures that States uphold fundamental rights by maintaining a fair balance between individual interests and public needs through effective regulation and oversight. For countries like Georgia, such rulings serve as important guidance for domestic courts in resolving property and environmental disputes with an emphasis on proportionality and fairness. The Court’s focus on procedural safeguards—such as transparency and access to remedies—reinforces the rule of law and protects individuals from governmental inaction. These decisions affirm that protecting the environment is integral to human dignity and require States to take proactive measures to prevent serious environmental harm. Bibliography Legal Acts: Bundesministerium der Justiz. (2024). German Civil Code (Bürgerliches Gesetzbuch, BGB). Available at: <https://www.gesetze-im-internet.de/englisch_bgb/>; (In English) Civil Code of Georgia. (1997). Civil Code of Georgia. Parliament of Georgia. Available at: <https://matsne.gov.ge/en/document/view/31702?publication=110>; (In English) Constitution of Georgia. (1995). Constitution of Georgia. Parliament of the Republic of Georgia. Available at: <https://matsne.gov.ge/en/document/view/30346?publication=36>; (In English) Council of Europe. (1950). Convention for the Protection of Human Rights and Fundamental Freedoms (as amended); (In English) Council of Europe. (1952). Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (Protocol No. 1, as amended). (In English) Explanatory documents: Council of Europe/European Court of Human Rights. (2023, February 28). Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights (Updated). Available at: <https://rm.coe.int/guide-article-1-p1-gts-english-update-28-02-2023-/1680ae370a>; (In English) Council of Europe/European Court of Human Rights. (2024, August 31). Guide to the case-law of the European Court of Human Rights: Environment. Available at: <https://ks.echr.coe.int/documents/d/echr-ks/guide_environment_eng>; (In English) Council of Europe/European Court of Human Rights. (2025, February 28). Guide on Article 8 of the European Convention on Human Rights: Right to respect for private and family life, home and correspondence. Available at: <https://ks.echr.coe.int/documents/d/echr-ks/guide_art_8_eng >. (In English) Case law: Beyeler v. Italy, App. No. 33202/96, European Court of Human Rights. (2000, January 5). Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-58832%22]}>; (In English) Dubetska and Others v. Ukraine, App. 30499/03, European Court of Human Rights. (2011, February 10). Judgement of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-103273%22]}>; (In English) Fadeyeva v. Russia, App. No. 55723/00, European Court of Human Rights. (2005, June 9). Judgement of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-69315%22]}>; (In English) Flamenbaum and Others v. France, App. No. 3675/04 & 23264/04, European Court of Human Rights. (2012, December 13). Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-115143%22]}>; (In English) Giacomelli v. Italy, App. No. 59909/00, European Court of Human Rights. (2006, November 2). Judgement of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-77785%22]}>; (In English) Hatton and Others v. United Kingdom, App. No. 36022/97, European Court of Human Rights. (2001, October 2). Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-59686%22]}>; (In English) Hatton and Others v. United Kingdom [GC], App. No. 36022/97, European Court of Human Rights. (2003, July 8). Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-61188%22]}>; (In English) López Ostra v. Spain, App. No. 16798/90. European Court of Human Rights. (1994, December 9). Judgement of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57905%22]}>; (In English) Marckx v. Belgium, App. No. 6833/74, European Court of Human Rights. (1979, June 13). Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57534%22]}>; (In English) Moreno Gómez v. Spain, App. No. 4143/02, European Court of Human Rights. (2004, November 16). Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-67478%22]}>; (In English) Murdoch v. Glacier Metal Co. Ltd [1998] EWCA Civ 33 (1998, January 19). Available at: <https://www.bailii.org/ew/cases/EWCA/Civ/1998/33.html>; (In English) Öneryıldız v. Turkey [GC], App. No. 48939/99,European Court of Human Rights. (2004, November 30). Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-67614%22]}>; (In English) Surugiu v. Romania, App. No. 48995/99, European Court of Human Rights. (2004, April 20). Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-61714%22]}>; (Officially available in French) Udovičić v. Croatia, App. No. 27310/09, European Court of Human Rights. (2014, April 24), Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-142520%22]}>. (In English) Academic literature: Meskhishvili, N. (2018). Bona fide acquisition of property from an unauthorized person (Doctoral dissertation, Caucasus University), Available at: <https://dspace.nplg.gov.ge/bitstream/1234/290150/1/Disertacia.pdf>; (In Georgian) Nordtveit, E. (2023). The changing role of property rights: An introduction. In Law 2023. Edward Elgar Publishing. Available at: <https://doi.org/10.4337/9781839100659.00006>; (In English) Paradissis, J.-J. (2005). Noise nuisance and the right to respect for private and family life: The Moreno Gómez case. Journal of Planning & Environment Law, 2005 (May); (In English) Phirtskhalashvili, A. (2022). The legal dimension of the social function of property. Journal of Constitutional Law, (2); (In English) Pushkar, P. (2012). Protection of property under the European Convention on Human Rights and the Georgian Constitution: Analysis of the judicial practice of balancing proportionality of interference with the individual property rights. Georgian Constitutional Law Review, (5); (In English) Smith, R. K. M. (2002). Hatton v. United Kingdom. App. No. 36022/97. The American Journal of International Law, 96(3). Available at: <https://doi.org/10.2307/3062172>; (In English) Ribot, J. (2005). Spain. In H. Koziol & B. C. Steininger (Eds.), European Tort Law 2004. Springer; (In English) Smith, J. C. (2012). Some preliminary thoughts on the law of neighbors. Georgia Journal of International and Comparative Law, 39(3); UGA Legal Studies Research Paper No. 12-05. Available at: <https://ssrn.com/abstract=2054732>; (In English) Totladze, L. (2018). Commentary on the Civil Code, Book II (Chanturia, L., ed.), Tbilisi, Georgia; (In Georgian) Zahnow, R., Cheshire, L. (2023). Comunity neighboring norms and the prevalence and management of private neighbor problems. City & Community, 22(2); Available at: <https://doi.org/10.1177/15356841221132497>; (In English) Zarandia, T. (2018). Law of Neighbouring Tenements and the Essence of Private-Law Obligation of Tolerance in Georgian Law. Journal of Law, (2). Available at: <https://jlaw.tsu.ge/index.php/JLaw/article/view/2576>; (In Georgian) Zarandia, T. (2019). Property law (2nd). Meridiani. (In Georgian) Footnotes [1] Nordtveit, E. (2023). The changing role of property rights: An introduction. In Law 2023, Edward Elgar Publishing. pp. 2-3. Available at: <https://doi.org/10.4337/9781839100659.00006>; Totladze, L. (2018). Commentary on the Civil Code, Book II (Chanturia, L., ed.), Article 170, pp. 73-74. Tbilisi, Georgia. [2] Pushkar, P. (2012). Protection of property under the European Convention on Human Rights and the Georgian Constitution: Analysis of the judicial practice of balancing proportionality of interference with the individual property rights. Georgian Constitutional Law Review, (5), p. 143. [3] The emphasis on the absoluteness of property rights reflects the perspective of legal systems based on Roman law. In contrast, the common law tradition, exemplified by English law, adopts a different conceptual framework. Rather than recognizing property as an absolute right, English law views property as a relative right superior to, yet distinct from, mere possession. See. Meskhishvili, N. (2018). Bona fide acquisition of property from an unauthorized person (Doctoral dissertation, Caucasus University), pp. 36-37. Available at: <https://dspace.nplg.gov.ge/bitstream/1234/290150/1/Disertacia.pdf >. [4] Zarandia, T. (2019). Property Law (2nd ed.). Meridiani. p. 50. [5] Smith, J. C. (2012). Some preliminary thoughts on the law of neighbors. Georgia Journal of International and Comparative Law, 39(3), p. 758. UGA Legal Studies Research Paper No. 12-05. Available at: <https://ssrn.com/abstract=2054732>; Zarandia, T. (2019). Property Law (2nd ed.). Meridiani. p. 42. [6] Meskhishvili, N. (2018). Bona fide acquisition of property from an unauthorized person (Doctoral dissertation, Caucasus University), pp. 45-46. Available at: <https://dspace.nplg.gov.ge/bitstream/1234/290150/1/Disertacia.pdf >. [7] Eide, A., Krause, C., Rosas, A. (1995). Economic, social and cultural rights. Kluwer Law International & Raoul Wallenberg Institute of Human Rights and Humanitarian Law. In Meskhishvili, N. (2018). Bona fide acquisition of property from an unauthorized person (Doctoral dissertation, Caucasus University), pp. 45-46. Available at: <https://dspace.nplg.gov.ge/bitstream/1234/290150/1/Disertacia.pdf >. [8] Phirtskhalashvili, A. (2022). The legal dimension of the social function of property. Journal of Constitutional Law, (2), p. 24. [9] Zarandia, T. (2018). Law of Neighbouring Tenements and the Essence of Private-Law Obligation of Tolerance in Georgian Law. Journal of Law, (2), p. 7. Available at: <https://jlaw.tsu.ge/index.php/JLaw/article/view/2576>. [10] Comp. Bundesministerium der Justiz. (2024). German Civil Code (Bürgerliches Gesetzbuch, BGB). §. 912. Available at: <https://www.gesetze-im-internet.de/englisch_bgb/>. [11] Zahnow, R., Cheshire, L. (2023). Community neighboring norms and the prevalence and management of private neighbor problems. City & Community, 22(2), pp. 126–144. Available at: <https://doi.org/10.1177/15356841221132497>. [12] López Ostra v. Spain, App. No. 16798/90. European Court of Human Rights. (1994, December 9). Judgement of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57905%22]}>. [13] Zarandia, T. (2018). Law of Neighbouring Tenements and the Essence of Private-Law Obligation of Tolerance in Georgian Law. Journal of Law, (2), pp. 7-8. Available at: <https://jlaw.tsu.ge/index.php/JLaw/article/view/2576>. [14] Council of Europe. (1952). Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms (Protocol No. 1, as amended). [15] Council of Europe. (1950). Convention for the Protection of Human Rights and Fundamental Freedoms (as amended). [16] Marckx v. Belgium, App. No. 6833/74, European Court of Human Rights. (1979, June 13). Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57534%22]}>. [17] Council of Europe/European Court of Human Rights. (2023, February 28). Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights (Updated). p. 7. Available at: <https://rm.coe.int/guide-article-1-p1-gts-english-update-28-02-2023-/1680ae370a>. [18] Ibid., p. 8. [19] Beyeler v. Italy, App. No. 33202/96, European Court of Human Rights. (2000, January 5). Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-58832%22]}>. [20] Council of Europe/European Court of Human Rights. (2023, February 28). Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights (Updated). p. 20. Available at: <https://rm.coe.int/guide-article-1-p1-gts-english-update-28-02-2023-/1680ae370a>. [21] Ibid., p. 25. [22] Flamenbaum and Others v. France, App. No. 3675/04 & 23264/04, European Court of Human Rights. (2012, December 13). Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-115143%22]}>. [23] Udovičić v. Croatia, App. No. 27310/09, European Court of Human Rights. (2014, April 24), Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-142520%22]}>. [24] Surugiu v. Romania, App. No. 48995/99, European Court of Human Rights. (2004, April 20). Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-61714%22]}>. [25] Council of Europe/European Court of Human Rights. (2023, February 28). Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights (Updated). p. 53. Available at: <https://rm.coe.int/guide-article-1-p1-gts-english-update-28-02-2023-/1680ae370a>. [26] Öneryıldız v. Turkey [GC], App. No. 48939/99, European Court of Human Rights. (2004, November 30). Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-67614%22]}>. [27] Council of Europe/European Court of Human Rights. (2023, February 28). Guide on Article 1 of Protocol No. 1 to the European Convention on Human Rights (Updated). p. 53. <https://rm.coe.int/guide-article-1-p1-gts-english-update-28-02-2023-/1680ae370a>. [28] Council of Europe/European Court of Human Rights. (2025, February 28). Guide on Article 8 of the European Convention on Human Rights: Right to respect for private and family life, home and correspondence. p. 123. <https://ks.echr.coe.int/documents/d/echr-ks/guide_art_8_eng >. [29] Council of Europe/European Court of Human Rights. (2024, August 31). Guide to the case-law of the European Court of Human Rights: Environment. p. 32. <https://ks.echr.coe.int/documents/d/echr-ks/guide_environment_eng>. [30] Moreno Gómez v. Spain, App. No. 4143/02, European Court of Human Rights. (2004, November 16). Judgment of the Court. <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-67478%22]}>. [31] See. Ribot, J. (2005). Spain. In H. Koziol & B. C. Steininger (Eds.), European Tort Law 2004. Springer, p. 542. [32] See Paradissis, J.-J. (2005). Noise nuisance and the right to respect for private and family life: The Moreno Gómez case. Journal of Planning & Environment Law, 2005(May), pp. 584–594. For an insightful analysis of the significance of this case in the development of environmental rights under Article 8 of the ECHR. [33] Udovičić v. Croatia, App. No. 27310/09. European Court of Human Rights. (2014, July 24). Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22fulltext%22:[%22UDOVI%C4%8CI%C4%86%20v.%20CROATIA%22],%22documentcollectionid2%22:[%22GRANDCHAMBER%22,%22CHAMBER%22],%22itemid%22:[%22001-142520%22]}>. [34] Hatton and Others v. United Kingdom, App. No. 36022/97, European Court of Human Rights. (2001, October 2). Judgment of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-59686%22]}>. [35] Hatton and Others v. United Kingdom [GC], App. No. 36022/97, European Court of Human Rights. (2003, July 8). Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-61188%22]}>. [36] Council of Europe/European Court of Human Rights. (2024, August 31). Guide to the case-law of the European Court of Human Rights: Environment. p. 48. Available at: <https://ks.echr.coe.int/documents/d/echr-ks/guide_environment_eng>. [37] Smith, R. K. M. (2002). Hatton v. United Kingdom. App. No. 36022/97. The American Journal of International Law, 96(3), pp. 692–699. Available at: <https://doi.org/10.2307/3062172>. [38] See Murdoch v Glacier Metal Co Ltd [1998] Env. L.R. 732, where the Court of Appeal addressed a claim of noise nuisance brought by Mr. and Mrs. Murdoch, who alleged sleep disruption caused by a nearby factory. Although the noise levels slightly exceeded WHO guidelines, the court found no actionable nuisance, emphasizing the character of the neighborhood, the presence of a nearby bypass, and the lack of complaints from other residents. The case illustrates that exceeding noise thresholds alone does not establish liability; contextual factors and the perspective of an average person are decisive. [39] Flamenbaum and Others v. France, App. No. 3675/04 and 23264/04, European Court of Human Rights. (2012, December 13). Judgment of the Court. Available in French. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-115143%22]}>. [40] Council of Europe/European Court of Human Rights. (2024, August 31). Guide to the case-law of the European Court of Human Rights: Environment. p. 49. Available at: <https://ks.echr.coe.int/documents/d/echr-ks/guide_environment_eng>. [41] Ibid., p. 50. [42] Council of Europe/European Court of Human Rights. (2024, August 31). Guide to the case-law of the European Court of Human Rights: Environment. p. 31. Available at: <https://ks.echr.coe.int/documents/d/echr-ks/guide_environment_eng>. [43] Council of Europe/European Court of Human Rights. (2025, February 28). Guide on Article 8 of the European Convention on Human Rights: Right to respect for private and family life, home and correspondence. p. 53. Available at: <https://ks.echr.coe.int/documents/d/echr-ks/guide_art_8_eng >. [44] López Ostra v. Spain, App. No. 16798/90. European Court of Human Rights. (1994, December 9). Judgement of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-57905%22]}>. [45] Fadeyeva v. Russia, App. No. 55723/00, European Court of Human Rights. (2005, June 9). Judgement of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-69315%22]}>. [46] Giacomelli v. Italy, App. No. 59909/00, European Court of Human Rights. (2006, November 2). Judgement of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-77785%22]}>. [47] Dubetska and Others v. Ukraine, App. No. 30499/03, European Court of Human Rights. (2011, February 10). Judgement of the Court. Available at: <https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-103273%22]}>
The Right to the Secret of Correspondence and Its Legal Protection
Respecting the private life of man is one of the most prominent basic rights guaranteed by positive laws and divine laws, as it is a pillar of human dignity and individual freedom. This right includes preserving human secrets and not dispensing them without his/her explicit consent, or outside the framework of a legitimate and justified judicial order. The principle of correspondence is considered one of the most important applications of this right, as it includes all correspondence and communications between individuals, whether written, electronic, or even oral, as long as it relates to their privacy and they do not want to inform others. Private secrets are an integral part of private life, and they include all information or an incident related to a person and affects his/her interests, such as health data, family relationships, intellectual and religious inclinations, financial situation, and others. The law was approved to protect these secrets, stressing the necessity of preserving them and not being infringed, as Islamic law affirmed this principle through the prohibition of espionage and followed the nakedness of people, in respect of their humanity and the maintenance of their dignity. Accordingly, any violation of these secrets is a serious prejudice to the basic rights of man and requires legal accountability, as it is inconsistent with moral principles. Keywords: Public freedoms, correspondence confidentiality, privacy, legal protection, constitutional amendment 2020. Introduction There is no doubt that personal freedoms come to the forefront of freedoms as necessary for the possibility of enjoying other public freedoms, as they are a condition for the existence of other public freedoms. Some have expressed personal freedoms in the term “individual freedoms in the full sense of the word”, Les Libertés Individuelles Premièrement Dites, because personal freedoms represent the center of the circle for all other freedoms. In the context of personal freedoms, the right to confidentiality of correspondence and that this right is an extension of freedom of thought, because he who fears will violate his messages that do not dare to express this freely. In addition to that, this right is a manifestation of the sanctity of private life, and the importance of this right was guaranteed by most constitutions, guaranteed by treaties, and regulated by laws. So the question arises, what is the meaning of the right to the confidentiality of correspondence? What is the reality of its protection in both international and national laws? So we decided to divide this research paper into two topics: Section I: The concept of the right to the confidentiality of private correspondence; Section II: Legal protection for the right of correspondence (internationally and nationally). 1. The Concept of the Right to Confidentiality of Private Correspondence The confidentiality of correspondence[1] falls within the framework surrounding the individual, as it is not permissible for others to storm it without his will, and thus the correspondence and what it contains related to the private life of the individual, and no one can see it. Therefore, this topic will be discussed: the concept of the confidentiality of correspondence and the exceptions that respond to the right to prejudice its prohibition and secrecy.[2] At first, the term correspondence indicates a broad meaning that includes issues that do not fall within the scope of private life, as correspondence may include things that are not from private life. Definition of the jurists of law. There are some difficulties in determining the meaning of the secret legally, so some know that the secret is all that harms its disclosure with reputation or dignity. The right of correspondence in general means that it is not permissible to reveal the contents of correspondence between individuals, because of the attack on the right of ownership of what this correspondence includes and disrupting this right, and violating freedom of thought as well.[3] Professor Farouk Al-Kilani defines personal correspondence as “they are human conversations with others that translate his opinions, and it may be directly between individuals without using any modern means of communication, such as wireless and wireless communications, or by using one of these means, so they are indirect”. The correspondence is intended for all written messages, but it was sent by the mail road, or by a special messenger, as it means telegrams and faxes. It is equal in this that the message is within a closed or open circumstance or that it is an open card, as long as it is clear that the sender is not to be informed of others without discrimination. It should be noted that correspondence applies with confidentiality in light of the latest means of e-mail, which is more used from the Internet, as the email is often used to transfer and store files and cards, and what is required with it is not permissible to monitor correspondence, nor to disclose information except through the elimination or administrative authorities for legitimate reasons, because the email is part of the concept of correspondence and private life.[4] Given the importance of this freedom or the role that it plays in a person’s life as a human being, close to man, and that concerns him alone. The laws were unanimous in respect of this freedom, and the harsh penalties for those who violate their sanctity have been established. And guaranteed most of the constitutions, including the Algerian constitution in Article 39: It is not permissible to violate the sanctity of the citizen’s private life, and the sanctity of his honor, and the law protects them from the “confidentiality of correspondence and communications related to all its forms”.[5] The statement of this freedom in the Algerian constitution came from 1963 to the amendment of the constitution in 2008, as it came in the 1963 constitution in Article 14 of the phrase (ensuring the secrecy of correspondence to all citizens). However, the phrases that came expressing this freedom changed, so (the confidentiality of correspondence for all its forms is guaranteed) in the constitution of 1976,1989,1996, the amendment of 2008 and this phrase is closer to the rightness as it has expanded from these freedoms to include all kinds of correspondence as postal correspondence and all telegrams and telephone communications are a material translation of its ideas and its secrets can It is permissible for a non -source and whoever is directed to see it, confiscate it, conceal it, or hear it in a way of eavesdropping by any means. As for the elements of the right of the confidentiality of correspondence, they are:[6] The right to confidentiality of correspondence includes all written communications, whether through messages or telegrams; The right to confidentiality of correspondence includes wireless and wireless communications, such as telephone and electronic conversations, as technology has reached today; The right to confidentiality of correspondence is based on the idea of ​​the right of ownership, because of the attack on it. It is an attack on private life and personal freedom; Not to disclose the content of the correspondence, seizure, conceal, or destruction of the correspondence, or inform others.[7] 2. The Right to Confidentiality of Correspondence in Islamic Law We find in the idiomatic meaning of the secret in Islamic law: “The secret is all that you conceal and hide yourself and do not see anyone to do harm or to bring an interest or his concern from him without him”. In the fatwas of the Islamic Fiqh Academy, a statement of the meaning of the secret stated that “what a person leads to the last to be concealed by him before or from a distance, and includes what is stimulated by evidence indicating the request of concealment if the custom is to keep his concealment as it includes the peculiarities and disadvantages of the human being that people hate to see”. We find this freedom in the Holy Qur’an, as in the noble Prophet’s Sunnah, and one of the noble verses indicating this is the words of God Almighty: “O you who believe, avoid many of the thoughts, because some think that they do not. Do you like one of you to eat the flesh of his brother, dead, and you will be given it. And from the guidance of the prophecy, we find the words of the Messenger, may God’s prayers and peace be upon him, on the authority of Abu Hurairah, may God be pleased with him, that the Messenger of God, peace and blessings be upon him, said: “Do not think that the thought is the lie of the hadith and do not feel or spy”. And also his saying: Exposing in his home. The general principle is the confidentiality and sanctity of private correspondence, but there are exceptions to this general asset, which is: the relationship of paternity, the relationship of marital, and the judicial investigation. 2.1. The Relationship of Fatherhood and Marital Relationships 2.2. The father’s relationship with his children The father is the natural guardian of his minor children, and he is the one who bears civil responsibility for the harmful actions that may occur from these minors, in addition to being criminally responsible for neglect in their care. This responsibility should be matched by controls from the father on his children, as he is entitled to monitor the messages he sends and which his children receive to ensure the interests of the children and the interests of the family. 2.3. Marital relationship Marital secrets are reserved and escalated even after their separation. It is not permissible for either of them to divulge the correspondence that took place between them during the marriage of the other without the satisfaction of the other. This explanation is matched by Article 153, Paragraph 02 of the Civil and Administrative Procedures Law. Concerning the personal messages that one of the spouses had been edited or received within the framework of the crime of adultery, and the evidence for breaching the duty of sincerity may raise the question about the possibility of bringing them to the judiciary when it includes the secrets of private life? To address the position of the Algerian legislator, we need to refer to the provisions of the Penal Code, and we find it on the one hand that it criminalizes the crime of adultery to consider it from the public order, according to Article 339, Paragraph 1. On the other hand, it is allowed to be proven by the victim’s husband, and among the permissible methods is mentioned Article 341 of the Penal Code, the letters or documents issued by the adulterer (the husband), these messages are presented by one of the health couple whenever he obtained it and was directly related to the crime of adultery.[8] 2.4. The judicial investigation Some social necessities and public interests require prejudice to this freedom, as the Public Prosecution may look forward to speeches, messages, papers and seized registrations, provided that all that is possible is done, in the presence of the accused and the holder of it or sent to him and codify their observations on them, and according to what appears from the examination to order the inclusion of the papers to the case file or return it to the one who was holding it or was sent to it. The messages and the disclosure of their secrets are set an investigation procedure that may not be resorted to unless the investigation interest requires that this procedure be broken, after the permission of the competent judge in a limited period and based on the justifications and legal reasons. Article 84 of the Criminal Procedure Law has given this authority to the investigation authority only. It must be adhered to the following provisions of guarantee and guarantee of the correspondence confidentiality:[9] That the confidentiality of correspondence is a benefit to show the truth if the crime is punishable by imprisonment for more than three months, the matter must be issued by the criminal judge based on serious and embarrassing challenges; It is a reason; This is in the narrowest limits and not exceeding 30 days. 3. Legal Protection for the Right of Correspondence (Internationally and Nationally) Legal protection refers to the measures and mechanisms within the law created to protect and preserve rights, interests, and privacy. The application of laws, legislations, and legal frameworks aimed at ensuring the protection of individuals, their property, their data, and other legal rights. Legal protection acts as a shield against violations of rights, ill-treatment, and rights violations The Universal Declaration of Human Rights is the first public document, integrated and specialized in human rights. It is undoubtedly a sign that it is the aspect of international human rights law as a branch of international law. After its issuance, the United Nations began working to take more positive steps, so that its results are binding, and the best way towards this goal was to formulate human rights based on my pledges that are formulated in an agreement that takes the form of an international treaty. 3.1. The Universal Declaration of Human Rights The individual’s relationship is no longer just a citizen’s relationship with a state, after the Second World War. The international law, to this war, was limited to legalizing the relationship between states and defining their competencies and sovereignty. However, this concept has changed radically after mankind knew the scourge of wars, as global public opinion began to tend towards international protection for the individual in the face of the arbitrariness of dictatorial governments, especially in the field of civil and political rights.[10] This phenomenon was of a global and regional nature at the same time. The United Nations launched an important project for the preparation of the Universal Declaration of Human Rights, and led the effort to reach the adoption of the Universal Declaration of Human Rights on December 10, 1948. Concerning the freedom of correspondence, it was stated in Article XII (12) of the announcement that no one is exposed to arbitrary intervention in his private life, his family, his residence, or his correspondence. The most important findings of international efforts during the twenty years after the issuance of the Universal Declaration of Human Rights, the adoption of the two international covenants of 1966, the first for civil and political rights, the second international covenant related to social, economic and cultural rights and a protocol for receiving and studying the notification of individuals who claim to be victims of violation of any of the rights stipulated in the consideration of these notifications. The new in the two international era is that they have taken the form of an international treaty binding for the parties, and on the other hand, the two covenants include an international system, to enhance and ensure respect for the rights contained in it. The implementation of the two international covenants began in 1976. By virtue of the global and binding nature of the two covenants, they are considered an important step on the path of protecting human rights at the international level.[11] Article 17 of the International Covenant on Civil and Political Rights stated that “it is not permissible to interfere in a control or illegal in the privacy of anyone, his family, his residence, or his correspondence”. But everyone has the right to protect the law against such intervention or exposure, and it is similar to Article II of the Universal Declaration of Human Rights. 3.2. The International Covenant on Civil and Political Rights The characteristic of correspondence is one of the manifestations of the individual’s privacy and is explicitly protected in Article 17. This protection includes not only during the transfer of written correspondence by mail or by a messenger, but also in the period before sending it and after receiving it. It also includes direct oral communication, and today it must include contact with any mechanical or electronic means. Protection is carried out so as not to disclose its contents except to the recipient person. It is also preserved from aspiration or any other intervention, kicking a message, changing its destination, or delaying it, or by confusion and the tangle of phone lines or electronic communications. The extent of protection must be expanded, so that the protection of personal communication between two individuals must be expanded to documents that are not usually called correspondence. Examples of this. The idea in these articles may be threatened if the individual responsible for it reveals, especially if these moral, religious, or political values ​​prevailing in society contradict. In any case, it does not matter to him. Under Article (18) that the International Covenant protects the individual’s right even if the materials are not sent by any means of communication, in the Stanley case against Georgia, the US Supreme Court of Justice ruled the innocence when the state agents of the state found, and agents of the state of Georgia during a legal inspection of one of them, and they found three films that were considered immoral and violated the Juria State Law, because it saw that the United States constitution protects the individual’s right And ideas, and to read and watch whatever he wants within the retreat of his house, and that he has the right to liberate from the state’s research in the contents of his office and whatever the organizations related to the absence, they do not reach the retreat of the individual’s house. And if the first amendment to American law means something, it means that the state does not have a matter of telling one who is sitting alone in his home, but rather tells him what books he can read and the films he can see.[12] Article (17) of the International Covenant on Civil and Political Rights, and if it is read with a capacity of a horizon, it also protects the right to the confidentiality of correspondence, and it prohibits reserve and illegal works that interfere with means such as delivery, preserving ideas and information and keeping them secret. There are also cases in which intervention is permissible to limit the freedom of correspondence, whatever its characteristic, when necessary, in some cases, such as national security and defending public order, or crimes. 3.3. Protection is the right to confidential correspondence in Algeria The Algerian constitution was concerned with public rights and freedoms and was subject to the right of correspondence and guaranteed and guaranteed the laws by providing penalties for its violation. 3.3.1. Constitutional protection for the right of correspondence The thing observed on the provisions of the constitution in the field of the legal system of public freedoms only guarantees public rights and freedoms, in public formulas, without accurately addressing the text on accurate issues that are considered an effective guarantee to protect and ensure public freedoms. And since correspondence is forbidden as a warehouse of the privacy of individuals, so most of the constitutions guaranteed this right, including the Algerian constitution 2020 in Article 47, paragraph 02, where it included “every person has the right to confidentiality of his correspondence and his communication in any form” but it came in the public form, unlike some of the constitutions that dealt with this freedom with accuracy and clarity. And what is noticed on Article 47/2 that the Algerian constitutional legislator remedies the error that was present in the 2016 constitution in Article 39 Paragraph 02 of the 2016 constitutional amendment that came despite its explicit guarantee of the confidentiality of correspondence, but it lacks accuracy, especially in the phrase “guaranteed” where it results in the unconstitutionality of listening seats (listening devices) that can be placed in private phone centers, as well as appears from the formulation of the article 39/2 The unconstitutionality of the fourth chapter related to the interception of correspondence, the registration of assets and the taking of photos in the investigation of the Code of Criminal Procedure (Article 65 bis 5), because the guaranteed phrase suggests that there is no objection to correspondence nor to register the voices in all cases. It was better to mention exceptions in the text of Article 39/2 of the Constitution or for registration after the end of the paragraph, just as Article 40 included the sanctity of the house, so there is no inspection except according to the law .... Thus, the article can be formulated in the context of what the Egyptian project went to, for example, where it stipulated in Article 57/2 of the 2014 constitution that: ... and for postal and telegrams, television conversations and other means of communication, and it is not permissible to confiscate it See it or its control except by a reasonable judicial order, and for a limited period, in accordance with the provisions of the law. Thus, the conflict between the constitutional principle and other laws reduces. 3.3.2. Legislative protection for the confidentiality of correspondence The Algerian legislator has provided protection for the right of correspondence in both the (criminal) penal laws and civil law. 3.3.2.1. In criminal law In addition to the constitutional guarantees that protect the confidentiality of correspondence,[13] the Algerian project surrounded this right with texts criminalizing every attack, including Article 303 of the Penal Code, which stipulates that “everyone who breaks or damages messages or correspondence addressed to others, with bad faith, and in other cases stipulated Article 137 shall be punished with imprisonment from one month (1) to one year with a fine of 25,000 dinars to 100,000 DZD or in one of these For two penalties and the punishment is more severe if the attack is issued by the state employees, and that is stipulated in Article 137 of the Penal Code. A user or delegate in the interest of lightning is embezzled, damaging a telegram or broadcasting its content, and the perpetrator is punished, as well as deprived of all public jobs or services for five to ten years. 3.3.2.2. In civil law The Algerian civil law does not include any explicit text that guarantees the protection of the quality of private life, but rather a general text that protects the fundamental rights of human personality. As the right of the confidentiality of correspondence can be included in the private life and the latter within these rights, Article 47 stipulates that: “For everyone who has been legally assaulted by one of the rights inherent to his personality to request the suspension of this attack and compensation for the harm that may be harmed”.[14] Conclusion The right of the secret correspondence is considered one of the most important personal rights stipulated in human rights, whether in terms of the Universal Declaration of Human Rights or constitutional texts and national legislation in countries- including Algeria- and in the interest of the Algerian legislator on the importance of the right of the secret of correspondence he mentioned at the heart of the constitution, which means the opportunity for every person to correspond to others by sending messages and postal parcels in the land, the sea, or the air, to receive messages and parcels and address others with any basket The law is allowed. Whether it is dealt with by well-known traditional or modern electronic communication means. It is worth noting that, with this technological and scientific development and the increase in technical means that can be used to threaten respect for the confidentiality of correspondence and its prohibition, it has become necessary to increase the legal means to protect this freedom. Bibliography Al-Ahwano, H. E.-D. (1978). The right to respect private life, the right to privacy - a comparative study. The Arab Renaissance House; Al-Shahawi, M. (2005). Criminal Protection for the Variation of Private Life. Arab Renaissance House, Cairo; Allah, A. -T. (2005). Introduction to Freedoms and Human Rights - Constitutional Expression of Freedoms and Laws. Publishing and Distribution, Algeria; Arous, M. (1999). Legal System for Public Freedoms in Algeria. University of Algeria, Algeria; Asilan, O. M. (2004). Criminal protection for the profession in Islamic law and positive laws and its applications in some Arab countries. Master Thesis. Naif Arab University for Security Sciences, Riyadh; Aziz, N. A. (2010). Criminal Protection for Private Life - A Comparative Study. PhD thesis, Faculty of Law, Batna University; A. -K. (1985). Lectures in the Code of Criminal Procedure (Jordan and Al -Muqarin). Amman; Karima, K. (2006). Protecting the right to privacy from infringement under the Information Society. Journal of Legal and Administrative Sciences; Kashkash, K. (1992). Secret Correspondence Protection. Journal of Sharia and Law Studies; Med, S. (2013). The right to privacy between guarantees and controls in Algerian legislation and Islamic jurisprudence. College of Islamic Sciences, University of Oran, Algeria; Morange, S. M. (1995). Les Libertés Publics. France: PU.F; Safia, B. (2012). Legal Protection for Private Life - A Comparative Study. PhD thesis, Mawloud University; Taisayat, H. S. (2000). Human Rights and Basic Freedoms. 3rd edition, Amman; Yasser Al -Huwaish, M. N. (2010). Public Freedoms and Human Rights. Syrian Virtual University, Syria. Footnotes [1] Asilan, O. M. (2004). Criminal protection for the profession in Islamic law and positive laws and its applications in some Arab countries. Master Thesis. Naif Arab University for Security Sciences, Riyadh, p. 39. [2] Safia, B. (2012). Legal Protection for Private Life - A Comparative Study. PhD thesis, Mawloud University, p. 225. [3] Morange, S. M. (1995). Les Libertés Publics. France: PU.F., p. 61. [4] Farouk. A. -K. (1985). Lectures in the Code of Criminal Procedure (Jordan and Al -Muqarin). Amman, p. 100. [5] Al -Shahawi, M. (2005). Criminal Protection for the Variation of Private Life. Arab Renaissance House, Cairo, p. 184. [6] Karima, K. (2006). Protecting the right to privacy from infringement under the Information Society. Journal of Legal and Administrative Sciences, p. 146. [7] Taisayat, H. S. (2000). Human Rights and Basic Freedoms. 3rd edition, Amman, p. 132. [8] Al-Ahwano, H. E.-D. (1978). The right to respect private life, the right to privacy - a comparative study. The Arab Renaissance House, p. 67. [9] Arous, M. (1999). Legal System for Public Freedoms in Algeria. University of Algeria, Algeria, p. 46. [10] Allah, A. -T. (2005). Introduction to Freedoms and Human Rights - Constitutional Expression of Freedoms and Laws. Publishing and Distribution, Algeria, p. 53. [11] Yasser Al -Huwaish, M. N. (2010). Public Freedoms and Human Rights. Syrian Virtual University, Syria, p. 139. [12] Kashkash, K. (1992). Secret Correspondence Protection. Journal of Sharia and Law Studies, p. 144. [13] Med, S. (2013). The right to privacy between guarantees and controls in Algerian legislation and Islamic jurisprudence. College of Islamic Sciences, University of Oran, Algeria, p. 88. [14] Aziz, N. A. (2010). Criminal Protection for Private Life - A Comparative Study. PhD thesis, Faculty of Law, Batna University, p. 48.
