Proportionality vs. legalism

This article uses empirical data to analyse the meaning of rule of law with Chinese characteristics. It compares rule of law data on China, Hong Kong and Singapore from the World Justice Project and finds patterns of more limited protection of individual rights and fewer limits on governmental powers. It then uses Geert Hofstede’s cultural dimensions to consider whether those patterns are related to common cultural characteristics. It finds low scores on the cultural value of individualism in those three jurisdictions are correlated with lower protection for individual rights, and that high scores on Hofstede’s Power Distribution Index are inversely correlated with strong governmental powers. It concludes that rule of law with Chinese characteristics means a version of rule of law with more limited protections for individual rights and with strong governmental powers with fewer legal limitations.

In this chapter, I present a brief and necessarily simplified survey of China's legal theories and systems from the pre-Han era to the beginning of the reform era in 1978. The purpose is threefold. First, for many rule of law means a Liberal Democratic rule of law. It is difficult for many modern Westerners in particular to imagine rule of law being embedded in a nonliberal context, and as a result, for law to play a different role in society, such as state-strengthening rather than the protection of individual rights. Yet the logic and appeal of the Statist Socialist, Neoauthoritarian, and Communitarian models are rooted in China's own traditions. By exploring the historical, political, and philosophical backdrop against which reforms are occurring, it is easier to understand how rule of law in China could develop along a different path, and to appreciate why it is unlikely that reforms are likely to lead to a Liberal Democratic rule of law.

As nations expand the telecommunications interception and access powers of their law enforcement agencies to address heightened threats to national security and accelerating technological convergence, the proper application of the proportionality principle is becoming an increasingly contentious issue. The ‘proportionality principle’ in telecommunications law mandates the weighing of a likely threat to public security against the potential violation of individual rights so as to ensure that the intrusive impact of a particular interception and access activity is reasonable proportionate to the potential outcome sought. The reform discourse of recent years has largely focused on expanding investigative powers, to the possible detriment of the protection of individual rights. Whilst the present environment makes such a focus wholly understandable, the present paper considers potential legislative and policy measures that could strengthen the proportionality principle in the telecommunications regulatory framework to support a more precise calibration of the relevant competing public and private interests. As Australia has recently undertaken a comprehensive review of its telecommunications access and interception laws, commencing with a 2013 referral to its Senate Committee and culminating in a 2015 law reform report, the article focuses on that nation’s experience. The analysis is, however, placed within an overarching public policy framework to ensure that the discussion is of relevance to nations around the world who are similarly engaged in telecommunications law reform.

In general, there are judicial and extrajudicial ways to protect human rights in the EU. Judicial protection of human rights from violations by international institutions falls within the jurisdiction of the Court of Justice. Extrajudicial institutions that protect the rights of the individual include the following: the Ombudsman of the European Union, the EU Agency for Fundamental Rights, and EU bodies such as the European Commission and the Council of the EU. It should be noted that the functions of these bodies in the field of individual rights are to protect the rights of the individual from violations by the bodies of the European Union and not the EU Member States. Extrajudicial bodies responsible for the protection of individual rights should be distinguished as follows. Depending on the purpose of education: specialized institutions for the protection of individual rights: the Agency for Fundamental Rights of the European Union, the Ombudsman of the European Union, and bodies of general competence: the European Commission or the Council of the EU. According to the subject of the appeal to the Institute for Protection of Rights: the Ombudsman of the European Union, for appeals of individuals, the Agency for Fundamental Rights of the European Union, which provides for appeals of certain bodies of the European Union and the Council of the EU. The Council of the European Union is the main body of the EU in terms of performing various functions. It is considered the main rule-making body of the EU. It is important to note that the issue of protection of individual rights is not a priority, but only one of the functions of this EU body. The main executive body of the EU is the Commission of the European Union, which performs the function of investigating illegal actions and can impose penalties on violators. The object of illegal actions may be an offense by a Member State of the requirements imposed on it by the EU's founding treaties, including human rights offenses. The basis in this process, within the framework of the investigation, is the right of both natural and legal persons to apply to the Commission for illegal actions committed by a Member State. The human rights procedures used by the Commission should be considered quite effective, as they combine both information and representation. Since the entry into force of the Maastricht Treaty, the EU has established a mechanism for the protection of human rights, namely the Ombudsman of the European Union.

