The article focuses on the analysis of the problematics and the need to legally regulate technology of medically assisted procreation. In most European countries medically assited procreation is regulated by laws, some countries MAP's procedure include in the list of services of compulsorary health insurance. Lithuania doesn't have a law regulating assisted procreation. The greatest discussion arises when the laws of assisted procreation are enacted and applied on ways and methods which are going to be applied and their compatibility with ethics, moral principles and public interest. The article also focuses on projects of laws, which were submitted to the parliament of the Republic of Lithuania.
The article focuses on the analysis of the problematics and the need to legally regulate technology of medically assisted procreation. In most European countries medically assited procreation is regulated by laws, some countries MAP's procedure include in the list of services of compulsorary health insurance. Lithuania doesn't have a law regulating assisted procreation. The greatest discussion arises when the laws of assisted procreation are enacted and applied on ways and methods which are going to be applied and their compatibility with ethics, moral principles and public interest. The article also focuses on projects of laws, which were submitted to the parliament of the Republic of Lithuania.
The article focuses on the analysis of the problematics and the need to legally regulate technology of medically assisted procreation. In most European countries medically assited procreation is regulated by laws, some countries MAP's procedure include in the list of services of compulsorary health insurance. Lithuania doesn't have a law regulating assisted procreation. The greatest discussion arises when the laws of assisted procreation are enacted and applied on ways and methods which are going to be applied and their compatibility with ethics, moral principles and public interest. The article also focuses on projects of laws, which were submitted to the parliament of the Republic of Lithuania.
The article focuses on the analysis of the problematics and the need to legally regulate technology of medically assisted procreation. In most European countries medically assited procreation is regulated by laws, some countries MAP's procedure include in the list of services of compulsorary health insurance. Lithuania doesn't have a law regulating assisted procreation. The greatest discussion arises when the laws of assisted procreation are enacted and applied on ways and methods which are going to be applied and their compatibility with ethics, moral principles and public interest. The article also focuses on projects of laws, which were submitted to the parliament of the Republic of Lithuania.
The aim of this article is to find out why the Constitutional Court, while examining constitutional justice cases, formulating the provisions of the official constitutional doctrine and, finally, choosing a specific solution of the case, could or sometimes even should take into consideration soft law norms and the constitutional law development tendencies. The legal effects produced by the soft law was undeniably recognized in Garibaldi's case by the Court of Justice of European Union and the obligation for national courts implementing the EU law to pay attention to the EU's soft law norms was settled out. Most likely this obligation means that national courts have to prove that they are familiar with the appropriate soft law norms and after choosing their own solution meeting soft law norms or not, they should indicate the reasons of chosen different interpretation than recommended. It can be stated that the necessity to pay respect to the soft law in constitutional jurisprudence in appropriate cases is inevitable, if the Constitutional Court do not seek to isolate itself from European and international constitutional context. It is even more so, when there are no binding acts in the specific field of law. It goes without saying that the Constitutional Court would rely on such documents only if there will be no contradictions with the constitutional provisions and will correspond to the particularities of national legal system. Soft law can be perceived as the source of inspiration for judges examining constitutional justice cases and formulating constitutional doctrine and as the signpost for lawmaking subjects adopting binding acts. Sometimes soft law can help understand the complicated or unclear provisions of binding acts and foresee possible consequences, and sometimes it is the only legal act regulating some sort of relationships, especially when it concerns new challenges arising to the changing societies (such as technological progress that obviously will affect human rights and freedoms etc.). There is no reason to invent the new definitions pertinent to the constitutional justice case if they are enshrined in the legal act, even if it is soft, adopted by the competent institution of constitutional law. Soft law is often taken into consideration in the texts of constitutional judgments as a part of international context of the case, as explanatory documents of the notions or examined principles, as the strengthening piece of chosen reasoning and sometimes even as the part of interpretation of constitutional norms. The jurisprudence of Lithuanian, Latvian and Moldovan constitutional courts was analyzed in order to prove the expansion of the use of soft law and the necessity to continue to do so. The constitutional soft law regulates issues common to all the democratic states as it is based on universally recognized principles of democracy, the rule of law and protection of human rights. Adopted mostly by the European Commission "For the Democracy through Law" (known as Venice Commission) it proposes legal regulation and some solutions of the constitutional problems that are not adopted or implemented in the national legal system, but should be followed by all the states which have chosen the path of democracy. Therefore, it is not only possible, but sometimes it is necessaire to let the soft law guide. And as the constitutional soft law is based on the values that could be derived from almost all democratic constitution, the possibility that there could be contradiction with the national constitutional provision or that it could menace to the principle of the supremacy of the Constitution doesn't seem very plausible.