Towards a Special Compensation System Aligned with the Unique Nature of Civil Liability for Medical Applications of Genetic Engineering
Medical civil liability has attracted significant attention from researchers due to the issues it raises, especially those related to the use of modern practical, medical, and biological means in treatment and diagnosis. This study aims to analyze the effectiveness of traditional civil liability rules in compensating for damages resulting from the use of genetic engineering in the medical field, focusing on Algerian and comparative legal systems. The study finds that the current judicial mechanism of fault-providing compensation is not sufficient now to satisfy the demands of modern medical risks, and therefore, there should be new models of compensation reflecting the peculiar nature of medical liability and reinforcing and supplementing judicial protection of patients harmed by modern medical procedures. In addition, this research takes into account future ethical challenges in genetic use and addresses alternative models of compensation being proposed in other jurisdictions. The study points towards the need for urgent legislative reform that balances. Keywords: Compensation system, medical liability, civil liability, genetic engineering. Introduction The technology has become essential in medical and therapeutic research, a landmark in modern science, particularly in gene therapy and early disease detection, rather than detection at an advanced level. Yet whereas these technologies are bringing enormous benefits, their increasing use exposes patients to risk from therapeutic or experimental treatments with unanticipated physical health effects in the long term. On the one hand, they appear to be offering cures for difficult-to-treat diseases; on the other, they raise serious legal and ethical concerns. Their use can, in some cases, cause physical or psychological harm to patients. This reality makes it necessary for there to be a strict legal framework to control their use—a framework that honors bodily integrity and protects individuals against harm. In such an event, the intervention of physicians using genetic engineering to diagnose and cure patients becomes more complex. Physicians can, by negligence or failure to properly use such means, cause harm to the patient, thereby incurring liability under law. Thus, this study aims to explore the scope of civil medical liability that has emerged due to genetic engineering being applied in clinical practice. It focuses on the legal nature of liability and compensation processes for resulting harm. This study will examine the regulation needed to oversee the use of genetic technologies in medicine, along with how liability for genetic injury differs from traditional medical liability. Based on the foregoing, this research paper seeks to address the following core question: What are the distinctive characteristics of civil medical liability arising from the use of genetic engineering, particularly concerning its legal nature and the rules governing compensation? To answer this question, the research will take a deductive analytical path, founded upon the interpretation of the relevant legal documents that determine the nature of civil medical liability and the clarification of the technologies of genetic engineering and their fields of application. The research will also analyze the legal precepts that govern the compensation of damage resulting from the use of these technologies. 1. Genetic Engineering between Medical Benefits and Regulatory Constraints Scientists deciphering genetic codes during the technological revolution have enhanced our understanding of organism traits and disease causation. The breakthrough led to the treatment of genetic diseases through gene therapy, and euphoria and alarm swept scientific circles. Although some see enormous potential for humankind, others worry about misuse. 1.1. The medical applications of genetic engineering Scientific advances in medicine, genetics, and biology have led to the discovery of innovative techniques that have opened vast new horizons, particularly in the areas of genetic diagnosis and gene therapy. 1.1.1. The role of genetic engineering in disease diagnosis Pre-marital testing can identify carriers of genetic mutation and assess the risk of passing it on to the child, and enable couples to make informed decisions regarding reproduction, reducing the chance of inherited illness. Similarly, prenatal testing can reveal fetal genetic abnormalities,[1] allowing parents to prepare medically—yet it also raises moral concerns surrounding selective abortion, thus requiring comprehensive ethical counseling. In the context of IVF,[2] preimplantation genetic diagnosis (PGD) permits the selection of embryos free from genetic disorders, significantly improving healthy pregnancy outcomes for high-risk families.[3] Yet, such breakthroughs are accompanied by profoundly ethical issues. Disclosure of genetic information can amount to an invasion of privacy and expose individuals to the risk of discrimination in the work environment or under insurance policies. To prevent this, robust legal protection is required to ensure that individual rights are protected while ensuring that the utility of genetic technologies is balanced against the values and moral principles of society.[4] 1.1.2. The role of genetic engineering in the treatment of diseases Gene therapy, in particular, has transformed the management of inherited disease because it deals with the underlying genetic causes of a disease rather than symptoms. It is achieved through the introduction of new functional genes, the enhancement of current genes, or the removal of harmful sequences. These interventions are today more targeted because of CRISPR technology. Existing approaches, initially applied in rare genetic diseases like cystic fibrosis, are now being adapted to oncology to optimize immune recognition of tumors and optimize responsiveness to treatment. With widespread administration of viral vectors for gene delivery, delivery continues to be a significant concern. In HIV-specific studies, gene editing in reengineered immune cells has been utilized to preclude viral replication. Quantum advances permitted through genomic diagnosis using germline modifications support early diagnosis of mutations based on personalized medicine. Use of genetic technologies brings in conjunction with it ethical and legal issues, mainly consisting of the long-term outcomes and social repercussions of germline modification.[5] 1.2. The legal conditions for the use of genetic engineering in the medical field There are no special legal provisions in Algerian law for genetic screening and treatment of genetic engineering due to the novelty of such technology. Article 7 bis of the Code de la Famille[6] addresses genetic therapy and diagnosis,[7] and it stipulates prenuptial medical screening. The law does not specify, however, what disease is to be screened for, and it leaves physicians to do so. The law does not specify, however, which disease is to be screened, but leaves it to the discretion of physicians. Genetic engineering and stem cell therapy are governed by Article 355 of the Health Law, which prohibits the removal or transplantation of human organs or tissues except for therapeutic or diagnostic purposes. The doctor’s motive must be treatment for a justifiable reason, and if harm results from transferring stem cells, the doctor must not do so to avoid civil and criminal liabilities.[8] To perform cell, tissue, or organ transfers for treatment, Algerian legislation establishes some general principles such as licensure in medicine, respect for scientific practice, and informed consent by the patient. The following requirements must be fulfilled: 1.2.1. It should be considered as the last resort for treatment or diagnosis This condition is emphasized in Article 355 of the Health Law (18-11), which states that human organs cannot be removed, nor tissues or organs transplanted, except for therapeutic or diagnostic purposes. This technique may only be utilized if it is the only available method to treat or preserve the life of the patient or to ensure their physical well-being, without posing any danger to the patient’s life or the donor’s health. It should also be confirmed that the donor (the source of the cell) is not suffering from any infectious disease that can be transmitted along with the stem cells. This is further underlined in Articles 360, 361, and 364 of the Health Law.[9] 1.2.2. Formality requirement Algerian law makes available legal formalities in medical contracts under Health Law 18-11. Donors must provide informed, voluntary consent before the head of the regional court, where it is subjected to a test of legality.[10] A report by an expert board is followed by a second authentication to confirm that consent and legislation have been satisfied. Donors can revoke their consent at any time.[11] For cadaveric donors, Article 362 of the Health Law prohibits organ or cell removal without a certain medical and legal determination of death, as per scientific criteria. In the absence of a written objection, consent must be obtained from relatives or, if absent, the legal heir. Donor anonymity must be maintained by the recipients and their families. Organ removal is prohibited if it interferes with a forensic autopsy, which must take precedence. Recipients must give written consent in the presence of the chief physician and two witnesses. When the recipient is incapable, a member of the recipient’s family may give it. When urgency or exceptional circumstances render contact impossible, the written consent may be waived.[12] 1.2.3. Eligibility Before the operation, patient consent—or that of a guardian or legal representative—must be obtained, as stipulated in the final paragraph of Article 364 of the Health Law and Articles 44 and 52 of the Code of Medical Ethics. Consent is valid only after the treating physician has fully informed the patient or their representatives of potential medical risks. As for organ donation, Algerian law prohibits donations from minors, individuals lacking discernment, those without legal capacity, and adults with health conditions that may compromise either the donor or recipient. The physician must inform all eligible donors of the medical risks involved. Donors may withdraw consent at any time, without formal procedures. A notable feature of Health Law 18-11 is the allowance of blood-forming organ removal from a minor donor, but only for the benefit of a sibling. If no other treatment exists, the procedure may extend exceptionally to a cousin, niece, nephew, or similar relatives (e.g., child of an uncle or aunt), provided that both parents or the legal representative give informed consent.[13] 1.2.4. Free of charge Algerian Health Law Article 358 prohibits financial transactions in the removal and transplantation of human organs, tissues, and cells. The law also ensures that the identity of the dead donor and the recipient’s family shall not be disclosed. The law also prohibits physicians who certified the donor’s death from being part of the transplant team to prevent suspicion of illegal inducement or coercion. Article 367 mandates that professionals who are performing organ removal or transplant not receive any fees for the procedures. The measures ensure the ethical management of the human body and rule out any chance of monetary exchange.[14] 1.2.5. Authorization for the venue of organ or cell transplantation The Algerian legislator also stipulates that organ and tissue transplantation procedures must take place in hospitals authorized by the minister responsible for health to perform such operations. These hospitals are to operate under the supervision and evaluation of the National Organ Transplant Agency, and they must ensure that their medical and technical organization, as well as their hospital coordination, meet the required standards to obtain this authorization.[15]As permitted by the legislator in Article 357 of the Health Law, the establishment of a structure within the healthcare institution is authorized, tasked with the preservation of human tissues and cells. 1.2.6. Sanctions resulting from violations of genetic engineering regulations The legislator established sanctions for prohibited human organ, tissue, and cell removal and transplantation. In accordance with Articles 430 and 431 of the Health Law, violations—including those committed against minors or individuals lacking legal capacity—are penalized in accordance with Articles 303 bis 16 to 303 bis 20 of the Penal Code. Physicians are criminally liable for unlawful removal. Law No. 90-01 illegalized the removal of living or dead subjects without legal compliance, and any removal for compensation, even with consent. Articles 303 bis 16 and 303 bis 17 of the Penal Code impose imprisonment from 3 to 10 years and fines up to 1,000,000 DZD for receiving organs for money, acting as an intermediary, or conducting removals without consent or legal compliance. Additionally, Article 432 of the Health Law penalizes profit-driven promotion of organ, tissue, or cell donation with 6 to 12 months’ imprisonment and fines between 200,000 and 400,000 DZD. These actions are taken so that unethical practices can be evaded, and legality is ensured at every step.[16] 2. The specific nature of Civil Medical Liability in Genetic Engineering Applications Civil liability of doctors remains a major topic among legal scholars and judges, due to evolving medical practices and the settings in which they occur. One factor affecting this liability is scientific innovation, particularly genetic engineering in medicine. Thus, the nature of medical civil liability continues to prompt legal and judicial discussion, especially regarding its legal basis. 2.1. Medical liability for the use of genetic engineering in light of the traditional approach to civil liability Medical civil liability generally falls under contractual or tortious liability. Tortious liability stems from a doctor’s breach of a legal duty, while contractual liability arises from failing to fulfill an agreed obligation. Although fault type usually determines liability, legal opinions and court decisions differ on which kind of fault applies. Some favor tortious fault, while others support contractual fault as the basis for liability. 2.1.1. Medical civil liability based on negligence for the use of genetic engineering applications In 1833, the French Court of Cassation established that medical liability is based on fault, according to Articles 1382 and 1383 of the Civil Code. Since then, French courts and legal scholars have reaffirmed this principle. This approach is based on several justifications: proving physician fault ensures patient protection and fair compensation; the technical nature of medicine requires adherence to professional standards; liability for criminal harm must be fault-based; and the doctor-patient relationship concerns personal rights beyond simple contract law. The Algerian courts followed the same approach, with slight differences at the doctrinal level. Courts will regard medical liability as contractual due to the doctor-patient relationship, but the Algerian Supreme Court ruled on 23/01/2008 that a violation of scientific care standards is a medical fault and it is considered negligence.[17] Likewise, the Tlemcen Court of Appeals, by virtue of judgment no. 06/12/2003, held that doctor negligence warrants liability and attributed liability to the hospital based on employer liability.[18] 2.1.2. Medical civil liability based on contractual fault for the use of genetic engineering applications A century after affirming doctor liability for negligence, French judges and scholars began questioning fault-based liability in clinical contexts, promoting a shift toward contractual fault. They argued that when a treatment contract exists, physicians are obliged to meet scientific and professional standards, and the burden is on the plaintiff to prove a breach. Even where a doctor’s mistake is criminalizable, breach of contract may nonetheless provide a basis of legal liability. This view is extended by some to emergency cases, where hospital forms remain an open invitation, and the patient’s request constitutes the acceptance. Others maintain that, although life and health are not contractual matters and public policy upholds patient autonomy, this does not exclude the contractual nature of physician liability.[19] The French Court of Cassation, in the Mercy case (May 20, 1936), confirmed that a physician-patient contract exists and that failure to fulfill care obligations triggers contractual civil liability.[20] In Algerian jurisprudence, unlike in France or Egypt, courts often focus on the presence or absence of fault, especially in public hospital cases.[21] However, elements of contractual liability appear, such as Article 44 of the Algerian Medical Ethics Code, which emphasizes patient capacity and consent, implying a contractual framework for the physician-patient relationship. 2.2. Medical liability for the use of genetic engineering in light of modern trends in civil liability The integration of machines and modern technology in healthcare has sparked debate over civil, particularly medical, liability. Judges and attorneys have heavily criticized the continued reliance on fault as its basis. Some support preserving medical fault within a modern framework by redefining it as professional or presumed fault. Others call for abandoning fault altogether, especially in the context of genetic engineering. 2.2.1. Amending the concept of fault as the basis for civil medical liability The concept of civil medical liability has been influenced by economic and technological changes in medicine. Traditional liability is in a dilemma to attribute direct harm to physicians, and therefore, it becomes difficult for patients to prove causation. Judges and theorists devised presumed fault as a solution to this dilemma, which allows courts to presume physician fault without total proof, making patient claims of compensation easier.[22] Public hospitals are commonly held responsible in Algerian law, associating suspected errors with poor management. A July 15, 2002, Council of State ruling condemned a hospital for the death of Mr. Moulay due to a lack of supervision in a psychiatric center.[23] Later, some jurists proposed professional fault to reflect the unique nature of medical work. This concept, merging tortious and contractual liability, grounds physician responsibility in ethical violations.[24] Article 13 of the Algerian Medical Ethics Code supports this, as do Article 27 of the Saudi Health Professions Practice Act, Article 2 of the Jordanian draft Medical Liability Law, the 1995 Palestinian Patient’s Rights Charter, Article 18 of the Lebanese Medical Ethics Law, and Article 26 of the UAE Federal Law on Medical Liability—all affirming that professional errors justify liability.[25] 2.2.2 Adopting the concept of damage as the basis for civil medical liability for the applications of genetic engineering Legal and judicial thinking has shifted from individual guilt and moral standards due to moral liability’s failure to keep pace with social change. Based on the core concept of compensating the injured, more direct and objective liability now applies to physicians and medical staff. Judicial focus has moved to the harm-causing entity rather than personal fault. Doctors are held liable as custodians of treatment tools or as decision-makers impacting others. The first move from fault-based to risk theory came in the French Council of State’s “Cames” ruling (June 21, 1895), which based compensation on professional risks. French courts have since focused medical liability on harm.[26] Supporters of traditional liability justify objective liability with two concepts: risk and guarantee. The risk principle holds that anyone creating or benefiting from a risk must bear its consequences. In medical institutions, this means compensating for harm caused by their operations in fairness. The guarantee theory describes the basis of liability: not only fault, but also benefit from an activity requires enduring harm caused. However, these theories may not be in a position to fully protect the injured. Neither Algerian legislation nor judgments accept harm-based liability strictly in medical settings. Civil law acknowledges liability founded on harm, but it’s not accepted in the healthcare industry straightforwardly. As compared to French public health legislation, Algerian public health law lacks such a mechanism of liability, and there is no judgment confirming its practice.[27] 3. The Specificities of the Compensation System in Medical Liability for Genetic Engineering Applications Given the widespread medical errors in facilities and the difficulty of proving them—due to technical procedures, challenges in attributing fault, or professional solidarity—the traditional civil liability principles, which assign compensation based on fault (Article 124 of the Civil Code), have proven insufficient to ensure justice. This is especially true regarding fair compensation for harm caused by medical actions, whether or not fault is involved. Thus, a specialized compensation mechanism is needed, suited to the unique nature of damages, particularly from genetic engineering. 3.1. Compensation under traditional civil liability principles: How effective is it in protecting victims? Traditional civil liability rules primarily seek to assign compensation to the doctor responsible for the harm caused by their fault. Accordingly, a doctor cannot be held liable for compensation without having committed a fault that resulted in harm to another, in line with Article 124 of the Civil Code. Through the analysis of the Code of Medical Ethics, the Health Law 18-11, and other legal provisions that concern the medical field, it can be seen that the Algerian legislator did not address the issue of compensation in an extended and broad way. Instead, the focus has been on penalties and sanctions resulting from the harm caused by doctors to their patients. Given this ambiguity and the general nature of the legal texts related to the medical field, it is necessary to refer back to the general provisions in the Civil Code governing compensation. The determination of compensation is made by the judge, using their discretionary powers within the legal framework established by the legislator. This situation reflects the typical approach to judicial compensation. However, the practical application of these provisions has shown certain shortcomings in ensuring adequate justice for victims of medical malpractice. 3.1.1. The familiar image of compensation assessment is a judicial estimate, but it is often inadequate Traditional civil liability assigns compensation to doctors solely when fault that has resulted in damage is determined, based on Article 124 of the Civil Code. An examination of the Code of Medical Ethics, Health Law 18-11, and relevant provisions demonstrates that the Algerian legislator has addressed sanctions for damages by physicians, not compensation at large. Due to the generality of such texts, judges apply provisions of the Civil Code. Compensation is thus determined by the judge via discretionary power under the law. However, this judicial policy does not always result in full justice for victims. Judicial compensation assessment, though standard, is often inadequate. Whether before civil, administrative, or criminal courts, judges must establish harm and fault to award compensation. As in-kind damages are rare in medical cases, compensation is usually monetary, since all harm can be financially valued. To explain how judges calculate compensation for medical errors, we must outline their role and the circumstances requiring such calculation. 