In this article we propose the establishment of a Drone Court to review Executive Branch drone decisions prior to their execution. That said, we harken back to Chief Justice Earl Warren’s wise words in Miranda v Arizona in which he called on, if not challenged, Congress and others to recommend alternative means to protect those subject to police interrogations. In the spirit of Chief Justice Warren’s entreaty, we are not wedded to the establishment of a Drone Court. Moreover, we do not claim to have all of the answers. We are, however, wedded to the creation of a process that will ensure that U.S. counterterrorism be conducted in accordance with the rule of law and the principles of morality in armed conflict which can effectively and concretely be monitored and measured. In other words, we advocate for the use of drones falling into alignment with the precepts of legitimacy explored in this volume. We present our proposal in the context of two realities that must be noted for the record. The first reality is that since the horrific attacks on September 11, 2001, the United States has struggled, as it never has in its history, with finding the appropriate balance between the protection of individual rights and the demands of national security. Repeatedly, as we note below, particularly in the area of surveillance, national security has trumped individual rights leading to abuses that have shocked the nation and led to calls for reform. Those abuses have occurred despite the formal existence of institutions intended to maintain the balance of power among the branches of government. Thus, the Foreign Intelligence Surveillance Court (FISC) was established pursuant to the Foreign Intelligence Surveillance Act (FISA) supposedly to insure that Executive Branch decisions with respect to surveillance were carried out in a way to protect the rights of those surveilled. The reality, however, is that fundamental flaws in the structure of the FISC, detailed more fully below, have turned the court more into a rubber stamp of Executive decision-making than a constitutional buffer between citizens and Executive Branch abuses that FISA sought to eliminate. Indeed, the mere existence of FISC has been cleverly used by the Executive branch to bolster claims that the massive surveillance programs disclosed since 9/11 pass constitutional muster – after all, goes the argument, the FISC said it was OK! We are under no illusion that the same process might not occur were a Drone Court to be established. It too, if not constructed properly with safeguards to maintain its independence, could be hijacked and used as a shield for abusive Executive decision-making rather than as a sword to insure appropriate checks on the Executive Branch. The task will not be easy. The lessons learned from past abuses must be incorporated into the Drone Court structure and the Court must have sufficient power to insure that the Executive responds in good faith to the requirements imposed on it. As we make our proposal, we recognize that such a structure has yet to be created in America’s 250-year struggle to find the appropriate balance between individual rights and national security. We believe, however, that if we keep that struggle in mind, along with past dismal failures, we may have the best hope of succeeding in the future. It is with that mindset that this proposal is offered, knowing the perils that may exist, including the misuse by the Executive Branch of a judicial order sanctioning its decision-making in the name of national security.

Background: This research paper examines the legality of espionage during peacetime under the rules of international law. To address this issue, the paper focuses on several relevant international law rules, including the obligation to respect the sovereignty of other states and the prohibition on intervention. Although espionage is a longstanding instrument of statecraft essential for safeguarding national security, it occupies an uncertain legal position. International legal frameworks, including the UN Charter and customary international law, establish obligations such as the respect for state sovereignty and the prohibition of intervention, which espionage activities frequently challenge. The growth of modern surveillance capabilities, especially in the cyber domain, further complicates the legal and ethical boundaries of espionage. Methods: The study draws upon relevant international rules, such as the UN Charter and customary international law, as well as recent rulings by the International Court of Justice (ICJ) and the European Court of Human Rights (ECtHR), which can serve as a foundation for developing regulatory frameworks for espionage operations and surveillance activities. The study adopts a doctrinal legal research approach by systematically analysing primary sources of international law, including treaties, customary law principles, and jurisprudence from the ICJ and the ECtHR. It also incorporates a comparative review of state practice and relevant academic commentary to assess whether existing legal norms adequately regulate espionage activities during peacetime. Results and Conclusions: The findings indicate that espionage occupies a legally ambiguous space, particularly concerning the applicability of core principles of non-intervention and state sovereignty—especially in the cyber domain. In parallel, privacy has become enshrined in emerging human rights law, and legal safeguards around state surveillance have been introduced, emphasising proportionality, accountability, and supervision. Still, espionage operates in a highly nuanced legal and ethical territory that is neither wholly abhorrent nor entirely permissible. This contradiction reflects the ongoing tension between the challenges of balancing national security and the protection of individual rights. While espionage is widely acknowledged as vital to state security, international law does not explicitly ban it despite its potential to violate sovereignty and the principle of non-intervention. However, international law—through its emphasis on territorial integrity and sovereign equality—does not impose certain restraints on espionage activities. The study concludes that although espionage remains a multifaceted and indispensable component of state actions, it should not violate the principles and laws of sovereignty, human rights, or the broader framework of international law during peacetime. Legal and ethical ambiguity persists, necessitating the development of clearer regulatory frameworks that strike a balance between legitimate intelligence gathering and respect for sovereignty and individual rights. Ultimately, the research underscores that intelligence activities should not be permitted to undermine the stability of the international legal order or erode fundamental human rights protections.