The aim of this article is to find out why the Constitutional Court, while examining constitutional justice cases, formulating the provisions of the official constitutional doctrine and, finally, choosing a specific solution of the case, could or sometimes even should take into consideration soft law norms and the constitutional law development tendencies. The legal effects produced by the soft law was undeniably recognized in Garibaldi's case by the Court of Justice of European Union and the obligation for national courts implementing the EU law to pay attention to the EU's soft law norms was settled out. Most likely this obligation means that national courts have to prove that they are familiar with the appropriate soft law norms and after choosing their own solution meeting soft law norms or not, they should indicate the reasons of chosen different interpretation than recommended. It can be stated that the necessity to pay respect to the soft law in constitutional jurisprudence in appropriate cases is inevitable, if the Constitutional Court do not seek to isolate itself from European and international constitutional context. It is even more so, when there are no binding acts in the specific field of law. It goes without saying that the Constitutional Court would rely on such documents only if there will be no contradictions with the constitutional provisions and will correspond to the particularities of national legal system. Soft law can be perceived as the source of inspiration for judges examining constitutional justice cases and formulating constitutional doctrine and as the signpost for lawmaking subjects adopting binding acts. Sometimes soft law can help understand the complicated or unclear provisions of binding acts and foresee possible consequences, and sometimes it is the only legal act regulating some sort of relationships, especially when it concerns new challenges arising to the changing societies (such as technological progress that obviously will affect human rights and freedoms etc.). There is no reason to invent the new definitions pertinent to the constitutional justice case if they are enshrined in the legal act, even if it is soft, adopted by the competent institution of constitutional law. Soft law is often taken into consideration in the texts of constitutional judgments as a part of international context of the case, as explanatory documents of the notions or examined principles, as the strengthening piece of chosen reasoning and sometimes even as the part of interpretation of constitutional norms. The jurisprudence of Lithuanian, Latvian and Moldovan constitutional courts was analyzed in order to prove the expansion of the use of soft law and the necessity to continue to do so. The constitutional soft law regulates issues common to all the democratic states as it is based on universally recognized principles of democracy, the rule of law and protection of human rights. Adopted mostly by the European Commission "For the Democracy through Law" (known as Venice Commission) it proposes legal regulation and some solutions of the constitutional problems that are not adopted or implemented in the national legal system, but should be followed by all the states which have chosen the path of democracy. Therefore, it is not only possible, but sometimes it is necessaire to let the soft law guide. And as the constitutional soft law is based on the values that could be derived from almost all democratic constitution, the possibility that there could be contradiction with the national constitutional provision or that it could menace to the principle of the supremacy of the Constitution doesn't seem very plausible.
The ombudsman tradition originated in Sweden in 1809 and spread throughout the world in less than two hundred years. The progress of development of independent human rights institutions in the 20th century was remarkable. Since 1981, when the institution of Ombudsman for Children was established in Norway, more than 200 institutions have been created and exist today. They are of different forms, but share the same role: to ensure that governments and other state institutions, public and private bodies implement the Convention on the Rights of the Child. The Ombudsman (ombudsperson) is the key player in promoting and protecting children's rights and best interests. The main task of ombudsman institutions is to close the gap between the rights rhetoric and the realities of children's lives, ensuring that rights are translated into law, policy and practice. The author analyses the Norwegian model of a specialised ombudsman institution, as this model was influential in western European countries and Nordic countries with democratic governance and strong individual human rights traditions. On the other hand, the author examines the advantages and disadvantages of an inclusive model, which was chosen by some eastern European countries, often in the context of democratic transition and usually integrated in general (parliamentary) ombudsman institutions or human rights bodies. Bearing in mind that the integration of children's rights issues into a broad-based human rights institution may face particular challenges, the author concludes that every country must establish an effective independent institution for promoting and protecting children's rights and best interests.