3.1.2. The mechanism of judicial assessment of compensation The Algerian legislator does not leave judges to assess compensation according to personal discretion. Rather, fixed criteria have to be applied, and decisions are to be reviewed by the Supreme Court. Judges are required to look at both the objective elements of the damage and the personal circumstances of the injured party in awarding compensation. 3.1.2.1. Objective assessment of the damage requiring compensation Compensable damage includes two elements: actual loss and lost profits, as stated in Article 182 of the Civil Code. Thus, if a medical error causes harm—such as permanent disability or prolonged immobility—it leads to a loss of income, which is compensable.[28] Judges can also request medical experience to ascertain disability, recovery time, amount of damage, or the type of injury, relying on technical opinions of experts.[29] 3.1.2.2. Subjective assessment of compensatory damage The judge must take into account the specific circumstances surrounding the victim when determining compensation, in accordance with Article 131 of the Civil Code, which states: “The judge shall assess the extent of the compensation for the harm suffered by the victim in accordance with the provisions of Article 182, taking into account the relevant circumstances”. These relevant circumstances refer to factors related to the victim’s personal, health, family, and financial situation.[30] 3.1.2.3. Timing of the judge’s assessment of compensation While most civil law commentators agree that the time of assessing the damage is the moment the harm occurs, the right to compensation is not finalized until a judgment is issued. This judgment does not create the right but merely reveals it, as per the Algerian legislator’s position in Article 131 of the Civil Code. If the judge is unable to determine the final amount of compensation at the time of the judgment, the victim is entitled to request a reassessment within a specified period. Additionally, as with any judicial decision, a ruling on compensation is subject to appeal, and the harm may increase or decrease during the period allowed for appeal until a final decision is reached.[31] 3.1.3. Shortcomings of the compensation system under classic civil liability rules While judicial compensation is a beneficial tool in medical negligence, it has operational limitations, particularly if compared to systems such as the French system. Some of its serious criticisms are: Slow Processes: Litigation in regular courts is slow and takes time, and this is what extends suffering to patients in seeking compensation for medical expenses. Reliance on Conventional Civil Liability: The burden of proof for the doctor’s fault rests with the patients, a burden considering their limited expertise in medicine, resulting in missed opportunities for compensation. Difficulty in Holding Doctors Accountable: Proofs notwithstanding, the claim may fail due to the doctor’s demise, bankruptcy, being uninsured, or the inability to determine the responsible medical professional from among multiple practitioners. These constraints reveal that the existing system does not provide sufficient justice, and therefore, alternative rules in addition to fault-based liability are necessary. 3.2. The need for collective compensation systems as a supplementary mechanism for patient protection To ensure effective protection and preservation of victims’ right to compensation for harm from medical activities, the mechanism of civil liability must adapt to shifting needs. This means that its compensatory role must be fortified without giving it up. This calls for accepting compensation mechanisms rooted in strict liability beyond the traditional model limited to the victim and the culpable party. Compensation is presently passed on through collective mechanisms.[32] These systems differ depending on the party that covers medical harm. Most common is medical liability insurance, where insurers indemnify damages from medical errors. Another is national solidarity, which compensates through public solidarity. 3.2.1. Medical liability insurance; enhancing compensation guarantees, but insufficient Due to significant advancements in insurance, particularly in terms of providing greater protection for victims, Algerian legislation, under Article 296 of the Health Law, requires both public and private healthcare institutions, as well as healthcare professionals practicing independently, to take out insurance covering their civil and professional liability towards patients and third parties. This obligation is in line with the Algerian Insurance Law No. 95-07 of January 25, 1995,[33], and Executive Decree 07-321, which regulates the operation of private healthcare institutions.[34] 3.2.1.1. The content of the medical liability insurance system The importance of the liability insurance system is the interplay between two interests: on the one hand, the victim’s right to compensation, safeguarded by the rigorous system of liability charged to the doctor, and on the other hand, the insurance system, ensuring enterprises’ financial ability by distributing the financial burden of damage, rather than relying on the liable party alone. This not only strengthens the victim’s right to compensation but also ensures the continuity of medical activity.[35] Regardless of whether medical liability insurance is mandatory or voluntary, it offers protection to both parties. It fosters mutual support between a doctor, who benefits from financial backing for the victim, and a patient, who is relieved from the need to resort to litigation. Thus, insurance serves as the only means to reconcile the interests of both the doctor and the patient. Furthermore, the scope of medical liability insurance extends to risks associated with the medical profession itself and covers damages that are eligible for compensation.[36] 3.2.1.2. Observations on the medical liability insurance system Though the medical liability insurance scheme is important among compensation schemes, there are no criticisms such as: Others assert that the insurance system provokes negligence and a state of complacency in the exercise of the doctor’s duty of care since doctors feel they can be insulated from liability through insurance.[37] Such insurance can enhance negligence and, as a result, liability claims since victims can sue in the knowledge that they will be compensated by the insurer. Irrespective of the merits of liability insurance, victims will be greatly disadvantaged in accessing the insured amount, for example, due to the insolvency of the guilty party or the insurer. There are cases where the insurance system is weak, such as when the causally negligent party is not covered with liability insurance or when the insurance is insufficient to repair the damages to the victim.[38] 3.2.2. Compensation through national solidarity – a complementary mechanism to enhance patient protection Due to shortcomings in medical liability insurance, the pressure of law has risen for a system of strict liability compensation to achieve justice for the patient who cannot prove fault or when there is no fault. In the aftermath of the Perruche ruling (Nov. 17, 2000),[39] the French legislator introduced profound reforms, notably the system of national solidarity within the Kouchner Law (March 4, 2002),[40] that shifted the onus of injury compensation resultant from public and private healthcare to the state.[41] Professor Ahmed Aissa sees national solidarity as the basis for collective insurance for medical risks. This compensation model marks the third stage: the first being reform through objective liability based on harm; the second, medical liability insurance; and the third, a guarantee fund for cases not covered by insurance or lacking proven negligence.[42] 3.2.2.1. Areas of compensation through national solidarity Article L.1142-1, section 2 of the French Public Health Code stipulates: “When the liability of the professional, institution, service, or manufacturer is not determined, any medical accident, iatrogenic condition, or hospital-acquired infection incurs a right to compensation on the part of national solidarity on the part of the patient, or his survivors in case of death, subject to the damage being caused by prevention, diagnostic, or curative acts”.[43] Thus, compensation through national solidarity covers: Medical accidents; Damages from prescribed medical products; Infections or diseases contracted in a medical facility. 3.2.2.2. Conditions for compensation through national solidarity The French legislator, in Article L.1142-1, Paragraph 2 of the Public Health Code, offers conditions for compensation based on national solidarity for victims of medical accidents. It is granted if the injury is a direct result of prevention, diagnosis, or treatment, and if it has serious implications in consideration of the patient’s condition and expected progress of their illness or injury. The seriousness of the injury, as determined by a decree, considers loss of function and interference with professional and personal life. There has to be a minimum of 25% physical or mental disability for compensation. These standards are intended to limit compensation cases, encouraging equity and protecting public funds.[44] Conclusion The continuous development of compensation systems, along with evolving frameworks for civil medical liability, as well as the development of rules and regulations for the use of modern biomedical technologies, including genetic engineering, is essential to achieving a fair and just healthcare system. Every system complements the other since no legal system will function without the other legal systems being consolidated. - Rendering restitution to medical error victims or unforeseen side effects that occur due to advanced medical treatments involving genetic engineering, among others, is an important objective in legal reforms and health policy. Therefore, we propose the following: - The establishment of a specific legal framework to regulate the fields and controls of genetic engineering in the medical field. - The creation of a specific legal system to define the nature of civil medical liability, which we advocate for as a general rule based on personal fault, except for adopting objective liability based on damage, but within specific limits and strict controls. - The establishment of a single compensation system that is complementary to each other, assuring total protection to the victims injured by medical practice. The system would be composed of the traditional compensation system as established via the judge, liability insurance for civil liability, and compensation based on national solidarity, thus making the coexistence of the systems possible, with each one intervening in its domain. Bibliography Journal Articles: Aissani, R. (2016). National Solidarity in Compensation for Medical Accidents – A Comparative Legal Study. International Law and Development Journal, 4(1); Ben Tarya, A. (2014). The System of Strict Product Liability and Its Role in Strengthening the Compensation System for Defective Product Accidents (A Study in Algerian and Comparative Legislation). Algerian Journal of Comparative Law, Comparative Law Research Laboratory, Faculty of Law, Abou Bakr Belkaid University, Tlemcen, Issue 01, Algeria; Quillere-Majzoub, F. (2004). La responsabilité du service public hospitalier. In La responsabilité juridique des professionnels, Vol. I (Responsabilité médicale), Proceedings of the Annual Scientific Conference organized by the Faculty of Law, University of Beirut. Helabi Legal Publications, Volume I, Beirut. Books: Al-Bahji, E. A. (2006). Compensation for Damages Resulting from Genetic Engineering Applications in Light of Civil Liability Rules. Dar Al-Jami’a Al-Jadida for Publishing, Egypt; Al-Bouaichi Al-Kilami, F. (2011). Medical Examinations of Spouses Prior to Marriage – Their Legal Bases and Objectives (1st). Dar Al-Nafaes for Publishing and Distribution, Jordan; Al-Saraireh, A. A. K. M. (2012). Insurance for Civil Liability Arising from Medical Errors (A Comparative Study) (1st). Dar Wael for Publishing and Distribution, Jordan; Bakouche, A. (2011). Towards Strict Liability for Medical Consequences (A Study in Algerian and Comparative Law), unpublished. Dar Al-Jamiaa Al-Jadida, Egypt; Ben Sghir, M. (2015). The Provisions of Medical Error under Civil Liability Rules: A Foundational Comparative Study (1st). Al-Hamed Publishing and Distribution, Jordan; Derése, M.-N. (2008). Perspectives of Medical Law, directed by Geneviève Schamps. Bruylant, Brussels; Fillali, A. (2012). Obligations (Action Worth Compensation) (3rd). Dar Mofam for Publishing, Algeria; Issa, A. (2008). Responsibility of Public Hospitals (A Comparative Study) (1st). Halabi Publishers, Lebanon; Jaber, A. (1990). Insurance for Civil Liability of Physicians (1st). Dar Al-Nahda Al-Arabia, Egypt; Khadir, A. (2014). La Responsabilité Médicale à l’usage des praticiens de la médecine et du droit. Éditions Houma, Alger; Khadir, A. (2014). Judicial Decisions on Medical Liability, Vol. 1. Houma Publishing and Distribution House, Algiers; Mansour, M. H. (1998). Medical Liability. Dar Al-Jamiaa for Publishing and Distribution, Egypt; Rais, M. (2010). Civil Liability of Doctors in Light of Algerian Law. Dar Houma for Publishing and Distribution, Algeria; Rais, M. (2012). Scope and Provisions of Civil Liability of Physicians and Its Proof (1st). Houma Publishing and Distribution, Algiers; Villa, F. (dir.). (2010). The Major Decisions of Medical Law. L.G.D.J, Alpha Edition, Lebanon. Websites: AMPD Languedoc Roussillon. (2013, February). Doping through Genetic Material Modification, Introduction to Gene Therapy, Part II. Hôpital Lapeyronie. Available at: <http://wwwold.chu-montpellier.fr/publication/inter_pub/R226/A12813/IntroductionTG.pdf>. Legal Acts: Executive Decree No. 07-321. (2007). Concerning the organization and operation of private healthcare institutions. Official Journal, No. 10; Executive Decree No. 12-167. (2012). Articles 5, 6, 7, establishing and structuring the National Organ Transplant Agency. Official Gazette No. 22; Executive Decree No. 92-276. (1992). Article 43, Code of Medical Ethics. Official Gazette No. 52; Family Code, Article 7 bis, and Executive Decree No. 06/154. (2006); French Public Health Code. Article L.1142-1; Health Law No. 18-11. (2018). Articles 359-367, 430-432. Official Gazette No. 46; Law No. 2002-303. (04.03.2002). Article 98 of Public Health Code, Official Journal of the French Republic, No. 54, introducing Article L.1142-22 into the French Public Health Code. Available at: <www.legifrance.gouv.fr>; Order No. 95-07. (1995). Concerning the Insurance Law. Official Journal, No. 13; Ordinance No. 05-02. (2005). Article 07, including the Family Law. Official Gazette of Algeria; Ordinance No. 75-58. (1975). Article 131, concerning the Civil Code, as amended and supplemented by Law 05-10. (2005). Official Gazette, No. 44. Court Decisions: Civ. (17.11.2000). n°99-13701, Perruche. In Villa, F. (dir.), Les Grandes Décisions Du Droit Médical. L.G.D.J, Alpha Edition, Lebanon; Council of State. (03.06.2003). Decision in the case of Bologhine Health Sector v. A.L. and the Ministry of Health; (11.03.2003). Decision in the case of M.Kh. v. Béjaïa Hospital; (15.07.2002). Decision in the case of Fernand Hanifi Psychiatric Hospital, Tizi Ouzou Province v. Widow of Moulay; (17.01.2000). Decision in the case of Dorban University Hospital in Annaba v. S.M; (19.03.1999). Decision in the case of Director of the Health Sector in Adrar v. Zaaf Roukia and others; Decision of the Administrative Chamber of the Tlemcen Court of Appeal dated 06.12.2003 (unpublished), cited in: Rais, M. (2012). Theses and Dissertations: Al-Hayari, A. H. (2002). The Civil Liability of the Physician in the Private Sector in Light of the Jordanian and Algerian Legal Systems. (Master’s thesis, Faculty of Law, Ben Aknoun); Idris, M. S. (n.d.). Medical Errors Towards a Balanced Legal Protection for the Parties of Medical Errors. The Independent Commission for Human Rights (Ombudsman Office), Legal Reports Series, No. 77, Palestine; Ouskin, A. (2007). The Legal Status of the Human Being Before Birth. In Family Law and Scientific Developments. Laboratory of Law and Modern Technologies, Faculty of Law, University of Oran; Zaghbib, N. E. H. (2008–2009). Genetic Engineering and the Criminal Protection of the Human Genome. (Master’s thesis, Faculty of Law and Political Sciences, University of Frères Mentouri, Constantine). Footnotes [1] Al-Bouaichi Al-Kilami, F. (2011). Medical Examinations of Spouses Prior to Marriage – Their Legal Bases and Objectives (1st ed.). Dar Al-Nafaes for Publishing and Distribution, Jordan. p. 140. [2] Ouskin, A. (2007). The Legal Status of the Human Being Before Birth. In Family Law and Scientific Developments. Laboratory of Law and Modern Technologies, Faculty of Law, University of Oran. p. 18. [3] Zaghbib, N. E. H. (2008–2009). Genetic Engineering and the Criminal Protection of the Human Genome. (Master’s thesis, Faculty of Law and Political Sciences, University of Frères Mentouri, Constantine). p. 115. [4] AMPD Languedoc Roussillon. (2013, February). Doping through Genetic Material Modification, Introduction to Gene Therapy, Part II. Hôpital Lapeyronie. p. 01. Available at: <http://wwwold.chu-montpellier.fr/publication/inter_pub/R226/A12813/IntroductionTG.pdf>. [5] Al-Bahji, E. A. (2006). Compensation for Damages Resulting from Genetic Engineering Applications in Light of Civil Liability Rules. Dar Al-Jami’a Al-Jadida for Publishing, Egypt. pp. 100, 102. [6] Family Code, Article 7 bis, and Executive Decree No. 06/154 (2006). Ordinance No. 05-02 (2005). Article 07, including the Family Law. Official Gazette of Algeria. [7] Ben Sghir, M. (2015). The Provisions of Medical Error under Civil Liability Rules: A Foundational Comparative Study (1st ed.). Al-Hamed Publishing and Distribution, Jordan. p. 266. [8] Law No. 18-11. (2018). Article 359, Paragraph 2, and Article 413 relating to health. Official Gazette No. 46. [9] Health Law No. 18-11. (2018). Articles 361, 364; Executive Decree No. 92-276. (1992), Article 43, Code of Medical Ethics. Official Gazette No. 52. Health Law No. 18-11. (2018). Articles 363, 367. Health Law No. 18-11. (2018). Article 366; Executive Decree No. 12-167 (2012), Articles 5, 6, 7, establishing the National Organ Transplant Agency. Official Gazette No. 22. Health Law No. 18-11. (2018). Articles 430, 431, 432. [10] Health Law No. 18-11. (2018). Article 360. [11] Khadir, A. (2014). La Responsabilité Médicale à l’usage des praticiens de la médecine et du droit. Éditions Houma, Alger. p. 92. [12] Health Law No. 18-11. (2018). Article 364. [13] Health Law No. 18-11. (2018). Articles 360, 361. Official Gazette No. 46; Executive Decree No. 92-276. (1992). Article 43, Code of Medical Ethics. Official Gazette No. 52. [14] Health Law No. 18-11. (2018). Articles 363, 367. Official Gazette No. 46. [15] Health Law No. 18-11. (2018). Article 366. Official Gazette No. 46; Executive Decree No. 12-167. (2012). Articles 5, 6, 7, establishing and structuring the National Organ Transplant Agency. Official Gazette No. 22. [16] Health Law No. 18-11. (2018). Articles 430, 431, 432. Official Gazette No. 46. [17] Quillere-Majzoub, F. (2004). La responsabilité du service public hospitalier. In La responsabilité juridique des professionnels, Vol. I (Responsabilité médicale), Proceedings of the Annual Scientific Conference organized by the Faculty of Law, University of Beirut. Helabi Legal Publications, Volume I, Beirut. p. 576. [18] Decision of the Administrative Chamber of the Tlemcen Court of Appeal dated 06.12.2003 (unpublished), cited in: Rais, M. (2012). Scope and Provisions of Civil Liability of Physicians and Its Proof (1st ed.). Houma Publishing and Distribution, Algiers. p. 18. [19] Al-Hayari, A. H. (2002). The Civil Liability of the Physician in the Private Sector in Light of the Jordanian and Algerian Legal Systems. (Master’s thesis, Faculty of Law, Ben Aknoun). p. 17. [20] Villa, F. (dir.). (2010). The Major Decisions of Medical Law. L.G.D.J, Alpha Edition, Lebanon, p. 128. [21] Council of State. (03.06.2003). Decision in the case of Bologhine Health Sector v. A.L. and the Ministry of Health; (2003, March 11). Decision in the case of M.Kh. v. Béjaïa Hospital; (15.07.2002). Decision in the case of Fernand Hanifi Psychiatric Hospital, Tizi Ouzou Province v. Widow of Moulay; (17.01.2000). Decision in the case of Dorban University Hospital in Annaba v. S.M; (19.03.1999). Decision in the case of Director of the Health Sector in Adrar v. Zaaf Roukia and others. In Khadir, A. (2014). Judicial Decisions on Medical Liability, Vol. 1. Houma Publishing and Distribution House, Algiers, pp. 64, 67, 78, 84, 88. [22] Quillere-Majzoub, F., op. cit. (n 1), p. 577. [23] Council of State. (15.07.2002). Decision in the case of Mental Hospital “Fernane Harfi” in Bouad Issa, Tizi Ouzou v. Widow Moulay. In Khadir, A. (2014), op. cit., pp. 78-79. [24] Rais, M. (2010). Civil Liability of Doctors in Light of Algerian Law. Dar Houma for Publishing and Distribution, Algeria. p. 402. [25] Al-Hayari, A. H., op.cit., pp. 18-19. [26] Quillere-Majzoub, F., op. cit. (n 1), pp. 577-578. [27] Idris, M. S. (n.d.). Medical Errors Towards a Balanced Legal Protection for the Parties of Medical Errors. The Independent Commission for Human Rights (Ombudsman Office), Legal Reports Series, No. 77, Palestine. pp. 52-62. [28] Ben Sghir, M., Rulings on Medical Error in Light of Civil Liability Rules, op. cit., p. 226. [29] Fillali, A. (2012). Obligations (Action Worth Compensation) (3rd ed.). Dar Mofam for Publishing, Algeria. p. 379. [30] Mansour, M. H. (1998). Medical Liability. Dar Al-Jamiaa for Publishing and Distribution, Egypt. p. 188. [31] Ordinance No. 75-58. (1975). Article 131, concerning the Civil Code, as amended and supplemented by Law 05-10. (2005). Official Gazette, No. 44. [32] Jaber, A. (1990). Insurance for Civil Liability of Physicians (1st ed.). Dar Al-Nahda Al-Arabia, Egypt. p. 01. [33] Order No. 95-07. (1995). Concerning the Insurance Law. Official Journal, No. 13, 1995. [34] Executive Decree No. 07-321. (2007). Concerning the organization and operation of private healthcare institutions. Official Journal, No. 10, 2007. [35] Ben Tarya, A. (2014). The System of Strict Product Liability and Its Role in Strengthening the Compensation System for Defective Product Accidents (A Study in Algerian and Comparative Legislation). Algerian Journal of Comparative Law, Comparative Law Research Laboratory, Faculty of Law, Abou Bakr Belkaid University, Tlemcen, Issue 01, Algeria. p. 132. [36] Bakouche, A. (2011). Towards Strict Liability for Medical Consequences (A Study in Algerian and Comparative Law), unpublished. Dar Al-Jamiaa Al-Jadida, Egypt. p. 332. [37] Derése, M.-N. (2008). Perspectives of Medical Law, directed by Geneviève Schamps. Bruylant, Brussels. p. 408. [38] Al-Saraireh, A. A. K. M. (2012). Insurance for Civil Liability Arising from Medical Errors (A Comparative Study) (1st ed.). Dar Wael for Publishing and Distribution, Jordan. p. 238. [39] Cass. Civ. (2000, November 17). n°99-13701, Perruche. In Villa, F. (dir.), Les Grandes Décisions Du Droit Médical. L.G.D.J, Alpha Edition, Lebanon. p. 467. [40] Aissani, R. (2016). National Solidarity in Compensation for Medical Accidents – A Comparative Legal Study. International Law and Development Journal, 4(1), pp. 13-14. [41] Law No. 2002-303. (2002, March 4). Article 98 of Public Health Code, Official Journal of the French Republic, No. 54, introducing Article L.1142-22 into the French Public Health Code. <www.legifrance.gouv.fr> (Last access: 01.05.2025). [42] Issa, A. (2008). Responsibility of Public Hospitals (A Comparative Study) (1st ed.). Halabi Publishers, Lebanon. p. 132. [43] French Public Health Code. Article L.1142-1. (Paragraph I). [44] French Public Health Code. Article L.1142-1.