With the will to establish the rule of law, since the end of the 1980s both ideological and cultural changes were made in the Chinese legal system: administrative legislation no longer aims only to guarantee the efficiency of the administration but increasingly to protect individual rights. From the beginning of the 1990s, a series of laws and regulations were instituted regarding relations between citizens and the administration. Among these texts, the Administrative Litigation Law, described as a ‘Silent Revolutionary Act’, was the most decisive step in the development of the protection of Individual rights facing administrative authorities. With the amendment of 2014, the legislator tends to make the Administrative Litigation Law into a real instrument for the protection of individual rights. Beyond the legislative protection, doctrinal and political principles can also condition administrative activities, such as the principle of legality. Most of the principles known to Western systems can be observed in the Chinese notion of legality.

The rapid pace of digital innovation presents significant challenges to existing privacy laws, necessitating a delicate balance between technological advancement and the protection of individual rights. This paper explores the evolving landscape of privacy law, highlighting the tension between fostering digital innovation and ensuring robust privacy protections. Through a historical overview, the paper traces the development of privacy laws from their inception to the current global regulatory framework, including key legislations such as the General Data Protection Regulation (GDPR) and the California Consumer Privacy Act (CCPA). It delves into the challenges posed by emerging technologies, such as artificial intelligence, the Internet of Things (IoT), and big data, and examines case studies that illustrate these challenges. The analysis reveals a dynamic interplay between innovation and privacy, where stringent regulations may impede technological progress, while lax privacy protections may undermine individual rights. The paper proposes legal reforms and innovative approaches to privacy protection, advocating for a flexible legal framework that can adapt to technological advancements while safeguarding privacy. The conclusion underscores the importance of ethical considerations in shaping future privacy laws and the need for a balanced approach that supports both digital innovation and the protection of individual rights.

The Constitution of the Republic of Albania has provided as government order the Parliamentary Republic. This means that our state has decided to support a free democratic regime, excluding any arbitrary or authoritarian rule. Among others, one of the essential elements of the functional democracy is the recognition and enforcement of the requirements of the rule of law’s principle. The rule of law is a universal principle. The essence of this principle is to guarantee the fundamental rights and freedoms of individuals. According to the aforementioned principle, the state has the responsibility to act appropriately to safeguard the rights of individuals, which fulfills through the establishment and functioning of the courts. The rights of individuals have subjective character. Violation of those rights, despite the reason, entitles a person to approach the competent authorities to require restitution, or restore them. During the exercise of their authority, these bodies should effectively protect the rights of individuals without prejudice to their rights (Article 1/c of the Law No. 49/2012 “For Administrative Court in Albania”). The most important thing that we have to underline is the fact that the competent authorities (administrative courts), during exercising their competency for defending in effective way the rights of individuals, must apply the law in a right manner, in order not to prejudice the rights of other individuals. This paragraph shall constitute the purpose and objectives of this paper The methodology used is qualitative, comparative and analytical between all the principles of administrative trial, especially in Albania. This paper will serve to other studies of the field ongoing since the Administrative Court is a new court in the Republic of Albania. And for that fact, books or publications in this field are few in number in Albania. DOI: 10.5901/mjss.2015.v4n1p389

The article is devoted to the study of the legal nature of access to justice as a fundamental human right in the context of its evolution towards a modern understanding as a comprehensive legal category. The article outlines the role of the right to access to justice as a foundational element of a legal and social state, explained by the interrelation and interdependence of access to justice with access to law, justice, and the rule of law. It is established that the close relationship between the rule of law, access to justice, and fundamental human rights positions access to justice as a leading principle within the legal system. The author concludes that the dynamic and generative nature of the right to access to justice serves as a means of accessing legal protection, guaranteeing the right to a fair trial. Access to justice provides and expands opportunities for the realization of other rights and guarantees, facilitates their emergence and transformation, and thus, the effectiveness of access to justice becomes a key criterion for ensuring the observance of other rights and legal principles. At the same time, the author emphasizes that the value of the legal nature of the right to access to justice lies in the combination of its formal and real components, objective and subjective law, as well as its material and procedural essence. Thus, the concept of access to justice envisions providing individuals with the opportunity to play an active role in resolving their legal issues, while the state is reoriented toward community involvement to achieve not only individual but also socially just outcomes of justice. The article concludes that the access to justice is an open legal concept and a priority area of state activity aimed at the comprehensive normative regulation of the justice system and related legal institutions, as well as the practical observance of the values, principles, and goals of justice. The outcomes of this process determine, in particular, the effectiveness of judicial protection of individual rights and freedoms, and the overall state of social justice.