The ombudsman tradition originated in Sweden in 1809 and spread throughout the world in less than two hundred years. The progress of development of independent human rights institutions in the 20th century was remarkable. Since 1981, when the institution of Ombudsman for Children was established in Norway, more than 200 institutions have been created and exist today. They are of different forms, but share the same role: to ensure that governments and other state institutions, public and private bodies implement the Convention on the Rights of the Child. The Ombudsman (ombudsperson) is the key player in promoting and protecting children's rights and best interests. The main task of ombudsman institutions is to close the gap between the rights rhetoric and the realities of children's lives, ensuring that rights are translated into law, policy and practice. The author analyses the Norwegian model of a specialised ombudsman institution, as this model was influential in western European countries and Nordic countries with democratic governance and strong individual human rights traditions. On the other hand, the author examines the advantages and disadvantages of an inclusive model, which was chosen by some eastern European countries, often in the context of democratic transition and usually integrated in general (parliamentary) ombudsman institutions or human rights bodies. Bearing in mind that the integration of children's rights issues into a broad-based human rights institution may face particular challenges, the author concludes that every country must establish an effective independent institution for promoting and protecting children's rights and best interests.
The conception of positive law at one ties the right with the law, i.e. formalization of law, determination of it. Just determined law can have its shape – the law in common sense. The State to the essence of positive law, as legal category, enters as the subject of lawmaking (natural law is changed to positive) and as guarantee of necessity of legal imperatives. The competence of natural law in this range restricts to declaring of humanistic ideas (legal ideas). It shows, which values should state turn to conventional regulation of behaviour and how much it can be limited. On the other hand, it is indicated, that the purpose of contemporary democratic state is not just reassurance of above-mentioned rights, because recently inthe society other important concerns for person are emphasized. The values of law are related with public interests. Western civilization and world-view orients to separate human needs, interests, his relations with other persons and their internecine services, cultural interchange. Human's personal and political rights and freedoms, his interests are the basic object of purpose and protection of modern democratic state.
The conception of positive law at one ties the right with the law, i.e. formalization of law, determination of it. Just determined law can have its shape – the law in common sense. The State to the essence of positive law, as legal category, enters as the subject of lawmaking (natural law is changed to positive) and as guarantee of necessity of legal imperatives. The competence of natural law in this range restricts to declaring of humanistic ideas (legal ideas). It shows, which values should state turn to conventional regulation of behaviour and how much it can be limited. On the other hand, it is indicated, that the purpose of contemporary democratic state is not just reassurance of above-mentioned rights, because recently inthe society other important concerns for person are emphasized. The values of law are related with public interests. Western civilization and world-view orients to separate human needs, interests, his relations with other persons and their internecine services, cultural interchange. Human's personal and political rights and freedoms, his interests are the basic object of purpose and protection of modern democratic state.
Meeting the competition's argument, though not incorporated into the Guidelines, in the author's opinion should be considered as one of the objective justification types, since, first, it was approved in the case-law, second, meeting competition may justify pricing and nonpricing abuses of dominant position if the undertaking is seeking to protect its own interests, and not to eliminate the competitors, doing so in proportion to the threat. The conditions for the use of meeting competition arguments are unreasonably narrowed in the Discussion paper and shift a difficult burden of proof on the undertaking concerned. The Commission's reform extended the concept of objective justification by officially adding to it the concept of efficiencies, which, until the reform, had an unclear status amongst the other types of objective justification—the objective necessity and meeting competition. However, the conditions for proving efficiencies are very strict and almost impossible to prove—they shift to the undertaking not only the evidential burden of proof, but also a part of the legal burden of proof, which shall be an exclusive competence of the Commission or other subject alleging the infringement of Article 102. In regard to this point, the conditions for proving the efficiencies, as specified in the Guidelines, shall be revised by the Commission.
Meeting the competition's argument, though not incorporated into the Guidelines, in the author's opinion should be considered as one of the objective justification types, since, first, it was approved in the case-law, second, meeting competition may justify pricing and nonpricing abuses of dominant position if the undertaking is seeking to protect its own interests, and not to eliminate the competitors, doing so in proportion to the threat. The conditions for the use of meeting competition arguments are unreasonably narrowed in the Discussion paper and shift a difficult burden of proof on the undertaking concerned. The Commission's reform extended the concept of objective justification by officially adding to it the concept of efficiencies, which, until the reform, had an unclear status amongst the other types of objective justification—the objective necessity and meeting competition. However, the conditions for proving efficiencies are very strict and almost impossible to prove—they shift to the undertaking not only the evidential burden of proof, but also a part of the legal burden of proof, which shall be an exclusive competence of the Commission or other subject alleging the infringement of Article 102. In regard to this point, the conditions for proving the efficiencies, as specified in the Guidelines, shall be revised by the Commission.