Towards the Obligation of Warning Imposed on Banks: A Reading of French Judicial Decisions
The financial crisis and its consequences on households have led the judge to strengthen borrower protections in terms of granting credit. Whether these are granted to professionals or to non-professionals, this is how the concept of uninformed borrower and the duty to warn gradually emerged. The result of hesitant jurisprudential developments, the duty to warn is not applied in the same way depending on the status of the borrower. Therefore, it must be about the legal frameworks. If it appears that the bank’s warning commitment comes into conflict with the bank’s principle of non-interference in the client’s affairs, then in reality its intervention in this obligation is primarily through the elaboration a plan and technical support in the form of warnings, which consists of exercising caution in accordance with what is contained in banking practices. It imposed new obligations on the banker in granting credit, since he was successively subject to the obligation to inform, then to the obligation to advise to guide the borrower, and finally to the obligation to warn, thus giving the bank an active role. Based on this information, the following question arises: What are the legal controls to comply with the warning, the violation of which entails the bank’s liability? Keywords: Bank, duty to warn, uninformed borrower, customer, case law, risks. Introduction The banking sector is one of the most important pillars of the economy. The credit function is also considered the most important of all, given its role in generating profits for banks in particular and for the economy in general. While the credit function of banks contributes to economic development by financing various projects, it is also a fundamental factor in economic collapse, as it involves assuming risks that cause banking crises that threaten the stability of the country’s banking and financial sector. Although banks are committed to upholding high ethical standards in the distribution of credit, they can behave in ways that violate legal or customary requirements, making this process an opportunity to violate their obligations. The financial crisis and its aftermath have led to the strengthening of borrower protection measures regarding credit, whether granted to professionals or non-professionals. This is how the concept of the unsophisticated borrower and the banks’ obligation to warn gradually emerged. The bank’s duty to warn arose from a firm desire to make credit less risky for the borrower, since the latter does not enter into a contract with the bank on an equal footing, and thus to restore a fair balance between the parties. Within the framework of the bank’s duty to warn, the constructive role of the judiciary in the name of good faith and fairness, and its impact, were manifested by the legal recognition of the bank’s obligation to warn the borrower, the guarantor, and the investor. It imposed new obligations on the banker in granting credit, since they were successively subject to the obligation to inform, then to the obligation to advise to guide the borrower, and finally to the obligation to warn, thus giving the bank an active role. Based on this information, the following question arises: What are the legal controls for complying with the duty to warn, the violation of which entails the bank’s liability? To address this issue, we will adopt a descriptive and analytical approach, analyzing relevant legal texts. We will also use a comparative approach, drawing on French case law addressing the topic. To address this issue, we will divide our research into two areas. In the first area, we will address the subjectivity of the bank’s customer warning obligation, and in the second area, we will address the scope of the warning obligation. 1. The Bank’s Obligation to Warn its Customers The bank’s commitment is to warn of the natural consequences of the effectiveness of legal thinking by keeping pace with modern scientific and technological developments, thus working to achieve effective protection of customers by warning them of the dangers that may arise from banking operations. 1.1. The concept of the bank’s obligation to warn The bank’s duty to warn is defined as a preventive measure aimed at assisting the customer by warning them and drawing their attention to enable them to protect themselves against perceived risks.[1] It is also referred to as a “subsidiary obligation for one party to warn the other party or draw their attention to certain circumstances or information, to inform them of the material or legal risks surrounding or arising from this contract”.[2] Thus, the bank must warn its customers by any means if certain financial activities indicate that they are unable to repay the borrowed money. Similarly, if the customer’s activities are suspicious, dangerous, or present negative aspects, the bank must warn them not to carry out these activities.[3] Banks take the form of a warning if the situation leads to this, and the bank or credit broker must warn of the risks of the transaction, explaining its expected risks. The lender, therefore, warns the faithful and prudent borrower about their financial capacity and the debt risks associated with granting loans.[4] To assist the borrower, the French Court of Cassation included in its ruling of July 12, 2005, the bank’s obligation to provide a warning, based on an analysis corresponding to the borrower’s repayment capacity.[5] The French courts have also demonstrated their contribution to the inclusion of this obligation and the clarification of its characteristics by issuing two other decisions: The first ruling handed down by the French Court of Cassation on June 29, 2007, determined the right to benefit from the obligation to notify a borrower who has not provided notice.[6] The second ruling handed down by the French Court of Cassation on May 31, 2011, clarified that a professional is not necessarily a risk-averse borrower.[7] A pharmacist or a business manager is, therefore, not, by right, a person who is informed about financing.[8] Thus, the bank must inform the borrower of the risks associated with the loan, taking into account that the bank’s obligation to notify falls on the borrower even if another bank has previously notified them. Adherence to a warning can be equated with negative advice, not doing something accompanied by an explanation of the dangers, or simply the problems that could be faced if the advice is not followed.[9] 1.2. The distinction between the obligation to warn, the obligation to inform, and the obligation to advise The obligation to inform differs from the obligation to warn, as the latter aims to draw attention to or bring to the attention of the other contracting party a negative impact on the contract, or on the subject matter of the contract, which involves a danger or risk of which the other party must be warned.[10] The information commitment requires neutral, objective, and general information that includes only the conditions of the requested service, without addressing the question of the suitability or otherwise of that service.[11] This means that this transfer process takes place without the bank’s intervention. It consists of transmitting raw information in its simplest form, without any intervention from the bank.[12] The effectiveness of warnings regarding bank loans is achieved when the expected or likely risks of entering into these transactions are identified, risks that the customer might reject if they were aware of them. Conversely, the bank’s reluctance to explain these risks and warn of their dangers constitutes a breach of its duty to warn.[13] If the obligation to advise and guide is considered a positive act, the bank is entitled to provide its client with whatever is convenient for them, and the client is free to follow this advice or not, to remain in compliance with the bank’s instructions. However, the situation must be changed, and the obligation to advise and guide must be replaced by the obligation to warn, which the bank imposes on its client if it discovers the existence of unavoidable errors. The essence of the obligation to advise is that the bank must align the raw information at its disposal with the client’s objective in the financing.[14] Compliance with the warning entails legal consequences that are contrary to the obligation to advise and guide. While it is up to the client to choose whether to follow the bank’s advice and guidance, the situation is different regarding the obligation to warn: the client is not free to choose whether or not to comply. Rather, they must do what is requested, as failure to comply with this obligation could result in risks. However, if the customer fails to respond, the bank has the right to take any precautions it deems appropriate, including stopping or reducing the credit or refusing any increase in it.[15] In some cases, the bank’s obligation is not limited to informing its consumer client, but it must also offer them the optimal solution for their needs. In other words, its obligation goes beyond mere information and includes the need to explain the most appropriate course of action. This involves advising the client on whether or not to enter into the contract, or on adopting a particular position. In this case, the bank is positively influencing the formation of its borrowers’ opinions. Regarding compliance with the warning, this is negative advice intended to draw attention to the possible consequences of failure to comply with the advice provided. However, the obligation to warn is considered less stringent than the obligation to advise, as it does not involve guiding the contracting party as to the intended objective. The second obligation is more stringent, requiring, in addition to warning the client about the risks of the transaction to be concluded, more specific and detailed advice than the warning. Accordingly, the criterion for distinguishing between the previous obligations is the risk criterion, which determines the degree of intervention required by the professional, where the obligation to warn is considered a strict obligation to inform, and if the risk decreases, then we are dealing with a simple obligation to inform, and with the increase in the degree of risk, the degree of the required obligation increases.[16] 2. The Extent of the Bank’s Obligation to Warn its Customers Based on the French Court of Cassation’s decision issued on April 22, 2017, which defined the scope of a bank’s obligation to warn the borrower, and its confirmation that this obligation is limited and determined according to two basic criteria: one related to the borrower’s status, and the second related to the borrowing risks.[17] 2.1 Professional status of the borrower The obligation to warn is closely linked to the borrowing client, and its scope is therefore determined by their status. On this basis, French courts have distinguished between informed and uninformed clients, with the bank’s obligation to warn only the latter. An informed client is one who has repeatedly demonstrated their knowledge of the financial markets. This is considered an informed client, and the bank has no obligation to warn them.[18] The person who provides the warning is also the one who possesses the necessary skills to assess the content, scope, and risks associated with the loans granted by the bank.[19] The French Court of Cassation once again confirmed in a ruling handed down on March 18, 2014, that the person who provides a warning is not subject to the bank’s obligation to warn.[20] Thus, among borrowers, French law has distinguished between informed and uninformed borrowers and has reserved the obligation to warn only to uninformed individuals. French case law has gradually developed criteria for considering and classifying a client as a high-risk borrower. The warning obligation only applies to uninformed borrowers and guarantors; it is therefore up to credit institutions to verify the borrower’s status to determine whether or not they are subject to the warning obligation. In this regard, the French Court of Cassation confirmed on November 19, 2009, that credit institutions must prove that the borrower was warned and was not required to benefit from the duty to warn.[21] Professional standards are also taken into account, as executives or managers cannot benefit from the duty to warn, and it has been ruled that a doctor cannot benefit from the duty to warn.[22] In this case, the bank granted a loan to a professional partnership composed of a doctor and two partners. Then, as the partners were prohibited from practicing, the bank granted another loan to the doctor. Due to the expiration of the deadline, the bank called the doctor to pay. The doctor sued the bank for breaching his duty to warn, and the Toulouse Court of Appeal found that the doctor was a knowing borrower. The Court of Cassation upheld the Court of Appeal’s findings, finding that “the doctor, a high-level medical specialist, could not have been unaware of the risks inherent in the transactions he had undertaken. He had gained experience with the first loan taken out over the past three years and was better placed to assess the prospects for the development of his professional activity and, consequently, his repayment capacity”. The Court of Cassation, therefore, considered that the Toulouse Court of Appeal’s decision was legally justified. We also add that when two people borrow from a bank, the prudential nature of the loan is assessed individually for each of them, and the bank cannot be exempted from its duty to warn of the presence of an informed person on the borrower’s side, whether a third party or a party[23]. Furthermore, the French Court of Cassation has clarified that it is up to the lending institution to determine whether the borrower was aware or not.[24] The status of a borrower, whether aware or not, of a registered company is assessed by the person of its manager.[25] It should be noted that a manager may be considered unwarned, and the bank is obligated to warn him/her in exceptional circumstances, such as in the absence of experience or personal expertise in the field of credit.[26] The French Court of Cassation has held that a person who owns 80% of the capital of the project, which is the guarantor, and who is a manager, must be considered warned.[27] Thus, a client who holds a senior position in a company or has a regular income can easily be viewed as someone who regularly conducts banking transactions and is therefore presumed to be a warned client. The French Court of Cassation also relied on the criterion of knowledge and experience in the financial field as a criterion for determining his/her status. It held that the execution of a similar transaction several years prior and repeated practice in the stock market entail the person performing it being considered a warned client.[28] The most appropriate criterion for achieving the required protection for the client and distinguishing between warned and unwarned clients is the degree of experience in the financial field. This allows professionals and others to benefit from the obligation to warn, depending on the circumstances of each case. 2.2 Risks in banking operations Credit risk is determined based on a personal criterion. If, at the time the loan is granted, it appears that the loan is not suitable for the client’s financial situation, either because it represents a significant financial burden or because their sources of income are unstable, the bank must warn the client to avoid liability. To fully fulfill this obligation, the bank must not rely solely on the information and data provided by the client regarding their financial situation, as the client could provide false information to obtain credit. It must inquire about the client’s financial situation and their ability to pay the monthly installments within the allotted time before granting credit. If the bank determines that the loan is not restrictive and does not carry any risk, it has no obligation to the borrowing client, regardless of their situation, and therefore, its liability is not incurred in this case. We can draw inspiration here from the case of Mr. and Mrs. Hoareau, where a credit institution, by notarial deed dated October 23, 2001, granted a loan of €76,224 to Mr. and Mrs. Hoareau to obtain a cash flow loan. Later, believing that the bank should not have granted them such credit without warning them of the risks of the transaction, the couple filed a lawsuit against the bank seeking compensation for their loss. However, the Rennes Court of Appeal dismissed the case in a judgment handed down on January 11, 2008. The Hoareaus then filed an appeal. They criticized the Court of Appeal, which recognized their status as unsophisticated borrowers, for, firstly, not having verified whether the warning obligation had been complied with, and secondly, for not having investigated whether the credit institution had done so. In other words, it seriously examined the borrowers’ actual financial capacity without focusing solely on their salaries. The couple’s appeal was dismissed by a decision of the Commercial Division of the French Court of Cassation on July 7, 2009.[29] The Court of Appeal ruled that, after noting that the monthly loan payments amounted to €1,510.41, the borrowing couple owned the property and that Mr. Hoareau’s income had increased by September 1, 2001, to €3,811 per month, while his wife’s salary was €1,226. The appeal judges also noted that Mr. Hoareau’s redundancy in October 2002 and his subsequent divorce were the cause of their financial difficulties. Thus, for the French Court of Cassation, these investigations demonstrated that “on the date the contract was entered into, the credit was appropriate for the borrowers’ financial capacity and the debt risks arising from the granting of this loan”. It follows that the bank, “in the absence of such a risk, had no obligation to warn them”, and the Court of Appeal therefore legally justified its decision. For information, the duty to warn is defined as the professional’s duty to draw the attention of the person entering into a contract with them to the negative aspects of the contract or its purpose.[30] Thus, in the context of a loan, the banker must inform his client of the risks of the planned transaction, that is to say the risk of not being able to meet the deadlines due to insufficient income and financial solvency. However, in this case, the term “uninformed”, which was not challenged in this case by either the Court of Appeal or the Court of Cassation, takes on particular significance. All the decisions rendered to date imply that the borrower classified as uninformed, or the ordinary person, i.e., considered to be insufficiently informed of the prior transaction, is the creditor of this obligation to notify. Credit institutions face risks related to the possibility of debtor insolvency. The recovery of borrowed funds is threatened when the latter encounter financial difficulties. Therefore, to reduce these risks, banks conduct a number of inquiries before granting a loan to assess the risk. First, the borrower is interviewed and must provide various written information to assess their financial capacity. In addition, the Foundation obtains information through documents whose publication is required by law. The trade register, companies, and accounting documents therefore constitute a particularly reliable source of information, particularly when the accounts are subject to audit by the statutory auditor. In addition, the bank may be required to access certain files held by the Banque de France, such as individual loan repayment statements. However, for loans granted for large amounts for professional use, the credit institution may require its clients to conduct specific investigations, particularly by an audit firm.[31] On this basis, the French Court of Cassation ruled on July 3, 2012, that since the borrower had not claimed that his pledge was disproportionate to his resources and assets, the Poitiers Court of Appeal was not required to determine whether he qualified as an unsophisticated borrower.[32] Conclusion Considering that the obligation to warn aims to ensure more effective client protection than a specialized professional bank, by requiring the latter to intervene in the client’s affairs to warn them of the risks surrounding the banking process. Among the findings we have reached: Not every professional is necessarily a risk advisor. The most appropriate criterion for ensuring the required client protection and distinguishing a risk advisor from a non-specialized advisor is the degree of experience in the financial field. This is evident from the conflicting decisions of the French Court of Cassation. It is worth noting that the Franco-Algerian legislature and judiciary have not adopted the criterion of distinguishing between an informed and an uninformed client; If the bank’s commitment to warnings appears to conflict with the principle of non-interference in the client’s affairs, then in reality, its intervention in this commitment is achieved by implementing a plan and providing technical support in the form of warnings, which translates into the exercise of due diligence in accordance with banking practice; Like the obligation to inform and the obligation to advise, the obligation to warn is only one part of the general obligation of prudence and diligence, and may occur before the conclusion of the contract or during its execution. We also recommend that the Algerian legislator, to protect the borrowing consumer, enact legal provisions to determine the controls on the obligations of banks, in particular the warning obligation, by specifying to what extent the status of the borrower is verified (warned or not), and by specifying to what extent the loan granted is sufficient, not onerous, concerning the financial capacity of the borrower, to exclude the liability of the bank due to the absence of a warning obligation on its part. Bibliography Books: Fabre-Magnan, M. (1992). On the obligation to provide information in contracts. Essay on a theory, LGDJ, nos. 11 and 467; Gavalda, C., Stoufflet, J., Banking Law, Litec, 2008, 7th, no. 497; L.O. (2006). Banking Responsibility in Financial Credit. Al-Halabi Legal Publications, Beirut, Lebanon; Mughbghab, N. (2009). The Principle of Non-Liability of the Bank Distributing Credits and Its Exceptions. Al-Halabi Legal Publications, Beirut, Lebanon. Articles: Boukhrs, A. (2017). Obligation to Warning in Bank Credit Contracts. Legal and Political Studies, University of Boumerdes, Algeria, 2 (1); Heisser-Vernet, J-M. (2014). Banks and the granting of credit: from advice to warning. Experts, no (14); Khalifi, M. (2011). Commitment to Electronic Media and Transparency in E-Commerce. Policy and Law Notebooks, University of Ouargla, 3 (4). Rafika, B. (2018). Obligation to Inform Consumers in the Field of Bank Loans. Policy and Law Notebooks, University of Kasdi Merbah, Ouargla - Algeria, 10 (10); Theses: Zarwaq, A. (2018). Protection of Bank Customers in Algerian Law. PhD Thesis, Faculty of Law and Political Science, Mouloud Mammeri University, Tizi Ouzou, Algeria. Judicial decisions: 1er Civ., April 30, 2009: JCPE 2009; 1er Civ., November 28, 2012, n°11-26.477; com., April 11, 2012, n°446, 10-25.904: Juris Data: n° 2012-007024; com., January 12, 2010, no. 08-17.956, Juris Data: no. 2010-051089; com., July 3, 2012, no. 11-33.665; com., July 7, 2009: Hoareau and others v. Société Crédit Lyonnais - Appeal no. 08.13.536 D - Dismissal (C. app. Rennes, January 11, 2008) - gr. no. 735P+B; com., March 18, 2014, no. 12-28.784, Magniem C/sté BNP Paribas; com., May 22, 2013, n°11-20.398: Juris Data: n° 2013-010117; com., May 26, 2010, n°562, 08-10.274: Juris Data: n° 2010-007391; com., November 9, 2010, No. 09-69.997, F-D: Review of banking and financial law, Juris Data No. 2010-020804; com., November 17, 2009: Juris Data: n° 2009-050458; com., November 19, 2009, n°07-21.382: Juris Data: n° 2009-050333; Court of Cassation, Civ.1er, April 25, 2007, n°06-15.258; Court of Cassation, Civ.1er, July 12, 2005, Jurisdata 2005-029447; Court of Cassation, Civil Commercial Chamber, April 20, 2017, 15-16.316; Court of Cassation, Joint Chamber, June 29, 2007, 05-21.104; Bulletin 2007, Joint Chamber, No. 7; Court of Cassation, Com. May 31, 2011, Jurisdata 2011-010665. Court of Cassation, Mixed Chamber, June 29, 2007, Jurisdata 2007-039908; Footnotes [1] Khalifi, M. (2011). Commitment to Electronic Media and Transparency in E-Commerce. Policy and Law Notebooks, University of Ouargla, 3 (4), p. 206. [2] Zarwaq, A. (2018). Protection of Bank Customers in Algerian Law. PhD Thesis, Faculty of Law and Political Science, Mouloud Mammeri University, Tizi Ouzou, Algeria, p. 180. [3] Mughbghab, N. (2009). The Principle of Non-Liability of the Bank Distributing Credits and Its Exceptions. Al-Halabi Legal Publications, Beirut, Lebanon, p. 137. [4] Heisser-Vernet, J-M. (2014). Banks and the granting of credit: from advice to warning. Experts, no (14), p. 27, states: “Takes [at banks] the form of an alert: If the situation leads to it, the banker or credit intermediary must warn of the dangers of the operation, detailing its foreseeable risks”. [5] Court of Cassation, Civ.1er, July 12, 2005, Jurisdata 2005-029447. [6] Court of Cassation, Mixed Chamber, June 29, 2007, Jurisdata 2007-039908. [7] Court of Cassation, Com., May 31, 2011, Jurisdata 2011-010665; Court of Cassation, Civ.1er, April 25, 2007, n°06-15.258. [8] Heisser-Vernet, J-M. op.cit, p. 27. [9] Boukhrs, A. (2017). Obligation to Warning in Bank Credit Contracts. Legal and Political Studies, University of Boumerdes, Algeria, 2 (1), p. 125. [10] Rafika, B. (2018). Obligation to Inform Consumers in the Field of Bank Loans. Policy and Law Notebooks, University of Kasdi Merbah, Ouargla - Algeria, 10 (10), p. 14. [11] Boukhrs, A.A. Op. cit, p. 125. [12] Misqawi. L.O. (2006). Banking Responsibility in Financial Credit. Al-Halabi Legal Publications, Beirut, Lebanon, p. 169. [13] Rafika, B. op. cit., p. 14. [14] Misqawi, L.O. op.cit, p. 169. [15] Mughbghab, N. Op.cit, pp. 136-137. [16] Rafika, B. Op.cit, p. 14. [17] Court of Cassation, Civil Commercial Chamber, April 20, 2017, 15-16.316, unpublished, provides that: “The obligation to warn a credit institution with regard to an uninformed borrower before granting him a loan only concerns the adaptation of the loan to the financial capacities of the borrower and the risk of indebtedness resulting from its granting, and not the risks of the financed transaction”; Court of Cassation, October 11, 2011, no. 10-19091. [18] Cass.com., November 9, 2010, No. 09-69.997, F-D: Review of banking and financial law, Juris Data No. 2010-020804. [19] Cass.1er Civ., November 28, 2012, n°11-26.477. [20] Cass.com., March 18, 2014, no. 12-28.784, Magniem C/sté BNP Paribas. [21] Cass.com., November 19, 2009, n°07-21.382: Juris Data: n° 2009-050333. [22] Cass.com., May 26, 2010, n°562, 08-10.274: Juris Data: n° 2010-007391. [23] Cass.1er Civ., April 30, 2009: JCPE 2009. [24] Cass.com., November 17, 2009: Juris Data: n° 2009-050458. [25] Cass.com., May 22, 2013, n°11-20.398: Juris Data: n° 2013-010117. [26] Cass.com., April 11, 2012, n°446, 10-25.904: Juris Data: n° 2012-007024. [27] Court of Cassation, Joint Chamber, June 29, 2007, 05-21.104; Bulletin 2007, Joint Chamber, No. 7. [28] Cass.com., January 12, 2010, no. 08-17.956, Juris Data: no. 2010-051089. [29] Cass.com., July 7, 2009: Hoareau and others v. Société Crédit Lyonnais - Appeal no. 08.13.536 D - Dismissal (C. app. Rennes, January 11, 2008) - gr. no. 735P+B. [30] Fabre-Magnan, M. (1992). On the obligation to provide information in contracts. Essay on a theory, LGDJ, nos. 11 and 467. [31] Gavalda, C., Stoufflet, J., Banking Law, Litec, 2008, 7th ed., no. 497. [32] Cass.com., July 3, 2012, no. 11-33.665.
Hague Systems on Industrial Designs Protection as an Optimization of IMT-GT ASEAN Economic Cooperation
In the industrial design rights protection regime of IMT-GT ASEAN member countries, there are two instruments as a framework, namely TRIPS and the Hague System. The Hague system is needed to elaborate on the different mechanisms in simplifying the unified design registration process, which simultaneously applies in several member countries. Still, Indonesia, Malaysia, and Thailand have not yet completed ratifying the Hague System into national law and have not revised the legal regulations regarding industrial design in their countries, respectively. In Indonesia, there are still differences in the protection concept between what is regulated in TRIPS and the substance of the Industrial Design Law regarding first to use or first to file, and it still requires domestic registration. This normative legal research concludes the need for harmonization between the rules in treaties as a source of international law and national law, so that the clauses in trade cooperation contracts do not conflict with the laws of the respective countries that have ratified them. Unification through the Hague system also needs to be supported by expanding the scope of provinces implementing the IMT-GT cooperation project, followed by the strategic policies of each country. Keywords: Industrial design, IPR, Hague, IMT-GT. Introduction Indonesia’s commitment to optimizing regional trade cooperation between Indonesia and ASEAN countries has been realized through the formation of the ASEAN IMT-GT (Indonesia - Malaysia - Thailand Growth Triangle) sub-region since 1993 between the leaders of the three countries.[1] Until this year, IMT-GT cooperation projects have been implemented in real terms, including halal industry projects, technology industry cooperation, tourism, and industrial downstream in IMT-GT rubber cities and digital malls in the IMT-GT e-commerce platform.[2] Indonesia, Malaysia, and Thailand as WIPO member countries which are committed to the development of IPR since the promulgation of TRIPS are of course also obliged to implement the latest developments related to the issue of global scale intellectual property protection including industrial design which now requires ratification of the Hague system since the 1999 Geneva Act. This was also ordered in the ASEAN IPR Action Plan 2016-2025.[3] So it is also an obligation for all WIPO member countries and countries in ASEAN that are committed to the ASEAN IPR Action Plan, including Indonesia, Malaysia, and Thailand, to take steps to accede to the Hague system in their country’s national legal system. Apart from being a form of compliance with the results of international treaties or conventions, this also plays an important role in strengthening regional trade cooperation between the three countries in the ASEAN sub-region. Malaysia and Thailand have shown their seriousness in complying with the Hague system accession obligations at the Parliamentary level. So far, the Indonesian government itself has planned to accede to the Hague Agreement, although this plan has not yet been realized. The Hague System is an international system for registering industrial designs managed by WIPO, making it easier for WIPO member countries. The obligation to ratify the Hague Agreement, also known as the Hague Statute or Hague System, should be contained in the revision of the Industrial Design Law and become a priority for the work plan of the Directorate General of Intellectual Property for the future, but to date, no final steps have been taken regarding accession to the Hague System. The Hague System, apart from being beneficial for the industrial sector as registrants, will also be of great benefit to the bureaucracy, especially the Directorate General of IP in terms of minimizing administrative workload, manual data entry, inspection, and issuance of industrial design certificates which were originally the obligation of the Directorate General of IP to change to the obligation of WIPO cq Bureau International. The unification of the Hague system will not only clarify registration fees and standards but also simplify bureaucratic matters.[4] IPR as a part of economic law was included in the liberalization of free trade agendas.[5] Indonesia, as an active member of WTO and WIPO, should become an active compliance country in ratifying treaties that are closely related to international trade and respect for intellectual property as well as ensuring the implementation of national legal sources resulting from its ratification in accordance with WIPO’s strategic plan and the ASEAN IPR Action Plan. Considering the importance of ratification of the Hague system in the revision of regulations in the field of industrial design in Indonesia as a member country of IMT-GT ASEAN, this normative legal research will discuss the principle of full compliance in the obligation to ratify the Hague system in Indonesia as a member country of IMT-GT ASEAN and how to unify the Hague system in encouraging the strengthening of IMT-GT ASEAN regional trade cooperation. The normative legal research was conducted by conducting a literature and conceptual study through a statutory approach and a conceptual approach to observe the solution for certain issues. 1. Full Compliance Principle on the Ratification of the Hague System into the Indonesian National Law System Ratification is the official action of a country to bind itself to an international agreement and statute. It is usually a result of relations developed between countries in an international organizational forum.[6] Ratification by Article 1, point 2 of Law Number 24 of 2000 concerning International Agreements (“UUPI”) is interpreted as a legal act of ratification to bind oneself to an international agreement in the form of ratification, accession, acceptance, and approval.[7] Indonesia has often ratified international agreements or international statutes in the form of statutory regulations, namely ratification through acts or Presidential Regulations. In the field of IPR itself, Indonesia ratified TRIPs for the first time through Law Number 7 of 1994 concerning the Ratification of the Agreement Establishing the World Trade Organization. Ratification is intended to enact the provisions of the TRIPs Agreement into national law. The differences in the political and legal climate between local and global will influence the enactment of the provisions in TRIPs. Another impact of this ratification is to reduce the number of IPR violations in Indonesia, especially industrial property rights.