Marriage registration plays a central role in the legal system and government administration to record and protect individual rights while managing marital status within a society. This research delves into the significance and impact of marriage registration in the context of civil law and public administration. Through the analysis of marriage regulations, registration procedures, and their legal implications, this study identifies the role of marriage registration in acknowledging the rights and obligations of spouses, as well as protecting the interests of children. The research also explores the evolution of marriage registration in response to social and technological changes, along with its implications for accessibility and data security. The research findings highlight the importance of efficiency and transparency in the marriage registration process to ensure the protection of individual rights and provide a strong foundation for law enforcement. Further understanding of the role of marriage registration can serve as a basis for improving marriage administration systems and supporting policy reforms that promote justice and legal security.

The article presents a review of the judicial decisions of the Supreme Administrative Court in the field of corporate income tax in 2019-2022. It emphasises the importance of the Supreme Administrative Court’s judicial decisions in shaping and interpreting tax law. Tax legislation and the interpretation of tax law cannot be fully considered without taking into account the importance of the judicial decisions of administrative courts. Court judgments, although they are not sources of law, have a significant impact on the structure of corporate income tax. The review of the case law of the Supreme Administrative Court is therefore crucial in this respect for understanding its impact on the structure of tax law and shaping the tax policy of the state. The analysis of judicial decisions shows a desire to extend the protection of individual rights and tax justice, as well as limit the practices of tax authorities and restore unjustly deprived rights of taxpayers.

Entry.With confident steps, Ukraine is purposefully moving towards European integration.Socio-ecological-economic development of the country in the concept of national security consists of: ecological and natural security; social and legal security; financial and economic security.Referrals are constantly in need of effective updating and control (fig.1).Environmental safety focuses on the careful use of natural resources and strict control over the state of climate and water.Social and legal security is aimed at the social capital of the person himself, protection of individual rights, stability and raising the level of economic wellbeing and social well-being of the population (protection of the consumer market, monitoring of purchasing power, price regulation etc.).Financial and economic security contributes to the development of the country and is one of the main generators of European integration.The direction is responsible for: foreign economic security; financial and investment security;

Background: The right to a fair trial is a critical part of national and international human rights frameworks. To protect this right, the rule of law should be implemented. Currently, the approach to trying individuals accused of grave international crimes, including genocide, is different, which gives an impression of inequality. For instance, the person accused of the al- Anfal genocide was tried by a national court and sentenced to the death penalty, whereas the person accused of the Srebrenica genocide was sentenced to life imprisonment by an international tribunal. Not to mention the lack of respect for the defendants’ rights during the al-Anfal genocide’s trial, including the principle of due process and the right to a fair trial. The main reason for the differing decisions in these two identical cases involving genocide arises from their trials in different courts and under different legal frameworks. This paper addresses the significance of these challenges for equality under international law and emphasises the difficulties in securing fair trials by examining these examples. Methods: This article analyses the application of the right to a fair trial for international criminals by using doctrinal methods. Specifically, it adopts a qualitative approach to examine relevant international statutes. To illustrate, the research chose to analyse and compare two case studies: the trial of Ali al-Majid, the leader of the al-Anfal genocide, and Ratko Mladic, the leader of the Srebrenica genocide. This comparison focuses on aspects such as judicial independence and overall fairness in the trials of war criminals. It involves desk-based research and data that are collected through the analysis of relevant literature from primary sources, such as international law instruments and secondary sources, including books and academic articles, about the inconsistency of fair trial standards in different judicial contexts. Results and conclusions: Different approaches in trials for similar crimes threaten global justice and the protection of individual rights and freedoms. One practical way to address this issue is to bring those accused of grave international crimes, including genocide, to appear before the International Criminal Court (ICC), providing fair trials and punishments. However, this article demonstrates that the doctrine of state sovereignty may pose challenges to creating a uniform framework for the prosecution of war criminals. Additional challenges arise with the existence of different legal and political systems across the world. The article argues that to ensure a fair trial and maintain international peace and security, it is necessary to overcome these challenges and adopt a uniform framework for the prosecution of those accused of grave international crimes. The ICC can be the solution. The international community can overcome these challenges by encouraging all countries to join the Rome Statue and give it the sole jurisdiction over grave international crimes such as genocide, war crimes, or crimes against humanity.

The objective of the research was to identify threats to individual rights in criminal proceedings during martial law. The research involved system methods, descriptive analysis, systematic sampling, doctrinal approach and forecasting. Martial law introduced as a result of armed conflict carries important implications for criminal justice. Ensuring the observance of individual rights in criminal proceedings during this period applies to several crimes, the common feature of which is the time of their commission. The classification of subjects of prevention of infringement of such rights is presented. The prospects for improving the protection of individual rights in criminal proceedings require international assistance in the detection of crimes related to the armed conflict. It is concluded that ensuring the observance of individual rights in criminal proceedings during martial law requires combining the efforts of national and international specialists. Prospects for improving this process envisage international assistance with increased use of its results as evidence in national and international courts. It is appropriate to develop international recommendations for national law enforcement agencies and judicial bodies.