This master thesis provides an analysis of the legality of preemptive self-defence under international law. In assessing the lawfulness of preemptive self-defence two basic sources of international law: customary and treaty law are examined. The analysis of the UN Charter rules showed that there is strong disagreement between scholars regarding the legality of anticipatory self-defence. However, the term "armed attack" in article 51 UN Charter should embrace imminent threats. Two basic reasons are: the advent of weapons of mass destruction (WMD) and new methods of warfare; the inherent right of anticipatory self-defence was not exhausted after the adoption of the UN Charter. The examination of customary international law showed that the Caroline doctrine allows states to act in anticipation of an armed attack if the requirements of necessity and proportionality are fulfilled. In addition, the analysis of state practice and opinion juris prior and after September 11, 2001, revealed that anticipatory self-defence is not prohibited. The conclusion is maid that the right of anticipatory self-defence, if requirements of necessity and proportionality are fulfilled, is not illegal under international law. In contrast, the analysis of the UN Charter rules showed that preemptive self-defence against perceived threats is not legal under the UN Charter, because there is no actual armed attack or imminent threat against which state can legally defend itself. In addition, preemptive use of military force against emerging threats has no safeguards. The examination of customary law prior and after September 11, 2001, revealed that a new rule, which would allow states to use military force in self-defence, was not created, because there is a lack of opinio juris and state practice. The conclusion is drawn that preemptive use of force is not legal under international law.
This master thesis provides an analysis of the legality of preemptive self-defence under international law. In assessing the lawfulness of preemptive self-defence two basic sources of international law: customary and treaty law are examined. The analysis of the UN Charter rules showed that there is strong disagreement between scholars regarding the legality of anticipatory self-defence. However, the term "armed attack" in article 51 UN Charter should embrace imminent threats. Two basic reasons are: the advent of weapons of mass destruction (WMD) and new methods of warfare; the inherent right of anticipatory self-defence was not exhausted after the adoption of the UN Charter. The examination of customary international law showed that the Caroline doctrine allows states to act in anticipation of an armed attack if the requirements of necessity and proportionality are fulfilled. In addition, the analysis of state practice and opinion juris prior and after September 11, 2001, revealed that anticipatory self-defence is not prohibited. The conclusion is maid that the right of anticipatory self-defence, if requirements of necessity and proportionality are fulfilled, is not illegal under international law. In contrast, the analysis of the UN Charter rules showed that preemptive self-defence against perceived threats is not legal under the UN Charter, because there is no actual armed attack or imminent threat against which state can legally defend itself. In addition, preemptive use of military force against emerging threats has no safeguards. The examination of customary law prior and after September 11, 2001, revealed that a new rule, which would allow states to use military force in self-defence, was not created, because there is a lack of opinio juris and state practice. The conclusion is drawn that preemptive use of force is not legal under international law.
This master thesis provides an analysis of the legality of preemptive self-defence under international law. In assessing the lawfulness of preemptive self-defence two basic sources of international law: customary and treaty law are examined. The analysis of the UN Charter rules showed that there is strong disagreement between scholars regarding the legality of anticipatory self-defence. However, the term "armed attack" in article 51 UN Charter should embrace imminent threats. Two basic reasons are: the advent of weapons of mass destruction (WMD) and new methods of warfare; the inherent right of anticipatory self-defence was not exhausted after the adoption of the UN Charter. The examination of customary international law showed that the Caroline doctrine allows states to act in anticipation of an armed attack if the requirements of necessity and proportionality are fulfilled. In addition, the analysis of state practice and opinion juris prior and after September 11, 2001, revealed that anticipatory self-defence is not prohibited. The conclusion is maid that the right of anticipatory self-defence, if requirements of necessity and proportionality are fulfilled, is not illegal under international law. In contrast, the analysis of the UN Charter rules showed that preemptive self-defence against perceived threats is not legal under the UN Charter, because there is no actual armed attack or imminent threat against which state can legally defend itself. In addition, preemptive use of military force against emerging threats has no safeguards. The examination of customary law prior and after September 11, 2001, revealed that a new rule, which would allow states to use military force in self-defence, was not created, because there is a lack of opinio juris and state practice. The conclusion is drawn that preemptive use of force is not legal under international law.