[8] The legal consequence of ratification is that it is subject to national law.[9] So in ratifying, Indonesia has directly agreed to the agreement of various member countries, even though the legal and political climate was different. By ratifying an international agreement it shows the political will of Indonesia to be bound and accept the rights and obligations arising from the agreement. Ratification of international agreements in the form of laws was carried out if they involved fundamental matters.[10] The result of ratification is a general agreement that applies globally among member countries of the WTO as international organizations. On the other hand, there may still be a mismatch between legal politics in Indonesia and the global world.[11] It is important for Indonesia to adjust the legal and political climate in implementing the TRIPs that must not conflict with the juridical, philosophical, and sociological foundations of the Indonesian state.[12] Indonesia’s participation in membership of international organizations and the ratification of international agreements as a form of implementation of Article 96 of Law Number 13 of 2022 concerning the Second Amendment to Law Number 12 of 2011 concerning the Formation of Legislation. The formation of legislation does not only focus on the material substance but also compliance with formal aspects to create legal products with integrity.[13] Therefore, the principle of absolute compliance (full compliance) is the most urgent principle to be implemented in the Hague statute ratification process. In efforts to ratify the Hague Agreement and adopt it into national regulations, national interests must remain the main focus. The draft of the new Industrial Design Bill must be used as a barometer for the development of Design Policy. Full compliance in the context of the law of treaties could be translated to the action of observance, application, and interpretation in accordance with or not opposed to the framework of that treaty. However, there is one concession provided in the international legal treaty regime for the contracting parties in performing their duties, namely, reservations. It means “a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”.[14] Reservations then may perform as a way to not be bound by the provision of a certain rule of a treaty, and therefore not fully comply with the treaty comprehensively.[15] Specifically, the full compliance principle emanates from the wording of Article XVI, point 5 of the Marrakesh Agreement.[16] It stated that “[n]o reservations may be made in respect of any provision of this Agreement. Reservations in respect of any of the provisions of the Multilateral Trade Agreements may only be made to the extent provided for in those Agreements [...]”. In essence, reservations cannot be made to the Agreement, including its Annexes, unless provided otherwise. Annex 1C covers the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPs Agreement).[17] Concerning industrial designs, it requires contracting states to protect designs that are new or original, but not to protect designs that are different merely by technical or functional means.[18] National laws of the contracting state, whether industrial design law or copyright law, shall provide requirements for obtaining design protection.[19] The legitimate interests of third parties may be taken into account in establishing limited exceptions without prejudice to the legitimate interests of the owner of the protected design.[20] The legitimate interests of the owners of the protected design shall remain primary. Commercial purpose usage of the protected design by third parties might be restricted as the owner “have the right to prevent third parties not having the owner’s consent from making, selling or importing articles bearing or embodying a design which is a copy, or substantially a copy, of the protected design” and the protection shall cover at least ten years.[21] To the TRIPs Agreement, there shall not be any reservations made without the consent of other contracting states.[22] The legal relationship between contracting states, in terms of whether any industrial designs may have legal protection in their respective jurisdictions, then, relies on consent. By acting in accordance with the said framework, contracting states may be regarded as satisfying the first dimension of the full compliance principle. Another dimension that may demonstrate whether contracting states are performing full compliance can be seen in the principles used in their domestic laws. Law Number 31 of 2000 concerning Industrial Design firmly takes a position in the ‘first to file’ principle. It means that designs need to be formally registered before they can be protected.[23] While it is not expressly stated, the TRIPs Agreement does not require industrial designs to be registered first to grant protection. In other words, it gives off the impression that the ‘first to use’ approach is taken considerably.[24] Although Indonesia has ratified the TRIPs Agreement,[25] the full compliance principle is not enforced. The Hague System co-exists alongside the TRIPs Agreement to provide a robust framework for the protection of industrial designs. While the TRIPs Agreement imposes obligations on contracting states to provide baseline protection, the Hague System lays out efficient, practical mechanisms for owners to secure their design internationally. An examination of the legal relationship between the Hague System and the Indonesian law system concerning industrial designs needs to be done carefully. Meanwhile, Indonesia has not yet ratified the Hague System; it is understood that full compliance has not been adhered to. There might be hints of the implementation of the Hague System in the Indonesian legal system, nevertheless.[26] The most prominent contrast point is on Article 3, which mandates that industrial designs must be registered to receive legal protection in Indonesia.[27] This aligns with the need for formal registration, although the Hague System allows for international registration of designs through a single-uniform application.[28] The latter can streamline the process for multiple jurisdictions. Therefore, harmonization between international agreements and national law is required to perform full compliance with the Hague System. 2. Industrial Design Unification in Encouraging International Trade Cooperation in the IMT-GT ASEAN Sub-Region The Hague Agreement or the Hague Statute from the 1961 Hague Agreement and Geneva Act 1999 was a system that allows design owners to centrally register their designs with a number of countries and/or inter-state organizations.[29] This method provides convenience because it only passes through one door, one language, and one currency and is cost-efficient because the industrial design right holder does not need to apply for registration of his design in several other destination countries separately.[30] Aiming to develop industrial design products that are more varied and have the same clear standards. This classification was prepared through a periodic revision process according to current developments by WIPO, as the center for carrying out the administration of the Hague Agreement at the international level.[31] The Indonesian government has now prepared a draft Presidential Regulation concerning Ratification of the Statute of the Hague Conference on Private International Law, which has been submitted by the President to the Indonesian House of Representatives for discussion since 6 August 2024. Indonesia itself has become a member of the HCCH, an intergovernmental organization that focuses on the unification of international private law with a total of 90 member countries, including Malaysia, the Philippines, Vietnam, Singapore, and Thailand from ASEAN. HCCH membership is also useful in resolving cross-border trade disputes and obtaining technical guidance to facilitate accession, thereby providing stronger legal certainty in encouraging increased confidence from investors and international trade partners.[32] Indonesia, Malaysia, and Thailand themselves as members of the HCCH have also become members of the ASEAN sub-region as IMT-GT, which was officially ratified in 1993 by Indonesian President Soeharto, Malaysian Minister Tun Dr. Mahathir Mochammad, and Thai Prime Minister Chuan Leekpai. IMT-GT has strengthened the connectivity of the ASEAN sub-region in economic growth, including the green economy trend.[33] The green economy in recent years prioritized regional economic development to reduce disparities and increase the competitiveness and welfare of society in the territory of the 3 countries as the ASEAN sub-region. This is proven by the drastic increase in IMT-GT’s gross domestic income from USD 20 billion in 1993 to USD 405.7 billion in 2021. This IMT-GT collaboration continues to be fostered and improved to achieve the 2025 ASEAN connectivity master plan so that digital transformation and creative economic development in line with green economy issues and SDGs can run optimally, especially as IMT-GT has declared a vision to become an integrated, innovative region. Inclusive, green, and sustainable in 2036. For this reason, the launch of the Joint Business Council (JBC) program was launched, which aims to open up opportunities for direct trade and investment cooperation with a business-to-business concept between Indonesia, Malaysia, and Thailand. Various collaborative projects, ranging from the creative economy sector, including tourism, telecommunications, digitalization, special economic zones, and renewable energy, to Human Resources (HR) development, for example, include the Kuala Tanjung Industrial Estate project. The creative economy as a trade sector is closely related to IPR and cannot be separated from the other.[34] IPR is the basis of rights for creative economy business actors, while the creative economy itself is a forum for the development of innovation and the utilization of the moral and economic rights of IPR holders regarding these innovations, both copyright and industrial property rights. Industrial property rights were involved in international transactions with various manners of transferring rights.[35] Industrial property rights include rights to inventions and designs in the form of patents, brands, geographical indications, trade secrets, industrial designs, and integrated circuit layouts, as well as protection of plant varieties. Industrial designs as a form of industrial property rights have an equally important role as brands and patents as objects in international trade. International mark registration has been made easier since the Madrid Protocol was ratified through Presidential Regulation Number 92 of 2017 concerning Ratification of the Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks, as well as international scale patent registration through the application of the Patent Cooperation Treaty (PCT) mechanism. It has been adopted in the regulation of the unification of the international industrial design registration system with the ratification of the Hague statute, more popularly known as the Hague System. The Hague System makes it easy for companies to extend the protection of their intellectual property across multiple countries.[36] It allows them to utilize and protect their industrial designs in the global marketplace. Once the Hague system is truly realized, it will be an attraction for designers to want to register the industrial designs they have created. The Hague system provides more freedom regarding the period of protection that will be obtained by the designer. As an illustration, in the Industrial Design Law currently implemented in Indonesia, the protection is only 10 years, but in the Hague system, the protection is 15-20 years, and the protection period can be extended so that it does not immediately become public domain. Thailand itself has planned to extend the protection period to 15 - 20 years in the accession process, which is still ongoing. The formal requirements and material requirements between Indonesia, Malaysia, and Thailand are similar. The conditions that must be met before applying for design registration consist of formal requirements and material requirements. Formal requirements are in the form of an obligation to provide a written statement including identity, along with proof of ownership of the design, a replica of the product design, a deed of establishment of the legal entity, a power of attorney if necessary, and proof of payment for registration. Material requirements in the form of aspects of novelty, practicality, and applicability are not included in the list of exceptions to obtain industrial design rights, and the creator is a subject who has the right to register the work. Industrial Design registration in Indonesia is still a very long process. The application is addressed to the Directorate General of Intellectual Property Rights for further formality checks. All applications that have met formal/administrative requirements[37] will be announced no later than 3 (three) months from the date of receipt, so that any third party can submit written objections covering matters of a substantial nature no later than 3 (three) months. Furthermore, to answer the objection, the Industrial Design Applicant can also submit an objection no later than 3 (three) months. In the event of an objection, a substantive examination must be carried out, which takes a maximum of 6 (six) months from the end of the announcement date. If the objection is rejected, the party concerned can submit a lawsuit to the Commercial Court up to cassation. Objections received can be forwarded to the issuance of a certificate. The issuance of a certificate takes a maximum of 30 (thirty) days from the end of the period given for submitting objections. This means that an industrial design certificate can only be obtained after a total duration of approximately 18 months. Not to mention the costs that must be incurred during this relatively long time, so it could encourage businessmen to put aside the urgency of registering industrial design rights. Bureaucratic problems that do not save time and costs are also experienced by WTO member countries, including ASEAN countries and the IMT-GT within them. WIPO was trying to facilitate the flow of international registration with the idea that an industrial design right does not have to be registered first in the country of origin of the applicant/creator, following the rules of that country of origin and then re-registered when the industrial design right is to be developed in another country. WIPO’s simple step is a single registration for an industrial design right originating from a country, so that it can legally apply not only to the country of origin but also internationally at the same time. This scheme was later called the Hague system. Indonesia itself can choose to become a “Receiving Office/Transmitting Office” or not. If Indonesia chooses to become an intermediary office, Indonesia must first be ready in terms of the online system and filing, because if the Intellectual Property Office in Indonesia does not master it, it could slow down the application process. Likewise, Thailand and Malaysia. Referring to the commitment of Indonesia, Malaysia, and Thailand to the ASEAN IPR Action Plan 2016-2025, where one of the main objectives is the accession of ASEAN member countries to the Hague Statute, the implementation of the Hague System should not be delayed for a long time. Indonesia, Malaysia, and Thailand have not ratified the Hague Statute. While Indonesia has reached the stage of drafting the Draft Presidential Regulation, Thailand has reached the stage of being discussed by Parliament. As of November 29, 2022, the Thai Parliament has approved the accession, and it is being reviewed by the Office of the Council State in Thailand. In Thailand, the industrial design registration process begins with a preliminary examination. If the requirements in the preliminary examination are met, an announcement will be made to the public that the objection period will last for 90 days, followed by a substantive examination. Therefore, the total time to carry out the industrial design registration process in Thailand is from 16 to 24 months, but it may be longer depending on the DIP’s ability to process the application and complaints, objections, and additions that arise during the application process. Thailand has regulated legal protection for industrial designs in the Patent Act of Thailand 1999, BE 2522, as amended by Patent Act (No. 2) BE 2535 and Patent Act (No. 3) BE 2542 so that with the ratification of the Hague statute, changes should also be made regarding the elimination of substantive examinations or combining preliminary examinations with substantive examinations to simplify the process, make it easier to submit claims, extend the protection period as is also being planned by Indonesia in the relevant Draft Presidential Regulation. The capabilities of the auditor profession registered with the Thai Intellectual Property Department are also a consideration for Thailand, whether to become a Receiving Office or not. Malaysia, as an IMT-GT country that has the Industrial Designs Act 1996, has published a “public consultation paper inviting views on the proposed new provisions and amendments to the Industrial Designs Act 1996 in 2022”.[38] It is a part of the practice of compliance with the ASEAN IPR Action Plan 2016 - 2025. The Hague Statute should be adopted as amendments to the Industrial Designs Act after the Hague Statute is ratified in Malaysia. Regarding the accession process of international agreements, there are two special laws in Malaysia as a guideline to ratifying international agreements and the application in business relations between countries, namely the Malaysian Arbitration Act 2005 and the Reciprocal Enforcement of Judgment Act 1958.[39] The increasing impact of international agreements on national legal systems has had the effect of unifying economic cooperation.[40] The joining of IMT-GT with the accession to the Hague statute will make it easier for industrial design owners and companies from the three relevant countries to obtain protection for their industrial designs in many countries or regions using one international application with minimal formalities, thereby increasing competitiveness in the global market and mutual benefits in international trade cooperation activities that exist between the three countries. Examples of IMT-GT business collaboration in the realm of creative industry and IPR that are already underway include the assimilation program of Malay culture and Riau culture in the form of modifications to Malay cultural products, both in the context of copyright designs and industrial design contexts which have also been processed according to market tastes accompanied by optimizing the use of digital platforms for marketing on an international scale.[41] Likewise, Lampung has succeeded in developing a digital economic ecosystem related to IMT-GT.[42] The halal industry program is also one of the IMT-GT programs that has been successfully implemented.[43] Therefore, both the Governments of Indonesia, Malaysia and Thailand should make accession to the Hague statute a priority in regulating industrial design in the future as a form of compliance with the 1961 Hague Agreement and the ASEAN IPR Action Plan, as well as to increase international trade collaboration between the three countries as sub -IMT-GT. This may support the implementation of economic benefits for their Special Border Economic Zone (SBEZ). IMT-GT itself currently covers implementation in 32 provinces, namely 8 provinces in Malaysia, 14 provinces in Thailand, and 10 provinces in Indonesia.[44] Both governments have a hope that in the future it will be expanded to other provinces in the territories of these three countries in line with efforts to strengthen regulations in the business sector through the ratification of the Hague system into national legal products which of course will then be followed by other strategic policy steps in the business sector. Conclusion Ratification of the Hague system was urgent to be implemented in Indonesia, Malaysia, and Thailand as fellow WIPO and WTO member countries. It was an implementation of the full compliance principle of international treaties that not only serves as a form of compliance through TRIPS, the 1961 Hague Agreement, and the 1999 Geneva Act, but also as a manifestation of Indonesia’s commitment to complying with the ASEAN IPR Action Plan. The substance of the Industrial Design Bill which will adopt the Hague system mechanism must not ignore the legal rights and choices of parties entering into industrial design contracts in the international scope so that harmonization between international agreements and national law is required without ignoring the application of the principle of full compliance in the accession process until application of the legal rules resulting from its accession. The unification of industrial design registration has great benefits for simplifying industrial design registration and reducing the burden on government bureaucracy. The implementation of the Hague system can encourage the creation and registration of industrial designs in Indonesia, Malaysia, and Thailand, and has implications for increasing trade cooperation between them and expanding the scope of provinces or districts implementing IMT-GT cooperation projects, which must be followed by strategic policy steps. Bibliography Andersson, D.E., et al. (2023). Industrial Design Rights and The Market Value of Firms. Technological Forecasting and Social Change 196 (5). DOI: <https://doi.org/10.1016/j.techfore.2023.122827>; Astariyani, N.L.G., et al. (2023). Preventive and Evaluative Mechanism Analysis on Regulatory and Legislation Reform in Indonesia. Law Reform 19 (2); Baimurratov, M., et al. (2024). Research on the Impact of International Agreements and Standards on National Legal Systems and Legal Order. Amazonia Investiga 13 (74). DOI: <https://doi.org/10.34069/AI/2024.74.02.8>; Brand, R.A. (2020). Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead, Netherlands International Law Review 67. DOI: <https://doi.org/10.1007/s40802-020-00152-9>; Chandra, R., et al. (2024). Halal Industry Development in Indonesia - Malaysia - Thailand Growth Triangle (IMT-GT): An Analysis of Islamic Diplomacy in Enhancing Regional Cooperation and Economic Development, Iconities 2; Dayang-Affizah, A. M. (2016). Convergence Behaviour of Growth Triangle: The Case of IMT-GT. Business and Economic Journal 7 (2). DOI: <https://doi.org/4172/2151-6219.1000205>; Doshi, N.R. (2021). The Law of Treaties with Special Focus on Evolutionary Interpretation of the Treaties. International Journal of Law Management & Humanities 4 (3), pp.2696 - 2608. DOI: <https://doij.org/10.10000/IJLMH.11741>; Geofrey, M.J.C., Roisah, K. (2020). Patenting Deal in Indonesia: Article 20 of the Patent Law in the Political Perspective of International Trade Law. Law Reform 16 (1). DOI: <https://doi.org/10.14710/lr.v16i1.30302>; Haas, M., (2022). Building Growth Areas in Asia for Development and Peace. Jadavpur Journal of International Relations 26 (1). DOI: <https://doi.org/10.1177/09735984221081559>; Hartoyo, B., Noor, M.F. (2019). The Hague Convention 1961: Solution of Foreign Public Document Legalization for Indonesia and ASEAN Member Countries. ABC Research Alert 7 (1). DOI: <https://doi.org/10.18034/ra.v7i1.249>; Heikkila, J.T.S., Peltoniemi, M. (2023). The Changing Work of IPR Attorneys: 30 Years of Institutional Transitions. Technological Forecasting and Social Change 197. DOI: <https://doi.org/10.1016/j.techfore.2023.122853>; Jorgenson, L., Fink, C. (2023). WIPO’s Contributions to International Cooperation on Intellectual Property. Journal of International Economy Law 26 (1). DOI: <https://doi.org/10.1093/jiel/jgac049>; Jueptner, E. (2020). The Hague Jurisdiction Project - what Options for the Hague Conference? Journal of Private International Law 16 (2). DOI: <https://doi.org/10.1080/17441048.2020.1766220>; Kibtiah, T.M., Assegaf, S.N.Z. (2024). Recovery of the ASEAN Economy Through a Sustainable Tourism Sector in the Post-Covid-19. Thammasat Review 27 (2). DOI: <https://10.14456/tureview.2024.21>; Law Number 31 of 2000 regarding Industrial Design; Martinez, I., Chelala, S. (2021). Trade Agreements and International Technology Transfer. Review of World Economics 157. DOI: <https://doi.org/10.1007/s10290-021-00420-7>; Martínez-Zarzoso, I., Chelala, S. (2021). Trade Agreements and International Technology Transfer. Review of World Economics 157. DOI: <https://doi.org/10.1007/s10290-021-00420-7>; Nabila, D.D., Sanusi, S. (2023). Protection for Registered Trademark Under Indonesian Law and the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Student Journal of International Law 3 (2). DOI: <https://doi.org/10.24815/sjil.v3i2.24121>; Nishitani, Y. (2023). Challenges of Private International Law in Asia. The Korean Journal of International and Comparative Law 12 (1). DOI: <https://10.1163/22134484-12340186>; Nurdin, M., et al. (2022). Urbanizing the Regional Sector to Strengthen Economy and Business to Recover from Recession (1st edition), Routledge Publisher; Othman, E., et al. (2021). Malaysia: Malaysian Perspectives on the Hague Principles, Oxford International Law Series; Pop, C.D. (2023). Treaty Ratification Law - Empirical Study on the Temporal Efficacy of the Parliamentary Procedure. STUDIA 68 (1). DOI: <https://doi.org/10.24193/SUBBiur.68(2023).1.1>; Smith, R.B., et al (2023). Impact of Plurilateral Free Trade Agreements on Innovation: Example of ASEAN. Journal of ASEAN Studies 11 (1). DOI: <https:/doi.org/10.21512/jas.v11i1.7975>; Soraya, J., Althafzufar., M.A. (2024). Intellectual Property Rights Protection for Actors in the Creative Economy Based on Intellectual Property Rights Law Number 28 of 2014 Concerning Copyright. Realism: Law Review 2 (1); Sudirman, A., et al. (2023). Kerjasama Indonesia Malaysia Thailand Growth Triangle dalam Upaya Pemulihan Ekonomi Pasca Pandemi Covid-19. Governance 10 (2). DOI: <https://doi.org/10.56015/gjikplp.v10i2.120>; Sulistianingsih, D., Ilyasa, R.M.A. (2022). The Impact of TRIPS Agreement on the Development of Intellectual Property Laws in Indonesia. Indonesia Private Law 3 (2). DOI: <https://doi:10.2504/iplr.v3i2.2579>; Tandungan, E.S., et al. (2021). The Legal Provisions of Indonesia Law System on International Agreements. Prosiding The 1st WICSTH; Wahyuningtyas, S.Y., Giovannus, D. (2024). Chapter 22: IPRs Arbitration in Indonesia and South-East Asia. Research Handbook on Intellectual Property Rights and Arbitration. Elgar Online Publisher; Wiranata, I.J., et al. (2020). Lampung Province e-Commerce Potential in Facing IMT-GT 2020. Prosiding The 1st IC-ASEAN; Zufikri, Z. (2022). Legal Protection of Intellectual Property Rights: What is Urgency for the Business World? Jurnal IUS: Kajian Hukum dan Keadilan 10 (1). DOI: <http://dx.doi.org/10.29303/ius.v10i1.940>. Legal Acts: Indonesian Industrial Design Law final draft bill in 2015 version; Law Number 31 of 2000 concerning Industrial Design; Marrakesh Agreement Establishing the World Trade Organization, 15.04.1994, 1867 U.N.T.S. 154; TRIPs: Agreement on Trade-Related Aspects of Intellectual Property Rights, 15.04.1994. Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) (hereinafter TRIPs Agreement); Vienna Convention on the Law of Treaties 1969. Footnotes [1] Dayang-Affizah, A. M. (2016). Convergence Behaviour of Growth Triangle: The Case of IMT-GT. Business and Economic Journal 7 (2), pp. 1-6. DOI: <https://doi.org/10.4172/2151-6219.1000205>. [2] Sudirman, A., et al. (2023). Kerjasama Indonesia Malaysia Thailand Growth Triangle dalam Upaya Pemulihan Ekonomi Pasca Pandemi Covid-19. Governance 10 (2), pp. 51-57. DOI: <https://doi.org/10.56015/gjikplp.v10i2.120>. [3] Smith, R.B., et al (2023). Impact of Plurilateral Free Trade Agreements on Innovation: Example of ASEAN. Journal of ASEAN Studies 11 (1), pp. 87-110. DOI: <https:/doi.org/10.21512/jas.v11i1.7975>. [4] Andersson, D.E., et al. (2023). Industrial Design Rights and The Market Value of Firms. Technological Forecasting and Social Change 196 (5), pp. 1-14, DOI: <https://doi.org/10.1016/j.techfore.2023.122827>. [5] Zufikri, Z. (2022). Legal Protection of Intellectual Property Rights: What is Urgency for the Business World? Jurnal IUS: Kajian Hukum dan Keadilan 10 (1), pp. 12-25. DOI: <http://dx.doi.org/10.29303/ius.v10i1.940>. [6] Martinez, I., Chelala, S. (2021). Trade Agreements and International Technology Transfer. Review of World Economics 157, pp. 631-665, DOI: <https://doi.org/10.1007/s10290-021-00420-7>. [7] Vienna Convention on the Law of Treaties, 1969, Article 2 (b). U.N.T.S., vol. 1155, p. 331 (hereinafter VCLT). [8] Nabila, D.D., Sanusi, S. (2023). Protection for Registered Trademark Under Indonesian Law and the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). Student Journal of International Law 3 (2), pp. 132-147. DOI: <https://doi.org/10.24815/sjil.v3i2.24121>. [9] Martínez-Zarzoso, I., Chelala, S. (2021). Trade Agreements and International Technology Transfer. Review of World Economics 157, pp. 631-665. DOI: <https://doi.org/10.1007/s10290-021-00420-7>. [10] Pop, C.D. (2023). Treaty Ratification Law - Empirical Study on the Temporal Efficacy of the Parliamentary Procedure. STUDIA 68 (1), pp. 13- 42. DOI: <https://doi.org/10.24193/SUBBiur.68(2023).1.1>. [11] Tandungan, E.S., et al. (2021). The Legal Provisions of Indonesia Law System on International Agreements. Prosiding The 1st WICSTH, pp. 403-411. [12] Geofrey, M.J.C., Roisah, K. (2020). Patenting Deal in Indonesia: Article 20 of the Patent Law in the Political Perspective of International Trade Law. Law Reform 16 (1), pp. 19-31. DOI: <https://doi.org/10.14710/lr.v16i1.30302>. [13] Astariyani, N.L.G., et al. (2023). Preventive and Evaluative Mechanism Analysis on Regulatory and Legislation Reform in Indonesia. Law Reform 19 (2), pp. 248-269. [14] VCLT, Article 2 (d). [15] Doshi, N.R. (2021). The Law of Treaties with Special Focus on Evolutionary Interpretation of the Treaties. International Journal of Law Management & Humanities 4 (3), pp.2696 - 2608. DOI: <https://doij.org/10.10000/IJLMH.11741>. [16] Marrakesh Agreement Establishing the World Trade Organization, 15.04.1994, 1867 U.N.T.S. 154 (hereinafter Marrakesh Agreement). [17] TRIPs: Agreement on Trade-Related Aspects of Intellectual Property Rights, 15.04.1994. Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994) (hereinafter TRIPs Agreement). [18] TRIPs Agreement, Article 25 (1). [19] Ibid, Article 25 (2). [20] Ibid, Article 26 (2). [21] Ibid, Article 26 (1), Article 26 (3). [22] Ibid, Article 72. [23] Law Number 31 of 2000 concerning Industrial Design, Article 3. (hereinafter Law 31/2000). [24] TRIPs Agreement, Article 25. [25] Sulistianingsih, D., Ilyasa, R.M.A. (2022). The Impact of TRIPS Agreement on the Development of Intellectual Property Laws in Indonesia. Indonesia Private Law 3 (2), pp.77-88. DOI: <https://doi:10.2504/iplr.v3i2.2579>. [26] Law 31/2000 in Article 1 constitutes the definition of industrial design and its protection; Article 9 determines the ten-year validity of the protection, Article 6 concerns the prohibition of the unauthorized use, reproduction, or distribution of the design. [27] Law 31/2000, Article 3. [28] Jueptner, E. (2020). The Hague Jurisdiction Project - what Options for the Hague Conference? Journal of Private International Law 16 (2), pp. 247-274. DOI: <https://doi.org/10.1080/17441048.2020.1766220>. [29] Hartoyo, B., Noor, M.F. (2019). The Hague Convention 1961: Solution of Foreign Public Document Legalization for Indonesia and ASEAN Member Countries. ABC Research Alert 7 (1), pp. 37-47. DOI: <https://doi.org/10.18034/ra.v7i1.249>. [30] Indonesian Industrial Design Law final draft bill, 2015 version, p. 144. [31] Jorgenson, L., Fink, C. (2023). WIPO’s Contributions to International Cooperation on Intellectual Property. Journal of International Economy Law 26 (1), pp. 30-34. DOI: <https://doi.org/10.1093/jiel/jgac049>. [32] Nishitani, Y. (2023). Challenges of Private International Law in Asia. The Korean Journal of International and Comparative Law 12 (1), pp. 23-56. DOI: <https://10.1163/22134484-12340186>. [33] Kibtiah, T.M., Assegaf, S.N.Z. (2024). Recovery of the ASEAN Economy Through a Sustainable Tourism Sector in the Post-Covid-19. Thammasat Review 27 (2), pp. 167-196. DOI: <https://10.14456/tureview.2024.21>. [34] Soraya, J., Althafzufar., M.A. (2024). Intellectual Property Rights Protection for Actors in the Creative Economy Based on Intellectual Property Rights Law Number 28 of 2014 Concerning Copyright. Realism: Law Review 2 (1), pp. 39-53. [35] Brand, R.A. (2020). Jurisdiction and Judgments Recognition at the Hague Conference: Choices Made, Treaties Completed, and the Path Ahead, Netherlands International Law Review 67, pp. 3-17. DOI: <https://doi.org/10.1007/s40802-020-00152-9>. [36] Heikkila, J.T.S., Peltoniemi, M. (2023). The Changing Work of IPR Attorneys: 30 Years of Institutional Transitions. Technological Forecasting and Social Change 197, pp. 1-23. DOI: <https://doi.org/10.1016/j.techfore.2023.122853>. [37] Industrial Design Law, Article 25. [38] Wahyuningtyas, S.Y., Giovannus, D. (2024). Chapter 22: IPRs Arbitration in Indonesia and South-East Asia. Research Handbook on Intellectual Property Rights and Arbitration. Elgar Online Publisher, pp. 419-439. [39] Othman, E., et al. (2021). Malaysia: Malaysian Perspectives on the Hague Principles, Oxford International Law Series, p. 598. [40] Baimurratov, M., et al. (2024). Research on the Impact of International Agreements and Standards on National Legal Systems and Legal Order. Amazonia Investiga 13 (74), pp. 90-102. DOI: <https://doi.org/10.34069/AI/2024.74.02.8>. [41] Nurdin, M., et al. (2022). Urbanizing the Regional Sector to Strengthen Economy and Business to Recover from Recession (1st edition), Routledge Publisher, p. 7. [42] Wiranata, I.J., et al. (2020). Lampung Province e-Commerce Potential in Facing IMT-GT 2020. Prosiding The 1st IC-ASEAN, p. 327. [43] Chandra, R., et al. (2024). Halal Industry Development in Indonesia - Malaysia - Thailand Growth Triangle (IMT-GT): An Analysis of Islamic Diplomacy in Enhancing Regional Cooperation and Economic Development, Iconities 2, pp. 234-249. [44] Haas, M., (2022). Building Growth Areas in Asia for Development and Peace. Jadavpur Journal of International Relations 26 (1), pp. 7-42. DOI: <https://doi.org/10.1177/09735984221081559>.
Dark Legacy of Zero Tolerance in Georgia (Criminal Punishment and Sentencing)
Following much-praised promises to reduce crime to zero Georgian Government in 2004 imposed a “zero tolerance” policy embodied in both criminal legislation and legal practice. The fateful phrase “No probation! Everybody to the prison!” explicitly indicated the way of thinking of government officials at that time. This, of course, primarily affected regulations on criminal punishment and sentencing. Unfortunately, the principle of proportionality was largely disregarded, and the goals of punishment were narrowed. In 2012, the new government faced all the consequences of such a one-sided approach – overcrowded prisons, massive human rights violations, etc. As expected, the policy was largely revised. Some radical regulations were repealed. For example, a judge was allowed to use absorption or partial addition of punishment when imposing a sentence in the case of cumulative crimes and cumulative sentences. Sadly, many instances of punishment, such as conditional sentence, imposing more lenient sentences than provided for by law, etc., remain unchanged, presenting the dark legacy of zero tolerance policy. Keywords: Punishment, sentencing, proportionality, zero tolerance. Introduction It is fair to say that Georgian criminal law has seen good, bad, and ugly for the last hundred years. The first two decades (1921-1941) of soviet occupation can safely be defined as the dark age. Both criminal legislature and justice system were oriented to simply punish as many people as possible and as severely as possible, ignoring even the nullum crimen sine lege principle. It is not surprising that such repressions in the 1920s and 1930s left a bleeding wound on both the state and society. Nevertheless, from the late 1950s, Georgian legal scholars once again aimed to implement a more elaborate approach. Namely, the principle of proportionality of criminal liability and punishment was reintroduced in and implemented in the Criminal Code of Georgia of 1960. After Georgia regained its independence, the new Criminal Code of 1999 became even more based on proportionate punishment. This consistency was broken in 2004 when the new government declared a “zero tolerance” policy. Step by step Criminal Code was amended to make punishment more and more severe, even when it was not necessary. The judge was left with fewer and fewer freedom in terms of sentencing. While some short-term gains were achieved, overcrowded prisons and massive human rights violations became more than apparent. Overall, things were so bad that in 2012, the newly elected parliament was faced with the need to pass a sweeping amnesty and simultaneously revise the Criminal Code. Since then, many radical regulations have been revised. The purpose of this article is to clarify whether Georgia has finally overcome this issue or still has to deal with the dark legacy of zero tolerance. Since between 2004 and 2012 Criminal Code of Georgia was amended 93 times, this article cannot cover all of the amendments. Instead, it is primarily focused on the most important general provisions of punishment and sentencing since these are the ones that have the greatest impact on the outcome. Methodological Base Criminal punishment has come a long and thrilling way in evolution from simple revenge to a modern, elaborate concept.[1] The most ancient idea behind punishing someone was built around the offender him/herself. On the other hand, the modern concept is much more mature and targets the entire society. Moreover, it sets specific goals for punishment that need to be achieved. Generally speaking, these are retribution and crime prevention. More specifically, they are divided into several sub-goals, but eventually they all aim to bring two things into society: justice and social good. They are recognized not only by the overwhelming majority of legal scholars but are also directly prescribed in the law. Namely, §1 of Article 39 of the Criminal Code of Georgia indicates that: “The goal of a sentence is to restore justice, prevent repeated commission of a crime and re-socialize the offender”. Since these goals are set, every decision regarding punishment and sentencing should be focused on achieving those goals. Respectively, any idea or concept around punishment and sentencing can be and should be analyzed through the prism of retribution and crime prevention. If the idea itself initially contradicts these goals, it is not surprising that the result may seem unsatisfactory. On the other hand, if an idea is more likely to assist in achieving these goals, it is more likely to be acceptable. Since the present article primarily focuses on issues of punishment and sentencing, it would be simply a shame to ignore these very goals. Since ancient times until quite recently, revenge on the offender has been the main idea of criminal punishment. According to theories of Kant and Hegel, punishment should compensate for the criminal’s culpa. Punishment should serve fairness instead of social good.[2] These are often referred to as absolute theories. Kant and Hegel claim that criminal conduct breaches the law; therefore, punishment must be, first and foremost be perceived as a just retaliation for it. Things like social good or expediency of punishment are completely rejected, and the issue is solved purely based on morality. Being immoral, the criminal opposes his will to the law. Therefore, through his action law becomes breached. Consequently, punishment is the means of restoration of what he/she has breached. Hegel rejects the concept of the deterrence effect of punishment combined with the goal of re-education. He argues that since man has free will, the threat of punishment and the attempt to re-socialize him/her would mean reducing him/her to the level of an animal. Kant directly refers to the Talion principle − “An eye for an eye” – and argues that a criminal must be punished since he/she deserves punishment due to what he/she has committed.[3] Sometimes, absolute theories are named theories of retribution. Utter denial of utilitarian ideas brings the offender to the punishment which he/she simply deserves for what he/she has done, and no one cares whether it is socially expedient or not.[4] In this regard, absolute theories are oriented towards the past.[5] Despite their popularity among the people, absolute theories met resistance from some scholars. Beccaria claimed that criminal sentencing based purely on retribution is wrong. He pointed out that punishment must have an exact proportion to the magnitude of the evil that the criminal has committed, make the strongest and most lasting impression on the mind, but be the least painful to the sensibilities of the unfortunate.[6] The evolution of legal science and consistent retreat from pure retribution made possible the invention of more socially oriented theories commonly known as relative theories. These were based on the idea of expediency instead of morality.[7] Revenge was largely disregarded. Instead, social benefit was considered the main goal, and it was to be achieved through the prevention of crime.[8] In that regard, relative theories became oriented towards the future.[9] Furthermore, two main types of crime prevention were developed. The first type of prevention developed by List is specifically oriented towards the offender. Therefore, it is commonly known as the concept of special prevention. There are two subtypes of special prevention. Negative special prevention aims to isolate the most dangerous criminals from society and thus protect it.[10] Positive special prevention intents to influence the offender in the right way to prevent him/her from committing another offence in the future.[11] This theory has been much hailed and greatly contributed to the introduction of such important provisions as alternative measures to criminal punishment, parole, etc.[12] The other type of crime prevention is oriented towards the entire society. It is commonly known as general prevention and was developed by Feuerbach. The main priority here is to influence and deter those individuals who are thinking about committing a crime but have not developed an intent yet. Deterrence is to be achieved through a threat of punishment. Simultaneously, general deterrence is reinforced by sentencing an actual offender. Hesitant individuals should take it as an example and give up criminal thoughts for good. This subtype of general prevention is often referred to as negative general prevention.[13] On the other hand, positive general prevention aims to win the hearts and minds of citizens instead of deterring them. Once an actual offender is sentenced, it instills confidence among citizens, building trust in the integrity and effectiveness of law enforcement in society.[14] All these theories have been criticized over and over again.[15] The biggest problem was that each of them concentrated on a particular issue and failed to grasp the subject entirely. Finally, the goals of punishment were systematized as non-utilitarian and utilitarian goals.[16] Based on this system, new unified theories of punishment were developed. Instead of focusing exclusively on one goal, they managed to collect all the good theses put forward by absolute and relative theories. Hence, both non-utilitarian and utilitarian goals are acknowledged at the same time. Adepts of unified theories think that none of the goals guarantees the necessary result on its own. Indeed, instead of picking one, it is possible to combine the best thesis of all three into one unified theory.[17] Of course, it was not done overnight. It took time and effort.[18] It was indeed uneasy since, at first glance, non-utilitarian and utilitarian goals of punishment contradict each other.[19] The state must punish the offender and take revenge on him/her because it is fair and he/she deserves it. At the same time, the state should take care of the criminal, mitigate the punishment if possible, and create a chance for rehabilitation. Despite seeming contradiction, these goals create dialectical unity and complement each other. As Hälschner once noticed, although punishment must serve a multitude of goals, its nature is not determined by one or another of them, not even the majority of them. It is determined by only the absolute goal – justice, since it is truly fair and automatically serves all the relative goals.[20] Since clarity on methodological basis has been achieved, it is time to analyze specific amendments on punishment and sentencing made to the Criminal Code of Georgia and understand to what extent they contribute to achieving the goals of punishment. Regulations on Punishment and Sentencing First of all, it should be noted that these elaborate goals of punishment do not make a judge’s life easier. They require strict adherence to the principle of proportionality of punishment. For some people, proportionality itself seems unattainable. The judge must take into account all important mitigating and aggravating circumstances of the criminal case and impose a proportional sentence. Of course, the task becomes even more difficult when one realizes that he/she needs to achieve proportionality essentially across all five sub-goals of punishment at the same time.[21] The significance of proportionality of punishment is dictated by the goals of punishment themselves. It is not even so much about the contradiction between non-utilitarian and utilitarian goals. It’s about different approaches that these goals require and also about the balance between them. Retribution is about strictness to the criminal. It is about punishing the criminal as he/she deserves due to the seriousness of the crime he/she committed. Therefore, if the sentence is not severe enough, retribution may not occur. On the other hand, positive special prevention is more about perception and even compassion for the criminal to clear his way back into society. It’s about imposing a sentence that is enough for the re-socialization of the offender. Therefore, if the sentence is too harsh, it may be counterproductive and further alienate the offender from a law-abiding society. Based on the above, the sentence must not be too lenient and not too severe. It must be proportionate. Yes, not all five goals have the same weight all the time. Sometimes one of them can become more important than the others. For example, in cases of juvenile offenders, retribution is completely rejected while crime prevention, especially positive special prevention, is a full priority. What if a criminal deserves five years of imprisonment due to the seriousness of the crime he/she committed, but at the same time, three years of imprisonment are enough for him/her to re-socialize? In this case, the judge him/herself must choose which goal is more important – retribution or special crime prevention, and carefully tip the scales in favor of one of them. Anyway, it is extremely important to keep in mind the significance of proportionality and balance between strictness and leniency. Despite all these difficulties intention of Georgian lawmakers in 1999 on this matter was pretty apparent. Firstly, Article 40 of the original Criminal Code of Georgia of 1999 provided for as many as ten types of punishment. Such diversity certainly contributed to better individualization of punishment, thereby achieving proportionality. Article 41 provided basic and supplementary punishments, making sentencing even more flexible. §3 Article 53 obliged the judge to take into account specific mitigating and aggravating circumstances such as the motive and goal of the crime, the unlawful intent demonstrated in the act, the character and degree of the breach of obligations, etc. However, amendments made since 2004 paint a completely different picture. Imposing a Sentence in the Case of Cumulative Crimes and Cumulative Sentences Article 59 of the Criminal Code of Georgia, adopted in 1999, contained three options for punishing a cumulative of crimes: absorption, partial addition, and full addition (cumulative punishment). In case of two or more less serious[22] offences, more severe punishment would absorb the less serious punishment(s). This provision was amended in 2000 so that partial and full addition of punishment was also allowed. At the same time final sentence could not have exceeded 5 years.[23] In case of two or more serious or particularly serious crimes, the punishments imposed for each crime individually would have been partially or fully added up. Plus, the term of imprisonment imposed as a final sentence could not have exceeded 25 years. In case of less serious and serious crime or less serious and particularly serious crime, absorption as well as partial addition and full addition were allowed. Plus, the term of imprisonment imposed as a final sentence could not have exceeded 20 years. At first glance, these provisions were indeed intended to promote the goals of punishment. It would allow the judge to consider all the mitigating and aggravating circumstances of the case and impose a proportional sentence.[24] In 2006 Parliament of Georgia adopted an amendment to Article 59. According to the new regulation, in case of cumulative crimes, the punishment had to be imposed for every crime individually and then added up (aggregate sentence). Hence, neither absorption nor even partial addition was available to the judge anymore. At the same time, Article 50 of the Criminal Code of Georgia was also amended, and the possible term of imprisonment imposed as a final sentence was increased from 20 to 30 years.[25] As mentioned above, in 2012 newly elected Parliament of Georgia faced the necessity to declare an amnesty for a vast number of prisoners.[26] Parliament also had to rethink the approach to the subject of imposing sentences in cases of cumulative crimes.[27] New law allowed judges much more freedom. According to the new law, in every case except for recidivism more severe sentence shall absorb a less severe sentence. In case of recidivism,[28] when imposing a final sentence for cumulative crimes, a more severe sentence shall absorb a less severe sentence or the sentences provided for these crimes shall be added up in part or in full. In the case of recidivism, the term of imprisonment imposed as a final sentence may not exceed 30 years. From the perspective of retribution, this 2013 change makes things significantly better. As mentioned above, retribution is about punishing the offender for what he/she has committed. e/she gets punished because he/she deserved it. So instead of simply adding up the sentences for individual crimes, it’s better to think about how severe the punishment the criminal deserves. For example, one individual has committed theft by illegal entry into a dwelling place three times. Each time he/she stole 200 GEL (68 EUR), overall 600 GEL. This criminal would face 4 to 7 years of imprisonment for each offence. If there were only full addition available, he/she would face 12 to 21 years of imprisonment. At the same time, another person who committed homicide (intentional killing) would face 7 to 15 years. Does this thief who stole 600 GEL deserve more severe punishment than a murderer? Well, maybe… maybe not. At least a judge should have the right to answer this question, and if the answer is “no”, he/she should be able to apply absorption. Although there is also a significant risk of unfairness. Since the judge can’t apply partial or full addition unless there is recidivism, some people may receive undeserved leniency. If an offender has committed a series of crimes, for example, 15 episodes of fraud. If this criminal doesn’t have recidivism, he/she will face only absorption as if he/she had committed only one episode. In terms of special prevention, the current regulation is even more significant. It allows the judge to properly individualize the sentence, thus supporting the proportionality of punishment and greatly supporting the re-socialization of the offender. Although recidivism should not be a prerequisite for at least partial addiction, as discussed earlier. Some criminals may need partial addition of sentences to properly re-socialize.[29] As for the general prevention, the current approach has slight problems. Since general prevention relies largely on the threat of punishment, i.e., the deterrence effect, using absorption instead of partial or total addition may not always be effective. For example, an offender has committed a series of crimes, 15 episodes of fraud, and gets punishment only for one. Such a sentence will not have a deterrence effect on the members of society who think about committing a crime. For most of them, this will be a signal of the possibility of evading responsibility. Thus, the judge should have the right to apply at least partial addition even in cases where there is no recidivism, but there is a need to impose a more severe punishment for general prevention. In general, recidivism is not always a good prerequisite for partial or full addiction. The original (1999) regulation was better than the current (2013) regulation in terms of both specific and general prevention, as it allowed for a more sophisticated approach instead of simply setting a single precondition, such as recidivism. Overall, it is fair to say that the current revised (2013) provisions on imposing a sentence in the case of cumulative crimes and cumulative sentences are much more focused on the goals of punishment. At least the overt radicalism that characterized the zero-tolerance policy is no more. At the same time, undoubtedly, a more detailed differentiation is needed to prevent unjust sentences in the future. Imposing a More Lenient Sentence than Provided for by Law The original 1999 Criminal Code of Georgia introduced a mechanism allowing a judge to impose a more lenient sentence than provided by law if there was a particularly mitigating circumstance in the criminal case.[30] The judge should also have taken into account the personality of the offender him/herself. This provision was consistent with the legislative intent present in 1999. As mentioned above, the goals of punishment require strict adherence to the principle of proportionality. This is usually achieved by individualization of punishment. The judge weighs all the mitigating and aggravating circumstances present in an individual criminal case and imposes the most proportionate punishment. But a judge can’t be given absolute power. The measure or term of punishment can’t be fully dependent on the judge’s opinion. To prevent legal voluntarism, legislator implements the principle of differentiation of criminal liability and punishment. In the special part of the Criminal Code, offences are differentiated from each other. For example, a theft i.e. secretly taking another person’s movable property for its unlawful appropriation[31] is to be punished by imprisonment for a term of one to three years; The same act committed by illegally entering a building or other storage facility[32] is to be punished by imprisonment for a term of three to five years; The same act committed with a preliminary agreement by a group[33] is to be punished by imprisonment for a term of four to seven years; The same act committed by an organized group[34] is to be punished by imprisonment for a term of six to ten years. Specific offences are differentiated due to the level of social danger that they pose. Each of them gets their minimum and maximum term of punishment. For example, an individual is found guilty of theft committed by illegally entering a building or other storage facility. Accordingly, he/she faces three to five years of imprisonment. This is due to the fact that the act he/she committed represents such a degree of public danger that the punishment should be at least three years of imprisonment to be proportional. This perfectly aligns with the goal of retribution. But what if things are not that simple? What if there are one or more particularly mitigating circumstances? What if the judge considers that one year of imprisonment will be perfectly enough for his resocialization, i.e., positive special prevention of crime? In that case following two years will most likely be counterproductive. For this very reason, Article 55 was introduced as an exceptional provision into the Criminal Code of Georgia. The judge had the right to punish the minimum limit of punishment provided for by a specific article for a specific crime (the so-called “below the minimum”) or another, more lenient punishment. In above mentioned case, the judge could impose one year of imprisonment that would be proportional to the goal of positive special prevention. Of course, one may argue that a “below the minimum” sentence may be harmful for retribution and general prevention of crime. Indeed, this provision contains a significant compromise. Of course, the criminal may not get what he/she deserve, and the deterrent effect may be reduced as well. However, it should be remembered that a punishment “below the minimum” is more of an exception than a daily norm. The judge should apply it only when he/she is certain that its application will do more good than harm. Moreover, when used correctly, “below the minimum” punishment can assist positive general prevention, showing that the state not only punishes but also sometimes shows mercy to people who have made mistakes and deserve a second chance. Three main amendments have been made to Article 55. The first one was made in 2004.[35] This amendment expanded the grounds for application of Article 55. The judge retained the right to impose a sentence “below the minimum” if there were particularly mitigating circumstances. However, he/she also became obliged to impose a sentence of no more than half of the maximum term if the prosecutor presented a plea agreement signed between the parties. Of course, “no more than half of the maximum” and “below the minimum” are not the same. They are quite different. Therefore, it is not entirely clear why such a provision was added to Article 55. The second amendment (addition) was added in 2005.[36] Judge also became obliged to impose a sentence of no more than two-thirds of the maximum term if the defendant voluntarily admitted his guilt and his confession was not in doubt. Again, “no more than two-thirds of the maximum” and “below the minimum” are very different. Thus, it is clear that the First and Second Amendments somehow missed the base idea of Section 55. The third and final amendment was made in 2006,[37], and it is fair to say that it did not miss the base idea. It destroyed it. From now on, the judge may impose a sentence “below the minimum”, or another more lenient sentence, only in case if a plea bargain is concluded between the parties. This was the prime symptom of the zero-tolerance policy. The accused was robbed of a chance to get a sentence “below the minimum” unless he/she pleaded guilty or/and signed a plea bargain with the prosecutor. The entire concept behind Article 55 suddenly disappeared. What about a particularly mitigating circumstance? It didn’t matter anymore. What about proportional punishment? The judge was robbed of a mechanism that was necessary for it. Positive special prevention of punishment? It was no longer considered too important. Unfortunately, the provision provided in 2006 remains in force to this very day. Conditional Sentence Unfortunately, a similar story happened with a conditional (suspended) sentence. As mentioned earlier, the concept of a conditional sentence largely follows the concept of special prevention. The original (1999) Criminal Code of Georgia, namely §1 of Article 63, indicated that a suspended sentence could be imposed if the judge decided that it was possible for the offender to re-socialize without actually serving the sentence. This is perfectly aligned with positive special prevention. For example, a person was found guilty of theft (§1, Article 177). He/she faces imprisonment for a term of one to three years. In terms of retribution, it is fine to send this person to prison for at least one year. Such punishment will be perfectly proportionate to the goal of retribution. General crime prevention will also be effective since the deterrence effect will be present as well. However, from the point of view of positive special prevention, there may be other opinions. The judge may consider the mitigating circumstances of the case and conclude that the offender would most likely be re-socialized if not sent to prison at all. This means that no prison sentence will be proportionate to the goal of positive special prevention. This usually applies to individuals who have no previous criminal record, who cooperate, did not have an inherent criminal intent, but were rather pushed by circumstances, etc. Such people usually deserve the opportunity to re-socialize without going to prison. Moreover, the penitentiary system is imperfect and does not always provide the necessary means for resocialization, especially for those entering prison for the first time. If such people end up in prison, they risk becoming involved in a criminal subculture, which will make their resocialization even more difficult. Therefore, having carefully weighed all the pros and cons, the judge may tip the scales in favor of positive special prevention and impose a suspended sentence. In 2006, a major amendment was made to Article 63.[38] Just like the “below the minimum” sentence, a plea agreement signed by the parties became a necessary precondition for a suspended sentence. On the one hand, the judge is still obliged to impose a proportional sentence. But what if he/she considers that any prison sentence will be disproportional to one or more goals of punishment? If there is no plea agreement signed, he/she is simply powerless because he/she has been deprived of the necessary right to impose a suspended sentence.[39] Once again, principles of individualization of punishment and proportionality of punishment were disregarded. Positive special prevention of punishment was again not considered important. Furthermore, it must be noted that during the “zero tolerance” period, it was common practice to force the accused to sign a plea bargain. More often than not plea bargain would include a large sum of money to be paid as a fine. This was almost exclusively a prerequisite for a more lenient punishment. People paid money to spend fewer years in prison. No surprise that both suspended sentence and “below the minimum” sentence were a fine object for such “trades”. Having no other choice, people simply bought them with money. Most likely, this was precisely the original purpose of the amendments discussed above. Unfortunately, both these provisions remain in force to this very day. Conclusion Having carefully analyzed the process of revising the legislation in the area of ​​punishment and sentencing, it is fair to note that some radical provisions adopted during the period of zero tolerance in Georgia have indeed been revised. For example, the judge was given back his right to apply absorption, partial addition, or full addition in case of cumulative crimes or cumulative sentences. This is a significant step in terms of the proper individualization of punishment. This, therefore, increases the likelihood of a proportionate sentence being handed down. Overall, the current approach, although in need of some improvement, does contribute to achieving the goals of punishment. Unfortunately, the same cannot be stated about suspended sentence and so-called “below the minimum” sentence. In both cases, the judge is deprived of the necessary right to properly individualize the sentence. He/she still must impose proportionate punishment, but cannot use the tools necessary to do so. This is especially true for a suspended sentence. Many first-time offenders should be given suspended sentences to assist their re-socialization. But such an opportunity is only limited to those who sign a plea agreement with the prosecutor. Undoubtedly, such a limitation makes achieving the goals of punishment more difficult. Moreover, since a general course for revising such issues was announced, these provisions should have been among the first to be revised. Sadly, the problem remains unsolved to this day, resembling the dark legacy of “zero tolerance”. Bibliography Scientific literature: Abegg, J. F. (1969). The Various Criminal Law Theories in Their Relationship to One Another and to Positive Law and Its History. First Part. Philosophical-historical Development of the Concept of Crime and Punishment. Frankfurt/Main: Verlag Sauer & Auvermann KG (In German); Beccaria, C. (1764). On Crimes and Punishments. Translated From Italian. Breslau (In German); Dvalidze, I. (2013). General Part of Criminal Law. Punishment and Other Legal Consequences of Crime. Tbilisi: Meridiani (In Georgian); Feuerbach, P.J.A.R. (1798). Is Protection from Crime the Purpose of Punishment and is Criminal Law the Law of Prevention. Library for Penal Jurisprudence and Legal Studies. (In German); Goh, J. (2013). Proportionality – An Unattainable Ideal in the Criminal Justice System. University of Manchester Student Law Review. Volume II (In English); Grolman, K. (1968). On the Grounds of Criminal Law and Criminal Legislation. Frankfurt am Main: Verlag Sauer & Auvermann KG (In German); Guruli, P. (2018). The Judge and Individualization of Punishment (Contradiction Between the Goal and the Mean). Law and the World, Vol. 4 №10 (In Georgian); Hälschner, H. (1858). The Prussian Criminal Law System – Second Part of Prussian Criminal Law or General Part of the System. Bonn (In German); Köstlin, C.R. (1978). System of German Criminal Law. General Part. First Part. Reprint of the Edition. Tübingen: Scientia Verlag Aalen (In German); Liszt, F. (1905). Criminal Law Essays and Lectures. The Idea of Purpose in Criminal Law. First Volume. Berlin: J.Guttentag Verlagsbuchhandlung G.m.b.H. (In German); Nachkebia, G., Todua, N. (eds.). (2024). Criminal Law (Textbook). General Part. Third Edition. Tbilisi: Meridiani (In Georgian); Roxin/Arzt/Tiedemann. (2013). Introduction to Criminal Law and Criminal Procedure Law. 6th Müller, C. F. (In German); Tskitishvili, T. (2019). Punishment and Sentencing. Tbilisi: Meridiani (In Georgian); Turava, M. (2013). Criminal Law. General Part. Concept of Crime. Tbilisi: Meridiani (In Georgian); Vacheishvili, A. (1960). Punishment and Means of Social Protection. Tbilisi: Stalin Tbilisi State University Publishing House (In Georgian); Von Bar, C.L. (1882). Handbook of German Criminal Law. First Volume. History of German Criminal Law and Criminal Law Theories. Berlin: Weidmannsche Buchhandlung, §. 95 (In German). Legal Acts: Criminal Code of Georgia. Date of passing: 13.08.1999. Document number: 2287; Law of Georgia on Amendments and Additions to Criminal Code of Georgia. Date of passing: 23.02.2010. Document number: 2644; Law of Georgia on Amendments and Additions to Criminal Code of Georgia. Date of passing: 29.12.2006. Document number: 4213.; Law of Georgia on Amendments and Additions to the Criminal Code of Georgia. Date of passing: 13.02.2004. Document number: 3295; Law of Georgia on Amendments and Additions to the Criminal Code of Georgia. Date of passing: 28.04.2006. Document number: 2937. Law of Georgia on Amendments to Criminal Code of Georgia. Date of passing: 17.04.2013. Document number: 546-IIS; Law of Georgia on Amendments to the Criminal Code of Georgia. Date of passing: 20.12.2005. Document number: 2352; Law of Georgia on Amnesty. Date of passing: 28.12.2012. Document number: 202-RS. Footnotes [1] see: Abegg, J. F. (1969). The Various Criminal Law Theories in Their Relationship to One Another and to Positive Law and Its History. First Part. Philosophical-historical Development of the Concept of Crime and Punishment. Frankfurt/Main: Verlag Sauer & Auvermann KG, pp.8-73 (In German). [2] see: Roxin/Arzt/Tiedemann. (2013). Introduction to Criminal Law and Criminal Procedure Law. 6th Edition. Müller, C. F., pp. 4-5 (In German). [3] see: Vacheishvili, A. (1960). Punishment and Means of Social Protection. Tbilisi: Stalin Tbilisi State University Publishing House, pp. 28-31 (In Georgian). [4] see: Dvalidze, I. (2013). General Part of Criminal Law. Punishment and Other Legal Consequences of Crime. Tbilisi: Meridiani, p. 18 (In Georgian). [5] Turava, M. (2013). Criminal Law. General Part. Concept of Crime. Tbilisi: Meridiani, p. 355 (In Georgian). [6] Beccaria, C. (1764). On Crimes and Punishments. Translated From Italian. Breslau, p. 67 (In German). [7] see: Vacheishvili, A. The work cited, p. 31. [8] Grolman, K. (1968). On the Grounds of Criminal Law and Criminal Legislation. Frankfurt am Main: Verlag Sauer & Auvermann KG, p. 56 (In German). [9] Turava, M. The work cited, p. 355. [10] Turava, M. The work cited, p. 355. [11] see: Liszt, F. (1905). Criminal Law Essays and Lectures. The Idea of Purpose in Criminal Law. First Volume. Berlin: J.Guttentag Verlagsbuchhandlung G.m.b.H., pp. 163-179 (In German). [12] Turava, M. The work cited, pp. 355-356. [13] see: Feuerbach, P.J.A.R. (1798). Is protection from crime the purpose of punishment and is criminal law the law of prevention. Library for penal jurisprudence and Legal Studies. (In German). [14] see.: Tskitishvili, T. (2019). Punishment and Sentencing. Tbilisi: Meridiani, pp. 31-32 (In Georgian). [15] see: Köstlin, C.R. (1978). System of German Criminal Law. General Part. First Part. Reprint of the Edition. Tübingen: Scientia Verlag Aalen, pp. 395-413 (In German). [16] Nachkebia, G., Todua, N. (eds.). (2024). Criminal Law (Textbook). General Part. Third Edition. Tbilisi: Meridiani, p. 596 (In Georgian). [17] see: Roxin/Arzt/Tiedemann. The Work cited, pp. 6-7. [18] see: Von Bar, C.L. (1882). Handbook of German Criminal Law. First Volume. History of German Criminal Law and Criminal Law Theories. Berlin: Weidmannsche Buchhandlung, §. 95, pp. 270-273 (In German). [19] Turava, M. The work cited, p. 356. [20] Hälschner, H. (1858). The Prussian Criminal Law System – Second Part of Prussian Criminal Law or General Part of the System. Bonn, p. 440 (In German). [21] Goh, J. (2013). Proportionality – An Unattainable Ideal in the Criminal Justice System. University of Manchester Student Law Review. volume II, p. 50 (In English). [22] Less serious − An intentional crime or a crime of negligence for the commission of which the maximum sentence provided for under this Code does not exceed 5 years of imprisonment; Serious − An intentional crime for the commission of which the maximum sentence provided for under this Code does not exceed 10 years of imprisonment, also a crime of negligence for the commission of which the maximum sentence under this Code exceed 5 years of imprisonment; Particularly serious − An intentional crime for the commission of which this Code provides for a sentence exceeding 10 years of imprisonment or life imprisonment; see: Article 12, Criminal Code of Georgia. [23] Law of Georgia on Amendments and Additions to Criminal Code of Georgia. Date of passing: 23.02.2010. Document number: 2644. [24] Guruli, P. (2018). The Judge and Individualization of Punishment (Contradiction Between the Goal and the Mean). Law and the World, Vol. 4 №10, pp. 161-172 (In Georgian). [25] Law of Georgia on Amendments and Additions to Criminal Code of Georgia. Date of passing: 29.12.2006. Document number: 4213. [26] Law of Georgia on Amnesty. Date of passing: 28.12.2012. Document number: 202-RS. [27] Law of Georgia on Amendments to Criminal Code of Georgia. Date of issuing:17.04.2013. Document number: 546-IIS. [28] “Recidivism shall mean the commission of an intentional crime by a person who has previously been convicted for an intentional crime”. see: Criminal Code of Georgia, §1, Article 17. [29] Guruli, P. (2023). Imposing a Sentence in Case of Cumulative Crimes (Legislative Tendencies in Georgia). Law and World, Vol. 9, №28, December, p. 185 (In Georgian). [30] Article 55, Criminal Code of Georgia. [31] Article 177, § 1 Criminal Code of Georgia. [32] Article 177, § 2(b) Criminal Code of Georgia. [33] Article 177, § 3(a) Criminal Code of Georgia. [34] Article 177, § 4(a) Criminal Code of Georgia. [35] Law of Georgia on Amendments and Additions to the Criminal Code of Georgia. Date of passing: 13.02.2004. Document number: 3295. [36] Law of Georgia on Amendments to the Criminal Code of Georgia. Date of passing: 20.12.2005. Document number: 2352. [37] Law of Georgia on Amendments and Additions to the Criminal Code of Georgia. Date of passing: 28.04.2006. Document number: 2937. [38] Law on Amendments and Additions to the Criminal Code of Georgia. Date of passing: 28.04.2006. Document number: 2937. [39] Guruli, P. (2018). The Judge and Individualization of Punishment, pp. 161-172.
Environmental, Social, and Governance as Sustainability Solution for Women’s Rights in West Africa
In the West African corporate sector, the engagement of Environmental, Social, and Governance (ESG) principles is becoming the trend and could be a transformative strategy for advancing women’s rights in West Africa. This paper examined the ESG framework as potential to act as a catalyst for sustainability especially in the context of gender equality in West Africa. By examining case studies, we show how ESG-focused policies can result in improved outcomes for women, including significant workplace equality, more representation in female leadership, and greater economic empowerment. Furthermore, we provided strategies for ESG principles in the context of West African legal structures. Our findings suggest that a primed ESG approach, tailored to the unique regional dynamics, can contribute significantly to the sustainable development goals (SDGs) and the empowerment of women in the corporate sector. This study provides actionable insights for policymakers, corporate leaders, and stakeholders aiming to leverage ESG for social change and gender parity in West Africa. Keywords: Sustainability, ESG, Women’s Rights, Corporate Sector, West Africa Introduction Ever since the introduction of the United Nations Sustainable Development Goals, the sustainability discourse has kept expanding into various spheres of social endeavors. From gender equality to poverty reduction, there have been attempts to create credible solutions to social problems in a way that would bring a better balance in social processes. Environmental, Social, and Governance (ESG) principles are concepts that are about consideration for the environment, social issues such as the rights and safety of workers and the community, and good management practices of the firm. The practice of ESG principles in firms, positions the corporate sector to be actively involved in the advancement of women’s rights. This is because ESG principles address factors that influence the realization of women’s rights such as climate change, workplace power dynamics, and community engagement. Cardoso et al. argue that companies with elevated ESG ratings show stronger performance in gender metrics and display increased transparency. This connection is especially noticeable among firms that excel in the social aspects of ESG assessment. However, Cardoso et al., noted that despite these firms being known for their commitment to sustainability, women still encounter obstacles such as underrepresentation and lower pay within these organizations.[1] They seemed to suggest that there is more to the realization of women’s rights at the workplace than the implementation of ESG principles. Even at the smaller business level, the exclusion of women can prove to be fatal as it was found that the failure to include women in succession planning was a prevalent cause for the lack of sustainability in family businesses.[2] Without a doubt, discrimination is a threat to the realization of human rights.[3] As it has been defined, gender inclusion involves incorporating women into the operations, management, and leadership roles within companies and organizations, with a particular emphasis on family businesses.[4] Gender inclusion would further mean dismantling stereotypes that restrict women and that often put them at risk in countries where they might be domiciled.[5] This gender inclusion is a particularly strong concept within the universalist conception of human rights, which Lalude has argued has a better operational value for the practice of human rights.[6] It has been found by Salazar and Moline, that a higher female representation in leadership roles is associated with the engagement of environmental, social, and governance (ESG) standards, resulting in better business outcomes and engendering inclusive economic advancement. Despite this, substantial gender inequality persists in corporate leadership. Worldwide, women occupy merely 19.7 percent of board seats, 6.7 percent of board chair positions, 5 percent of Chief Executive Officer roles, and 15.7 percent of Chief Financial Officer positions. Factors such as unconscious biases, cultural norms, limited opportunities, and various workforce obstacles were noted to potentially constrain women’s career ambitions and restrict their paths to leadership positions.[7] However any organization aims to ensure that it preserves itself.[8] The only way this can happen is to embrace ESG practices. ESG principles can transform the promotion of women’s rights because they heighten the consciousness of the firm to its social issues. Muñoz showed that black women faced entrenched obstacles stemming from both gender and racial discrimination, as well as the intersections of these identities, within the workplace. These barriers often hindered their ability to access leadership roles and resulted in unequal career progression. He further emphasized the critical need for tailored efforts in diversity, equity, inclusion, and belonging. These initiatives should include specific support measures like mentorship programs, flexible work options, and acknowledging the valuable contributions of transformational leadership demonstrated by black women.[9] Beyond this is the acknowledgment of how ESG principles can transform the perception of women in the workplace and beyond the workplace. The argument supporting gender equality is more compelling than ever, encompassing not just ethical principles but also investment and economic considerations. Nonetheless, advancements are sluggish and inconsistent, mirroring the gradual pace seen in addressing other types of inequality. This slow progress can be attributed to the entrenched resistance of the powerful elite, who seldom relinquish their positions without resistance. Nevertheless, this resistance is gradually proving futile in the long run.[10] The push for gender equality as one of the sustainable development goals and the promotion of women’s rights has consistently met with challenges, and these challenges are the usual suspects. Lack of political will and the non-prioritization by legislators of the need to protect women’s rights despite the urgent need for the protection of women’s rights in Africa are challenges that have greatly undermined the realization of women’s rights in the region. Unfortunately, while the realization of women’s rights would make for sustainable economies in West Africa, women have been left to the crushing weight of asymmetric power in the corporate sector. It is undeniable that Nigerian women face significant vulnerability, even though Nigeria has ratified various international standards that condemn gender discrimination and inequality. These standards include the Universal Declaration of Human Rights (UDHR), the International Convention on Economic, Social, and Cultural Rights (ICESCR), the International Convention on Civil and Political Rights (ICCPR), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), and the commitments made at the Fourth World Conference on Women in Beijing, China.[11] Even within the corporate sector, women in Nigeria have often faced discrimination and harassment. Adisa et al., have noted that Nigeria stands out for its pronounced bias towards males in the workplace, leading to significant career obstacles that highlight the deeply ingrained and systemic prevalence of male authority within Nigerian institutions. This phenomenon is expressed in the notion of the “hypermasculine organization”, which exhibits amplified male privilege, an affinity for gender-based exploitation and mistreatment, and a rationale rooted in strictly enforced gender norms. These hindrances experienced by women in organizational settings could hold significance for other nations in the global south.[12] Sexual harassment of women in Nigerian firms, which threatens women’s autonomy over their bodies is significant, and Akpambang has observed that the issue of workplace sexual harassment has garnered significant attention both domestically and internationally from researchers and organizations. Available data indicates that this reprehensible behavior occurs in both public and private settings and has substantial detrimental impacts on employers, as well as on the health and psychological well-being of employees. Akpambang found that, unlike certain other countries, Nigeria lacks specific legislation targeting sexual harassment, and the existing national legislative frameworks addressing sexual offenses are insufficient to effectively tackle the problem.[13] Furthermore, the marginalization of women in economic, social, and political realms is a global issue, but it is particularly severe in developing nations. In Nigeria, despite the ratification of the United Nations Convention on the Elimination of All Forms of Discrimination against Women in 1985 and the implementation of similar local policies like the National Gender Policy of 2006, inequality persists due to various cultural and structural barriers. These challenges have limited women’s involvement across all aspects of life, with significant repercussions for human resource development, economic progress, and the overall status of gender equality within the country.[14] In further examining the problem of marginalization of women in West Africa, Asiedu et al., have found that gender inequality was identified across various domains such as labor and industrialization, population dynamics and reproduction, agricultural output, water and sanitation, and energy provision, among others. Significant factors driving these inequalities include issues relating to access to social protection, economic opportunities, and legal rights. Also, obstacles to gender equality and sustainable development include unequal distribution of the burdens of poverty, educational differences, skill gaps, and entrenched gender stereotypes. Proposed solutions include empowering women, who constitute a significant portion of marginalized populations, by enhancing their development and ensuring equitable access to education and leadership roles. Addressing discriminatory cultural norms against women is also highlighted as crucial for progress.[15] One of the strategies that have rarely been examined in the promotion of women’s rights in West Africa, specifically Nigeria and Ghana is the implementation of environmental, social, and governance principles in firms in Nigerian where this could help in re-positioning a firm’s priorities especially as it concerns its internal engagement of its female workforce and in the communities where they operate. The question that is rarely asked further is the role of West African firms in promoting women’s rights. There is a consideration in many literatures on the role of women board members in the prioritization of ESG principles, but this hardly reflects the firm’s inclination to promote women’s rights. As it was noted by the Organisation for Economic Co-operation and Development female members of corporate boards consistently emphasize environmental, social, and governance concerns, which encompass issues related to climate change and sustainability.[16] ESG and the Right to Gender Equality and Non-Discrimination In the West African region, significant gender inequalities and discrimination remain prevalent. Women and girls face widespread disadvantages across various domains, lacking the opportunities afforded to men. This disparity is evident in nearly every public domain, including access to essential services such as healthcare, education, and utilities, as well as property rights and representation in the labor market and public arenas. While legal frameworks and policies addressing these issues are scarce, they do exist. Since the early 2000s, nearly all nations in West Africa have established national gender policies or strategies. Despite these efforts, gender considerations are often relegated to a secondary status, and the implementation of gender policies frequently lacks effectiveness.[17] In examining ESG principles as a catalyst for gender equality and the promotion of women’s rights, there is the necessity to see the West African firm as a starting point of reference and its transformative capacities when it engages ESG principles. Women’s rights, specifically the right to gender equality and non-discrimination have been undermined in West Africa, despite the political lip service that has been paid to the prioritization of these rights and the fact that countries like Nigeria and Ghana, where women are still experiencing marginalization, have signed and ratified the United Nations Convention on the Elimination of All Forms of Discrimination against Women 1979 (CERD). Article 11 of the Convention, provides that States Parties are obligated to implement all necessary actions to eradicate discrimination against women in employment, aiming to guarantee equal rights for men and women, especially in this regard.[18] However there is yet to be significant progress in the realization of this provision as it was found that in Nigeria gender equality policies in employment have not been effectively implemented, as women continue to experience marginalization both in the private and public sectors.[19] Ghana is no different as there has been the persistence of widespread gender inequality, leading to the ongoing marginalization of women across the social, economic, and political spheres.[20] Article 10(c) of the CERD provides that removing stereotypical ideas about the roles of men and women across all educational levels and formats, through promoting coeducation and other educational approaches. This includes revising textbooks and school curricula and adjusting teaching methods to support this goal. Gender inequality in Ghana is anchored on social perception, and social perception is driven by stereotypes drawn from cultural norms. These stereotypes pervade even workplace politics limiting opportunities for women in the corporate space and the community. Coleman argues that while the interest of foreign aid and human rights communities has borne the weight of promoting women’s empowerment in developing countries, firms have the financial capacity and the social influence to promote women’s rights.[21] Firms are in the position to ensure economic justice as they provide economic opportunities and can target women as economically and socially vulnerable groups in communities for empowerment. Lalude and Fatehinse have defined economic justice as a concept that entails the fair allocation of economic resources and goods.[22] For women in West Africa to benefit from ESG principles they must have economic justice as a realization from firms embracing ESG principles. Women empowerment is an essential objective of gender equality, and in the promotion of women’s rights, there must be a women empowerment agenda. ESG principles are standard for firms in the sustainable development era, and it is through ESG principles that firms can promote women’s rights meaningfully by prioritizing gender equality either within the firm or outside it. Women continue to face challenges in achieving equality and active involvement in West Africa. They frequently are confronted by inequality in healthcare, education, employment, and political entitlements, often receiving a smaller portion compared to men. Despite this, women contribute significantly to societal roles that are typically not undertaken by men. The obstacles encountered by women exist on personal, organizational, and cultural dimensions.[23] Through community engagement, firms can be involved in the realization of economic justice in the communities where they are situated. Community engagement could mean that firms could provide scholarships for the girl child, closing up the gender gaps in many West African communities. Supporting initiatives geared at promoting women in various industries in the community that they are located in. Firms could support women within their systems to reach management levels for the sustainable development of both the firm and the community. Furthermore, the inclusion of women in management positions demonstrates a beneficial influence on Corporate Social Responsibility (CSR) initiatives aimed at promoting gender equality.[24] However for the inclusion of women to be possible within the West African firm, ESG principles have to be incorporated into organizational processes. ESG principles could be made mandatory through regulatory frameworks as a national effort to push sustainability within the private sector and ensure that there is a contributory effort by the private sector in the promotion of women’s rights. ESG-Focused Policies and Improved Outcomes for Women in West Africa The literature on ESG principles often makes it appear that the concept of ESG has a greater purpose than the elements that it focuses on. They are mostly driven by the idea that gender equality could promote ESG practice amongst firms but do not reflect on the objectives of ESG practice. There is no doubt that ESG principles are beneficial to the promotion of women’s rights both within the firm and outside the firm. One of the major ways in which ESG principles can promote women’s rights is that the incentivization of ESG investing, which is the determination of a company’s sustainability by investors as profitable for investment, can inspire equal pay for women within the firm and an inclination for gender diversity on its board. However, ESG principles cannot by themself incentivize a firm to promote women’s rights but the leverage can be created by investors who insist on ESG investing. The macro implication is that regulators in West Africa are then motivated to ensure that firms comply with ESG principles to attract foreign investment and inadvertently boost sustainability practices that will benefit women. ESG principles give purpose and help in the clarification of a firm’s impact in the community where it is located. Apart from the incentive of investment, there is the sharpening of a firm’s interests when it engages ESG principles. For instance, ESG principles can help a firm have a good grasp of its intended impact in the community where it operates. Coleman asserts that some firms already support women’s rights in the developed world, taking that as a niche corporate social responsibility and creating a public image that supports sustainability.[25] In the context of states like Nigeria and Ghana, firms adopting women-centric values could help in the promotion of women’s rights and contribute to the efforts of non-governmental organizations and external political influence from developed countries. It is essential to think of what ESG-focused policies of firms would incline them to do in their engagement with host communities. Apart from the social focus of ESG principles, the environmental and corporate governance elements are beneficial to women’s rights in host communities. This is because women are heavily impacted by climate change.[26] The engagement of ESG-focused firms therefore would catalyze the advancement of women’s rights and would help address issues that affect women’s livelihoods and capacities in West Africa. Within the firm, ESG-focused policies can help a firm develop a positive attitude towards gender equality and can drive investor confidence. Publicly traded companies are experiencing mounting investor demands to enhance diversity within their board memberships, highlighting a significant recognition of the importance of addressing environmental, social, and governance (ESG) concerns. Investors are progressively using evaluations of companies’ gender diversity and inclusivity practices to measure their responsiveness to ESG-related risks and opportunities. These companies are encountering external pressures from institutional investors, activist shareholders, and potential employees and customers to increase the presence of women in boardrooms, C-suite positions, and throughout executive leadership roles, as well as to ensure equitable compensation and advancement opportunities for women and individuals from diverse racial backgrounds. Such pressures can significantly influence the extent and manner in which companies worldwide tackle issues related to diversity, inclusion, and gender disparity.[27] Case Studies on ESG-Focused Policies and Benefits for Women in West Africa Luh et al., have argued that in the consideration of the current business landscape, characterized by a strong focus on eco-friendly practices, socially responsible investment, and impact investment from diverse stakeholders, it becomes evident that banks in Ghana should prioritize enhancing the presence of women in leadership roles. This strategic move can positively influence the ESG performance of banks in Ghana, thereby bolstering their capacity to appeal to a wider range of investors.[28] This would mean that the consideration for the female workforce is incentivized by the focus on ESG principles and that firms are driven to ensure that their policies are conscious of ESG outcomes. Beyond the firm is the impact of the consideration of ESG principles on legislation in countries like Ghana. In Ghana, there seems to be a significant difference in the reporting of sustainability initiatives between local mining firms and their foreign-owned equivalents. Hinson et al. found that even regardless of size, foreign-owned mining companies are more likely to make and report sustainability initiatives, especially in environmental sustainability. This difference implies that local firms may be more in the early stages of adoption when it comes to the incorporation of Environmental, Social, and Governance principles in their reporting practices. Therefore, Hinson et al., emphasized local mining firms’ need to follow standardized reporting policies when discussing their sustainability initiatives, implying that a lot more development is necessary.[29] For local Ghanaian firms, the reality is a slow adaptation to ESG practices and this has significant implications for the role of these firms in the promotion of women’s rights and gender equality. The low exposure to investor-influenced behavior by local Ghanaian firms could be attributed to the nature of equity holdings in these firms which are largely indigenous. The Shell Petroleum Development Company of Nigeria Limited For more than twenty-five years before 2005, Shell Petroleum Development Company of Nigeria Limited (SPDC) has entered into Memoranda of Understanding (MoU) with communities in the Niger Delta area Thus, from 1980 to 2005, SPDC had entered into MoUs with more than one thousand individual communities in the region, over bilateral agreements. More than that, the communities were actively trying to make relevant their demands or needs of the social value by engaging through MoUs with SPDC. Under the MoUs, many capital-intensive infrastructure projects, such as roads, health centers, and schools, continued existing or focusing on some short-term and limited activities largely unrelated to the development needs of the communities.[30] However, many communities remained dissatisfied with SPDC. For the company, the MoUs took a significant number of resources and time to manage, especially because the projects were implemented through SPDC’s internal networks.[31] Unfortunately, in the Niger Delta of Nigeria, women are underrepresented at many levels and suffer access to amenities and good education but are less impacted by the corporate social responsibility drives of the multinational oil companies in the region like SPDC. According to research, Multinational Oil Companies’ (MOCs) Corporate Social Responsibility (CSR) initiatives have helped rural women in their communities overcome cultural and practical obstacles to pursuing postsecondary education. Though these interventions have generally been successful in supporting education initiatives, none of the scholarships are specifically directed toward women. As a result, there is still a human capital gap between men and women in rural areas. This shows that CSR interventions may prolong barriers to women’s participation in economic, political, and social development if they do not place equal emphasis on gender diversity and economic opportunities for women in addition to education. This could therefore impede the Niger Delta region’s efforts to reduce poverty and fulfill the Sustainable Development Goals (SDGs).[32] Tullow Oil Ghana Tullow Oil in Ghana started a program for young women, to cover the gender gap in the technology sector in 2017, and this was to eradicate barriers that prevented more women in STEM fields in Ghana. Some of the barriers include social norms, prejudiced teaching strategies, girls’ lack of confidence, and fear. This program tagged, “Educate to Innovate with STEM” was intended to reach as far as communities in Ghana lack access to good educational resources.[33] Despite these obstacles, Ghana is home to some encouraging projects that aim to buck the trend. Tullow Oil’s “Educate to Innovate with STEM Project” is one such program that was initiated to be executed in six coastal districts of the Western Region of Ghana. The project has prioritized the advancement of women in STEM education since its founding in 2017. There has been a steady rise in the number of women pursuing STEM fields, with numbers jumping from 335 in 2017–2018 and up to as high as 787 in 2021.[34] One of the young women impacted by the program is Emmanuella Blay Andoh. Despite being physically challenged and hailing from a financially disadvantaged community in the Western Region of Ghana. She was able to get into university aided by the program, as a computer engineering student at Kwame Nkrumah University of Science and Technology (KNUST), supported by a full scholarship through the MasterCard Scholars Program.[35] The contribution of Tullow Oil towards the realization of gender equality is a concerted one that represents the consciousness of foreign firms in Ghana towards ESG principles, as against their local counterparts. From the case studies, there is no doubt that ESG principles are beneficial on the whole, as they help in the implementation of the Sustainable Development Goals, the consciousness of ESG principles can help in the realization of gender equality and the promotion of women’s rights both within the firm and outside the firm. However, ESG principles must be well integrated into regulatory structures, considering the regional developmental needs in West Africa. Strategies to Ensure Compliance with ESG Principles Policymakers In Nigeria and Ghana, the government has the most capacity to ensure compliance with ESG principles. This is because whether or not investment could be an incentive for the integration of ESG principles into the activities of a firm, ESG principles are beneficial for the growth of firms and will aid in the promotion of women’s rights. Another reason why ESG principles should be taken seriously by regulators is that it will help ensure the sustainability of an economy through the benefits that will arise from ESG practice. Therefore, regulatory consideration for ESG principles could come through Corporate Governance codes that will embrace ESG principles, and governments in West Africa could provide annual evaluations of the activities of firms, giving percentage cuts on taxes for best performers. Corporate leaders, and stakeholders ESG principles are beneficial for the interest of corporate leaders and shareholders. Apart from the social impact of ESG, there is the cost-efficiency of the firm’s operations that is enabled by ESG considerations. Research has shown that when businesses demonstrate strong ESG performance, it has the potential to mitigate financial risks and improve the stability of business operations. (Liu, 2024) Corporate leaders can influence corporate policy towards ESG considerations, following up on human resources, procurement, corporate social responsibility, and culture. This would ramp up sustainability for the firm and would save on resources for the firm while maximizing its human resources through its implementation of diversity, equity, and inclusion. Conclusion The implementation of Environmental, Social, and Governance principles in the corporate sector of West Africa is a promising step toward women’s rights and gender equality. We investigated the significance of ESG-related policies in promoting potential outcomes for women such as workplace equality, greater gender diversity in senior management, and economic wellbeing. Furthermore, the incorporation of ESG principles in West Africa’s legal fabric can significantly contribute to sustainability and gender equality. The results have focused attention on the importance of region-specific Customized ESG strategies in West Africa, with primed ESG approaches helping to accomplish the United Nations Sustainable development goals and empower women. Bibliography Abiri-Franklin, S., Olugasa, O. (2022). Transplanting Corporate Sustainability into the Code of Conduct for Public Officers: A Nigerian Perspective. Current Trends in Humanities and Law Research, 1(2). Abiri-Franklin, S., Olugasa, O. (2022). Succession Planning and Women Inclusion in Family Businesses. Business Perspective Review, 4(1). Adisa, T.A., Mordi, C., Simpson, R., Iwowo, V. (2021). Social Dominance, Hypermasculinity, and Career Barriers in Nigeria. Gender, Work & Organization, 28(1). Bako, M.J., Syed, J. (2018). Women’s Marginalization in Nigeria and the Way Forward. Human Resource Development International, 21, pp. 425-443. Akpambang, E.M. (2022). Sexual Harassment of Female Employees in the Workplace: Imperative for Stringent Legal and Policy Frameworks in Nigeria. Pancasila and Law Review, 3(1). Aseidu, E., Boakye, A.N., Amoako, G.K., Malcalm, E. (2023). Gender and Sustainability in Africa. Corporate Sustainability in Africa. New York City: Palgrave MacMillan. Bature, E.A., Edoeje, G.D. (2023). Globalization and Women in Governance in Nigeria: 2015-2022. NG Journal of Social Development, 11(1). Cardoso, M.D., Fernandes, G.A., Teixeira, M. A. (2023). Women Leaders and ESG Performance: Exploring Gender Equality in Global South Companies. Cosmopolitan Civil Societies: An Interdisciplinary Journal, 15(2). Celis, I.L.-R., Velasco-Balmaseda, E., Bobadilla, S.F., Alonso-Almeida, M.D., Intxaurburu-Clemente, G. (2014). Does Having Women Managers Lead to Increased Gender Equality Practices in Corporate Social Responsibility? Business Ethics: the Environment & Responsibility, 24(1). Coleman, I. (2010). The Global Glass Ceiling: Why Empowering Women is Good for Business. Foreign Affairs, 89. Gorte, J. (2019). The Investment Case for Gender Equality. Investments & Wealth Monitor. Hinson, R.E., Renner, A., Kosiba, J.P., Asiedu, F.O. (2018). Mining Firms and Sustainability Reporting in Ghana. In Innovation Management, Entrepreneurship and Sustainability (IMES 2018). Prague: Vysoká škola ekonomická v Praze. Isike, C. (2016). Women, Inclusiveness and Participatory Governance in Nigeria’s. Journal of Social Sciences, 49(3). Krawczyk, K.A., King, B.A. (2023). Introduction: A Dichotomy of Development—Women’s Empowerment and Women’s Inequality. Women’s Contributions to Development in West Africa. New York City: Palgrave MacMillan. Lalude, O.M. (2023). If I Ran the Zoo: Protecting the Rights of Black African Minorities. International Journal on Minority and Group Rights, 31(1). Lalude, O.M. (2024). Elimination of Dscrimination Against Women and the African Continental Free Trade Area: The Balance between Gender Inclusivity and Cultural Challenges. International Journal on Minority and Group Rights, aop. Lalude, O.M., Fatehinse, A. (2020). Economic Justice and Judicial Structure: Realizing Economic Growth in Nigeria. Society & Sustainability, 2(1). Lalude, O. M., & Udombana, N. J. (2022). Universality and Particularity: Why Universalism Should be the Standard for Human Rights. Legal Issues Journal, 9(1). Liu, T.-K. (2024). ESG, corporate social responsibility and business effectiveness in Taiwan’s banking industry: Cost and risk perspectives. Asian Economic and Financial Review, 14(1), 12-28. Luh, P.K., Arthur, M., Fiador, V., Kusi, B.A. (2024). Gender of Firm Leadership and Environmental, Social and Governance (ESG) Reporting: Evidence from Banks Listed on Ghana Stock Exchange. Gender in Management, aop. Muñoz, B.R. (2024). Empowering Voices: Exploring the Career Trajectories of Women of Color HR Professionals amid Disruptive Change. Dallas: Abilene Christian University. Obaoye, J. K., & Shouping, L. (2021). Gender discrimination against women and discriminatory law in Nigeria. Journal of Law and Research, 7(6), 54-79. (2016). Gender Equality in West Africa. The Organisation for Economic Co-operation and Development). Available at: <https://www.oecd.org/swac/topics/gender.htm> (Retrieved on: 09.04.2024). S&P Global. (2020). How Gender Fits into ESG? New York City: S&P Global. Salazar, L., Moline, A. (2023). Increasing Women’s Representation in Business Leadership. World Bank Group Gender Thematic Policy Notes Series: Evidence and Practice Note. Washington DC: World Bank. Strumskyte, S., Magaña, S.R., Bendig, H. (2022). Women’s Leadership in Environmental Action. Paris: Organisation for Economic Co-Operation and Development. Uduji, J.I., Okolo-Obasi, E.N., Asongu, S.A. (2020). The Impact of Corporate Social Responsibility Interventions on Female Education Development in the Rural Niger Delta Region of Nigeria. Progress in Development Studies, 20(1). UN Convention on the Elimination of All Forms of Discrimination against Women. (1979). UNFCCC Secretariat. (2022). Dimensions and Examples of the Gender-differentiated Impacts of Climate Change, the Role of Women as Agents of Change and Opportunities for Women. Synthesis report by the secretariat. Bonn: United Nations. Youth Bridge Foundation. (2022). Tullow Oil Enabling Stem Education Progression for Young Females in Deprived Communities in Ghana. Available at: <https://www.youthbridgefoundation.org/tullow-oil-enabling-stem-education-progression-for-young-females-in-deprived-communities-in-ghana/> (Retrieved on: 01.01.2023). Footnotes [1] Cardoso, M.D., Fernandes, G.A., Teixeira, M. A. (2023). Women Leaders and ESG Performance: Exploring Gender Equality in Global South Companies. Cosmopolitan Civil Societies: An Interdisciplinary Journal, 15(2), pp. 64-83. [2] Abiri-Franklin, S., Olugasa, O. (2022). Succession Planning and Women Inclusion in Family Businesses. Business Perspective Review, 4(1). [3] Lalude, O.M. (2023). If I Ran the Zoo: Protecting the Rights of Black African Minorities. International Journal on Minority and Group Rights, 31(1), pp. 29-50. [4] Abiri-Franklin, S., Olugasa, O. (2022). Transplanting Corporate Sustainability into the Code of Conduct for Public Officers: A Nigerian Perspective. Current Trends in Humanities and Law Research, 1(2), p. 24. [5] Lalude, O.M. (2024). Elimination of Dscrimination Against Women and the African Continental Free Trade Area: The Balance between Gender Inclusivity and Cultural Challenges. International Journal on Minority and Group Rights, aop, pp. 1-19. [6] Lalude, O. M., & Udombana, N. J. (2022). Universality and Particularity: Why Universalism Should be the Standard for Human Rights. Legal Issues Journal, 9(1). [7] Salazar, L., Moline, A. (2023). Increasing Women’s Representation in Business Leadership. World Bank Group Gender Thematic Policy Notes Series: Evidence and Practice Note. Washington DC: World Bank. [8] Abiri-Franklin, S., Olugasa, O. (2022). Transplanting Corporate Sustainability into the Code of Conduct for Public Officers: A Nigerian Perspective. Current Trends in Humanities and Law Research, 1(2), p. 24. [9] Muñoz, B.R. (2024). Empowering Voices: Exploring the Career Trajectories of Women of Color HR Professionals amid Disruptive Change. Dallas: Abilene Christian University. [10] Gorte, J. (2019). The Investment Case for Gender Equality. Investments & Wealth Monitor. [11] Obaoye, J. K., & Shouping, L. (2021). Gender discrimination against women and discriminatory law in Nigeria. Journal of Law and Research, 7(6). [12] Adisa, T.A., Mordi, C., Simpson, R., Iwowo, V. (2021). Social Dominance, Hypermasculinity, and Career Barriers in Nigeria. Gender, Work & Organization, 28(1), pp. 175-194. [13] Akpambang, E.M. (2022). Sexual Harassment of Female Employees in the Workplace: Imperative for Stringent Legal and Policy Frameworks in Nigeria. Pancasila and Law Review, 3(1), pp. 69-94. [14] Bako, M.J., Syed, J. (2018). Women’s Marginalization in Nigeria and the Way Forward. Human Resource Development International, 21, pp. 425-443. [15] Aseidu, E., Boakye, A.N., Amoako, G.K., Malcalm, E. (2023). Gender and Sustainability in Africa. Corporate Sustainability in Africa. New York City: Palgrave MacMillan, pp. 319–345. [16] Strumskyte, S., Magaña, S.R., Bendig, H. (2022). Women’s Leadership in Environmental Action. Paris: Organisation for Economic Co-Operation and Development. [17] OECD. (2016). Gender Equality in West Africa. The Organisation for Economic Co-operation and Development). Available at: <https://www.oecd.org/swac/topics/gender.htm> (Retrieved on: 09.04.2024). [18] UN Convention on the Elimination of All Forms of Discrimination against Women. (1979). [19] Bako, M.J., Syed, J. (2018). Women’s Marginalization in Nigeria and the Way Forward. Human Resource Development International, 21, pp. 425-443. [20] Krawczyk, K.A., King, B.A. (2023). Introduction: A Dichotomy of Development—Women’s Empowerment and Women’s Inequality. Women’s Contributions to Development in West Africa. New York City: Palgrave MacMillan, pp. 1–27. [21] Coleman, I. (2010). The Global Glass Ceiling: Why Empowering Women is Good for Business. Foreign Affairs, 89, p. 13. [22] Lalude, O.M., Fatehinse, A. (2020). Economic Justice and Judicial Structure: Realizing Economic Growth in Nigeria. Society & Sustainability, 2(1), pp. 25-34. [23] Bature, E.A., Edoeje, G.D. (2023). Globalization and Women in Governance in Nigeria: 2015-2022. NG Journal of Social Development, 11(1). [24] Celis, I.L.-R., Velasco-Balmaseda, E., Bobadilla, S.F., Alonso-Almeida, M.D., Intxaurburu-Clemente, G. (2014). Does Having Women Managers Lead to Increased Gender Equality Practices in Corporate Social Responsibility? Business Ethics: the Environment & Responsibility, 24(1), pp. 91-110. [25] Coleman, I. (2010). The Global Glass Ceiling: Why Empowering Women is Good for Business. Foreign Affairs, 89, p. 13. [26] UNFCCC Secretariat. (2022). Dimensions and Examples of the Gender-differentiated Impacts of Climate Change, the Role of Women as Agents of Change and Opportunities for Women. Synthesis report by the secretariat. Bonn: United Nations. [27] S&P Global. (2020). How Gender Fits into ESG? New York City: S&P Global. [28] Luh, P.K., Arthur, M., Fiador, V., Kusi, B.A. (2024). Gender of Firm Leadership and Environmental, Social and Governance (ESG) Reporting: Evidence from Banks Listed on Ghana Stock Exchange. Gender in Management, aop. [29] Hinson, R.E., Renner, A., Kosiba, J.P., Asiedu, F.O. (2018). Mining Firms and Sustainability Reporting in Ghana. In Innovation Management, Entrepreneurship and Sustainability (IMES 2018). Prague: Vysoká škola ekonomická v Praze, p. 10. [30] Isike, C. (2016). Women, Inclusiveness and Participatory Governance in Nigeria’s. Journal of Social Sciences, 49(3), pp. 205-214. [31] Ibid. [32] Uduji, J.I., Okolo-Obasi, E.N., Asongu, S.A. (2020). The Impact of Corporate Social Responsibility Interventions on Female Education Development in the Rural Niger Delta Region of Nigeria. Progress in Development Studies, 20(1), pp. 45-64. [33] Youth Bridge Foundation. (2022). Tullow Oil Enabling Stem Education Progression for Young Females in Deprived Communities in Ghana. Available at: <https://www.youthbridgefoundation.org/tullow-oil-enabling-stem-education-progression-for-young-females-in-deprived-communities-in-ghana/> (Retrieved on: 01.01.2023). [34] Ibid. [35] Ibid.
The Study of Right to Freedom of Expression, Digital Media Laws and Demand for Innovation
This paper provides an overview of the concept of the right to freedom of expression, the concept of digital media, relating and applicable laws as well as needed innovation in the existing legal framework to prohibit misinformation on digital media. Nowadays digital platforms are the prime platform for communication. This study highlights the right to freedom of expression at the National and International level with certain limitations. It explains legal protection for individuals and the responsibilities of digital media. It elaborates on key issues of sharing misinformation. This paper focuses on incidents of misuse of freedom of expression on digital media, case laws, recent developments, and international standards of digital governance as well as addresses the harms associated with misinformation shared on digital platforms. It suggests effective measures against digital abuse which will help to prohibit the misuse of the right to freedom of expression on various digital platforms. Keywords: Right to freedom of expression, media, digital media, laws and innovation Introduction Information communication technologies and the internet have become important parts of everyone’s life around the world. It is useful for improving openness and public debate in the society. But this right to freedom of expression is not absolute. It is with some restrictions. The same restrictions apply to the person who is sharing any kind of information on digital media platforms. There are various guidelines, conventions, and international action plans to cope with the situation of sharing misinformation, and misleading content as well as obscene, and defamatory, provocative, alarming information. The whole World is facing issues because of misuse of digital media technology and misuse of freedom of expression. Many more States are trying to adopt laws and policies to tackle such kinds of issues on a domestic level. Digital media has become the primary tool for sharing information in various kinds of information. People use Facebook, WeChat, Twitter, Instagram, Pinterest Hike, Messenger Whatsapp and YouTube, Vlogs, Blogs, and Websites for communication as well as sharing information. The information that is shared through all these platforms is not always appropriate; it creates tensions in society or misleads the public. There are various examples of Cybercrimes reported in various countries, which include blackmailing, fraud, harassment, cyber defamation, and misleading sexual offenses. The public misuses technology or sometimes they misuse the right to freedom of expression on digital media platforms Worldwide. Digital media which includes social media, communication apps, video games, streaming, and augmented and virtual reality, are used by everyone for gaining knowledge, communication, awareness, education, and entertainment. This provides affordances and gratifications that promote media use and overuse, trigger dopamine reward pathways, and influence public identity, self-esteem, socialization, learning and development, and behavior. Nowadays it is the biggest issue that various apps are used to collect information and share that information for profitable advertisement, cyberbullying, and misguiding to the public or for spreading rumors. Sikarwar Rahul defined Digital Media as “digitized content that can be transmitted over the internet or computer networks”.[1] Digital media is the media which processed, stored, analyzed, and distributed by electronic machines or devices like mobile phones, computers, podcasts, or applications. Various companies, organizations, and people use digital media to share information for any kind of purpose which includes education. Awareness, politically updated entertainment, games, advertisements, and businesses. The digital era started in the 20th century as information technology was used by industries and then after it became a part of public life. Information is shared on digital media in the form of articles, audio, videos, advertisements, music, podcasts, audiobooks, and games, audio and video stories. In the years that followed, newspapers, magazines, radio, and broadcast television were shifting nowadays into the digital world. Google, Netflix, Apple, Facebook, Twitter, and Amazon are popular digital media companies in the World. Freedom of expression is the most important right which is protected under national as well as international laws and it has a place in various Constitutions also. This right is necessary for human development, personal fulfillment, for searching truth, and information, to sharing ideas and thoughts and it is the requisite of democracy and good governance. Citizens can raise their voice against the injustice. They can use it as a weapon for fulfilling any demand from the government which is coming under basic need. Authorities or the government can frame policies and enact new legislation as per the demand of the public. Therefore free debate is necessary with some limitations. A good democratic government is identified with the right of free speech with certain limitations. ‘Freedom of expression’ is important to share any kind of information or to express our ideas and thoughts through offline as well as online media. There is a close connection between the right to freedom of expression and the use of digital media. People can share various types of information through digital platforms because they have the right to freedom of expression which includes the right to seek, receive, and impart information, and ideas without interference and regardless of frontiers through any media. In a broader sense freedom of expression is the freedom to make fair criticism against government and public office, posting on social media. Protesting in public, listening radio and watching TV, enjoying on the bank of a lake, or river, painting, drawing, acting, dancing, playing music, singing songs, collecting information, and sharing it the part of freedom of expression This right is with some limitations which include not harming others reputation, not to interfere in other’s privacy, not to incite for violence or discrimination. These restrictions are lawful, and executed with court oversight. International Frameworks and Freedom of Expression The right to freedom of expression is safeguarded under various international instruments like Article 19 of the Universal Declaration of Human Rights as well as Under the International Covenant on Civil and Political Rights 1966. The UDHR states that ‘everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers’.[2] Article 19 of The ICCPR holds that, ‘everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or print, in the form of art, or through any other media of his choice’.[3] Article 19 (2) of the ICCPR states, ‘the right to freedom of expression applies regardless of frontiers and through any media of one’s choice which includes internet-based modes of communication’.[4] The same rights means freedom of expression that people have offline and must also be protected online which is applicable without interference and through any media of one’s choice, in accordance with articles 19 of the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights”. Johannesburg Principles There is no clarity among people about the restrictions imposed upon freedom of expression when and how this freedom is curtailed or restricted and in which manner. There was an try to limit this freedom of expression under a specific condition as mentioned under Siracusa Principles and Johannesburg Principle which includes National Security, Freedom of Expression, and Access to Information.[5] Frank La Rue highlighted in 2013 under the UN Special Rapporteur[6] on the promotion and protection there may be no disagreements on freedom of expression as a legal right, but it is important that is not a non-derogable right, and therefore may be restricted or limited and it is subject to safeguards as mentioned under Article 19(3) of the ICCPR. Freedom of expression has also been protected under various regional Conventions on Human Rights. It is also protected under the European Convention for the Protection of Human Rights and Fundamental Freedoms, Article 10 of the European Convention on Human Rights and Fundamental Freedoms states that ‘Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers’.[7] European Union adopted The General Data Protection Regulation (GDPR)[8] to regulate digital media which regulates the sharing of personal information online as well as its management. It secures the privacy of individuals, data protection, and freedom of expression in the modern era. There is needed consent from the individual to process his data. It was cleared that prior censorship, any kind of direct or indirect interference upon any expression, opinion, or information transmitted through any means in oral, written, artistic, visual, or electronic form must be prohibited by law.[9] Restrictions to the free circulation of ideas and opinions, as well as the arbitrary imposition of information and the imposition of obstacles to the free flow of information, violate the right to freedom of expression. The Indian Constitution[10] ensures the fundamental right to freedom of speech and expression under Article 19(1)(a) for every citizen of India. This is a fundamental right to share and express all kinds of thoughts, opinions, and ideas. But this freedom is not absolute. As per Article 19(2) of the Indian Constitution, it is needed to follow a few reasonable restrictions which include not harming India’s sovereignty and integrity, security of the State, not disturbing public order and law, not violating decency and morality, not to defame anyone unnecessarily and not to make contempt of Court. These restrictions apply to online media or digital media users also. Despite having laws there are various incidents of sharing misinformation through digital platforms. It is observed that many instances came into focus that digital media have been misused by users in many countries as well as in India. Fake news is the biggest problem today, it influences negatively to public. It shapes public opinion. Many people make wrong decisions, fall into wrong investments, they face fraud incidents. Digital media, websites, blogs, vlogs, Social media, and online users all are part of the problem and contributing to the spreading of misinformation. Fake information shapes public opinion and sets local, national, and international agendas with the help of digital setup. There is a trend in business communities to spread fake information and influence the public to increase demand for any product. These businessmen use digital media to tell fake stories of scarcity of products in the future. By reading or watching such information public purchases products immediately even though they don’t need them. Fake information is shared to achieve political, social, business, publicity, or any other goal. One of the actresses in India shared fake information about her death through her social media account just for publicity. This is also the trend in political information to share some fake stories against the opposition or against the ruling party which affects voters during the election period. It results in increasing demand for a particular stock or product in the market. Nowadays this has become a trend in digital media. It is very difficult for the common person to find the truth and facts. They become a victim of such fake information. Fake information is shared intentionally and sometimes unintentionally. People are trapped in fake stories because of a lack of awareness; they don’t realize and know that they are under the influence of misleading content information. It is difficult to handle fake stories that are being circulated through digital media due to a lack of evidence and sufficient proof to prove that are fake. If there is sufficient proof or evidence available to prove the story is fake but the main issue is to take down that misleading information because of one’s post, another one likes, and the third one shares. Human Rights Watch said that 83 governments worldwide have justified free speech and peaceful assembly during the COVID-19 Pandemic.[11] Authorities have attacked detained, prosecuted, killed critics, broken up peaceful protests, closed media outlets, and enacted vague laws criminalizing speech that they claim threatens public health. The government took action against journalists, activists, healthcare workers, political opposition groups, and others for criticizing government responses to the coronavirus. Media Defence published that the UN Educational, Scientific, and Cultural Organization (UNESCO) has found that three-quarters of women journalists have experienced online violence. Among them, 30% responded to online violence by self-censoring on social media. Black, indigenous, Jewish, Arab, and lesbian women journalists experienced the highest and most severe form of online violence. 20% of women surveyed were physically attacked or abused offline in connection with online violence that they had experienced.[12] Reporters Without Borders sheds light on the latest danger of journalist’s threats and insults on social networks that are designed to intimidate them into silence. The sources of these threats and insults may be ordinary trolls. Individuals or communities of individuals hiding behind their screens or armies of online mercenaries. Harassing journalists has never been as easy as it is now. Freedom of expression and bots are being used to curtail the freedom to inform.[13] United Nations has provided key guidelines on freedom of expression. Incitement to discrimination, hostility, and violence which are prohibited by law under these guidelines. States have to use alternative tools or remedies by educating and creating awareness of the impact of hate speech online and offline.[14] Individuals hesitate to express their opinions and thoughts on digital media because of trolling incidents are increased after sharing any free speech. Posetti J. and Bontcheva K. and Et. al. (2023) write that Rana Ayyub and Disha Ravi, journalists have faced legal threats for their work.[15] According to Boivin and Johnson (2024), “Digital literacy can help to reduce heavy censorship and it will empower to public to participate in shaping values for online communities against the hate speech”.[16] They demanded communication technologies should be positive for civic engagement. The European Court of Human Rights found that the sanctions imposed on a blogger for offending the feelings of religious believers and inciting hatred toward a social group in a series of video messages had breached the blogger’s right to freedom of expression.[17] European Court of Human Rights cleared that criminal prosecution and conviction of the blogger is disproportionate interference which was not necessary in a democratic society and such interference is not justified. Ruslan Gennadyevich Sokolovskiy, a content-creator and blogger. His YouTube channel had 470,000 subscribers. He was convicted for a series of videos posted on YouTube. He shared hate speech through videos. The videos contained Sokolovskiy’s comments on a ban of an atheist group from a social network in the Chechen Republic, comments on hate mail he had received from religious believers, and his criticism of the Russian Orthodox Church. He also made statements about the existence of Jesus and the Prophet Muhammad. In the case of Sokolovskiy v. Russia the European Court of Human Rights dealt with the issue of religious hate speech as a criminal offense interfering with the right to freedom of expression and information under Article 10 of the European Court of Human Rights. Incidents of sharing false information are increasing day by day. Various false or misleading advertisements are published or shared through Pinterest, Facebook page, Instagram as well as Whatsapp also. The public is coming under the influence of such advertisements and facing issues of money loss. Few fraudulent advertisements are published or shared for participating in conferences, workshops, seminars, and paper publications or to purchase clothes and various products. One of my colleagues sent money to purchase clothes after seeing an online advertisement. The product was not delivered. He was asked to pay more money to start GPS to reach the location by a delivery service person. The colleague asked to return the paid amount, then the seller man sent one transaction message of a bigger amount and told him to return immediately extra transacted amount, but there was no amount transacted in the actual, and a fake transaction message was created and sent by the mobile number. The bank never sends transaction details through mobile numbers. This incident took place online in India with the Maharashtrian victim person in November 2024. The Ministry of Information and Technology issued a notice to WhatsApp to use such preventive technology to prevent the messages and information shared through WhatsApp groups in large numbers which was the cause of rumors and violence.[18] Then after Whatsapp technology was modified and admin could restrict group members from sharing messages. One more feature added to WhatsApp technology is to find the original source of messages or information shared through it. ‘In India Government ordered the violation of free speech’.[19] YouTube is a popular digital platform for sharing videos. Many videos that are available on YouTube are misguided to the public. Untested health care tips, rumors about celebrities, untested food recipes are shared, untested and uncertified beauty formulas, magic tips are shared and wrong activities of children are promoted. Users violate the idea of freedom of expression and broadcast or share anything with the public. Many people follow YouTube videos and get affected. Provocative information is also shared through various YouTube channels which leads to violence. YouTube doesn’t allow sharing that information which poses a risk of harm by spreading wrong medical information which is contrary to the local health authorities. YouTube policy doesn’t allow medical misinformation that contradicts health authority guidance on the prevention or transmission of specific health conditions or on the safety, efficacy, or ingredients of currently approved and administered vaccines. YouTube policy doesn’t promote information that contradicts health authority guidance on treatments for specific health conditions, including promotion of specific harmful substances or practices that have not been approved by local health authorities or the World Health Organization as safe or effective, or that have been confirmed to cause severe harm. YouTube does not allow sharing information denying the existence of specific health conditions. It applies to videos, video descriptions, comments, live streams, and any other YouTube product or feature. Many YouTube users share unverified and uncertified healthcare information. Surety for weight Loss and wet gain products is shared. Risk-causing stunts are captured by cameras and shared through YouTube. Children follow the same stunts and get affected. Various bloggers share misinformation through their blogs. There was a story of a 100-year-old granny living her life with good fitness. The secret of her fitness was the herbal medicinal product of a particular company. A Newly established company gives such a surety about the herbal medicinal product and through their advertisement, they tell that Granny has been taking that herbal product for many years. This is a great example of misinformation shared through digital media. ‘The Great Hack’ a documentary on Netflix is one of the examples of a breach of users’ data. Netflix created political controversy through its international productions like ‘The Mechanism‘ which is about a political scandal in Brazil. Netflix is another digital platform to share information in video forms. It is famous for documentaries, TV shows, and web series. It is the top streaming service. Many films are broadcast on Netflix. Standard of these films is less than films which are shown on T.V. or Cinema theaters and approved by the Censor board. Film is an artistic expression. It is coming within the ambit of freedom of expression. Many film producers misuse freedom of expression and share vulgar, obscene films through Netflix which is against the norms. Significance Based on various incidents and cases, it is observed that misinformation is shared through digital media which affects society, disturbs public order, violates morality and decency, leads to violence, and creates a threat to national security. Obscene content corrupts the minds of the public which leads to incidents of sexual harassment. Many people are defamed unnecessarily. Private is interfered with. Various people make false decisions based on false information available on digital media. It is necessary to find an urgent solution to prohibit the public from sharing inappropriate content on digital media. Therefore it is important to find out the answers few questions such as: Whether the public have a lack of knowledge about existing laws that regulate digital media? Is there any other reason for misusing freedom of expression on digital platforms? Objectives To study the concept of freedom of expression. To evaluate International and National laws regulating digital media. To highlight the incidents of misuse of the right to freedom of expression. To find reasons for misusing of right to freedom of expression through digital platforms. Hypothesis Innovation is needed in the existing legal framework to regulate digital media. Innovation is needed in existing digital media technology to avoid incidents of misusing freedom of expression. Methodology This research has been carried out with the combined method of qualitative as well as quantitative methods. Data related to the legal framework which protects the right to freedom of expression and laws relating to digital media were collected by using doctrinal research methods and hypotheses are tested by using non doctrinal methods- quantitative research which includes observation and survey by using Google questionnaire. Results And Discussion Based on International and National legal frameworks, incidents, case laws, and various reports, it is observed that digital media users share misinformation on digital platforms. Such incidents are increasing day by day. Many conventions and legal frameworks adopted to curtail this burning issue but even abusive, malicious, misleading, defamatory and obscene information is shared on digital platforms which is the biggest headache of various nationals today. The United Nations Global Action Plan is appreciated but the challenge is here rules should be matched with fast-changing communication digital media technology and should be sustained in future years; it is one of the biggest challenges here. Social media surveillance carried out by the US government will be beneficial to prohibiting the content. 32 People participated in this research from Maharashtra and Kerala region of India. They were lawyers and law students from the age group of 21 to 45 and they are users of digital media. They shared their opinion. Chart I Chart II People were asked how many times they use digital media then 87.50% people answered that they use it daily, 6.30% people use it 2/3 times in a week and 3.10% people said they use once in a week and same 3.10 % people said they use rarely as shown in chart I. Participants were asked which digital platform they used to share information then 43.80% people answered that they used Instagram, 25% Facebook, 25% other apps like a We chat, WhatsApp, and Telegram, and 6.20% participants said they used Twitter for communication or sharing information on digital platform. As shown in Chart II. One notable thing is here that Instagram is the most liked and used app by youngsters for sharing information whereas Facebook is used by middle-aged people. Chart III Chart IV 71.90% of participants were aware of digital media laws but the remarkable point is here that 28.10 % of law field people are not aware of digital media laws as shown in Chart III. Based on this it is clear that there is a possibility of less awareness among the common public about digital media laws and this can be one of the reasons for misusing freedom of expression. 84.40% of participants were not sure about the misuse of freedom of expression on the digital platform but 9.40% of participants said that people misuse the right to freedom of expression and 6.30% said that people don’t misuse it as shown in Chart IV. All participants demanded change in existing digital media laws and technology to prohibit the misuse of the right to freedom of expression on digital media platforms. Participants opined that the government should educate every citizen about digital platforms and freedom of expression; governments may restrict freedom of expression when it’s necessary and proportionate to protect national security, public order, and the rights of others. Social media platforms should not be used as a means for unrestricted freedom of expression. In a very short period, harmful information religious hate, and vulgarity goes viral. Many young people are using these platforms to promote and display such negativity, which has serious consequences for society. The unchecked nature of social media allows these harmful messages to reach a wide audience quickly, exacerbating social divisions and spreading intolerance. They demanded a limit to age and sharing information per day. There is a demand for monitoring such information and taking fast actions against wrong information, more strict legislation to regulate digital media as well as to prohibit misuse of language on digital platforms. They demanded protection for whistleblowers and journalists who use digital media to expose corruption and promote accountability. Laws on freedom of expression for digital media should balance free speech with accountability. A legal framework that includes immediate action and punishment is one where the law ensures swift responses to violations and provides timely consequences for wrongdoers and compliance with a particular code of conduct. One must get the proper information before commenting or writing on a particular topic. There is also a demand to impose penalties for repeat offenders who violate platform policies. Participants demanded change in existing technology to prevent the misuse of freedom of expression in digital media which includes enhancement of content moderation, use of AI with human oversight, advanced AI systems for detecting hate speech, misinformation, and harmful information with regular audits and human oversight to reduce biases and errors, culturally aware algorithms to respect regional norms and laws, ensuring context-sensitive moderation, platforms should disclose how information is promoted or suppressed to detect that biases or malicious intention and harmful narratives, optional identity verification methods that allow accountability for users who spread harmful or illegal content, while maintaining anonymity for those who require it for legitimate reasons, governments and NGOs should educate users about responsible and online behavior, improved reporting mechanisms which will make easier for users to report harmful information faster, stricter enforcement of terms, collaboration between platforms to track and prevent coordinated disinformation campaigns, harassment, and other malicious activities, tools for Fact-Checking, integrate real-time fact-checking tools within platforms to help users verify the authenticity of information before sharing, train AI models using diverse datasets to minimize biases. Technology innovation can help to tackle the issue of misuse of freedom of expression on digital platforms. Conclusion This research brings to notice that only lawyers are aware of the digital media laws and they follow policies and principles underlined in various laws while using such technology for communication but most of the public in the world never fall into gaining knowledge about digital media technology and policies which restricts the sharing of misinformation through a digital platform. Law field people demand change in existing laws as well as digital media technology as a remedy to prohibit the misuse of misinformation and misuse of freedom of expression on digital platforms. Suggestions: Users must be educated about privacy policies, avoiding copyrighted material, defamatory information, or anything that threatens national security or friendly relations; Awareness among the public about laws relating to digital media should be created; The government should take strict action against misinformation shared through digital media; Comprehensive Data Protection Legislation should be enacted; Transparent Content Moderation Practices should be ensured; Appropriate changes should be made in digital media technology which is used to share various kinds of information; There is a need for strict laws to control hate speech, fake news, and fake posts; Immediate action after reporting the misuse is necessary; Compliance with a particular code of conduct is necessary. Bibliography Articles: Rahul, S. (2016). Definition of Digital Media. Available at: <https://www.linkedin.com/pulse/definition-digital-media-rahul-sikarwar-digitalmarketing-expert/>. Boivin, K.B., Johnson, M. (2024). Digital Media Literacy as a Precondition for Engaged Digital Citizenship. Centre for International Governance Innovation. Rue, F.L. (2013). UN Special Rapporteur on freedom of opinion and expression, UN Digital Library. Posetti, J., Bontcheva, K., et. al. (2023). Rana Ayyub: Targeted Online Violence at the Intersection of Misogyny and Islamophobia. International Centre for Journalists, University of Sheffield. Ministry of Electronic and Information Technology India. Available at: <meity.gov.in>. Human Rights Watch. (2021). Review of Free Speech During COVID-19. International Centre for Non-Profit-Law. Reporters Without Borders. (2018). Online Harassment of Journalists: The Trolls Attack. Global Investigative Journalism Network. Available at: <gijn.org>. United Nation’s Educational, Scientific, and Cultural Organization Survey Report. (2021). Threats faced by women journalists. Available at: <mediadefence.org>. Wire Staff. (2024). In India the Government Ordered for the Violation of Free Speech. Available at: < https://thewirehindi.com/272168/bolta-hindustan-youtube-alternate-media-govt/>. International and National Documents: European Council of Human Rights, Convention for the Protection of Human Rights and Fundamental Freedoms (Rome). (1950). Inter‐American Commission on Human Rights. (2000). Declaration of Principles of Freedom of Expression. Principle 5. Available at: <oas.org>. European Union. (2016). General Data Protection Regulation. Available at: <gdpr.eu>. Indian Constitutional Law. International Covenants on Civil and Political Rights. (1966). Article 19. General Assembly resolution 2200A XXI of the United Nations. Johannesburg Principles. (1995). Adopted by international law, national security, and human rights convened by Article 19, the International Centre Against Censorship, in collaboration with the Centre for Applied Legal Studies of the University of the Witwatersrand, Johannesburg. Available at: <refworld.org>. United Nation’s Strategy and Plan of Action on Hate Speech, pp. 2-5. Available at: <https://www.un.org/en/hate-speech/understanding-hate-speech/hate-speech-versus-freedom-of-speech>. Universal Declaration of Human Rights. (1948). Article 19. General Assembly resolution 217 A of the United Nations. Court Decision: ECtHR. Sokolovskiy v. Russia (04.06.2024). Footnotes [1] Rahul, S. (2016). Definition of Digital Media. Available at: <https://www.linkedin.com/pulse/definition-digital-media-rahul-sikarwar-digitalmarketing-expert/>. [2] Universal Declaration of Human Rights. (1948). Article 19. General Assembly resolution 217 A of the United Nations, p. 5. [3] International Covenants on Civil and Political Rights. (1966). Article 19. General Assembly resolution 2200A XXI of the United Nations, p. 11. [4] Ed. Article 19(2). [5] Johannesburg Principles. (1995). Adopted by international law, national security, and human rights convened by Article 19, the International Centre Against Censorship, in collaboration with the Centre for Applied Legal Studies of the University of the Witwatersrand, Johannesburg. Available at: <refworld.org>. [6] Rue, F.L. (2013). UN Special Rapporteur on freedom of opinion and expression, UN Digital Library, p. 6. [7] European Council of Human Rights, Convention for the Protection of Human Rights and Fundamental Freedoms (Rome). (1950). Article 10. [8] European Union. (2016). General Data Protection Regulation. Available at: <gdpr.eu>. [9] Inter‐American Commission on Human Rights. (2000). Declaration of Principles of Freedom of Expression. Principle 5. Available at: <oas.org>. [10] Indian Constitutional Law. Article 19(1)(a) and Article 19(2). [11] Human Rights Watch. (2021). Review of Free Speech During COVID-19. International Centre for Non-Profit-Law. [12] United Nation’s Educational, Scientific, and Cultural Organization Survey Report. (2021). Threats faced by women journalists. Available at: <mediadefence.org>. [13] Reporters Without Borders. (2018). Online Harassment of Journalists: The Trolls Attack. Global Investigative Journalism Network. Available at: <gijn.org>. [14] United Nation’s Strategy and Plan of Action on Hate Speech, pp. 2-5. Available at: <https://www.un.org/en/hate-speech/understanding-hate-speech/hate-speech-versus-freedom-of-speech>. [15] Posetti, J., Bontcheva, K., et. al. (2023). Rana Ayyub: Targeted Online Violence at the Intersection of Misogyny and Islamophobia. International Centre for Journalists, University of Sheffield, p. 4. [16] Boivin, K.B., Johnson, M. (2024). Digital Media Literacy as a Precondition for Engaged Digital Citizenship. Centre for International Governance Innovation, pp. 1-5. [17] ECtHR. Sokolovskiy v. Russia (04.06.2024). [18] Ministry of Electronic and Information Technology India. Available at: <meity.gov.in>. [19] Wire Staff. (2024). In India Government Ordered for the Violation of Free Speech. Available at: <https://thewirehindi.com/272168/bolta-hindustan-youtube-alternate-media-govt/>.