Kyiv-Mohyla Law and Politics Journal

European Union Labor Law and Its Harmonization into National Law: Estonian Experience and Current Situation

Gaabriel Tavits — 2024-12-30

In order to ensure uniform applicaCon of European Union law, member states must adopt European Union law. This can be done in different ways: harmonize European Union direcCves; implement European Union regulaCons; implement CJEU judgments. The European Union leaves the member states with the opCon of deciding how to implement EU law, either by harmonizing direcCves word for word or by establishing a legal framework only to implement the purpose of the direcCve.
This article analyzes the application of European Union law to labor relations based on Estonian law. First, the competence of the European Union to establish legal norms in labor relations is analyzed. In the following, the personal scope of the labor law regulation of the European Union is analyzed. Finally, individual examples of how Estonia has applied European Union law to various aspects of labor relations are analyzed.

Invocation of International (Treaty) Law Principles Against an Aggressor State: Suspension, Restriction of Membership Rights, Expulsion?

Indrė Isokaitė-Valužė — 2024-12-30

The research aims at the invocation of the main principles of international law and treaty law, in particular, pacta sunt servanda, bona fide, jus cogens and the rule of law, in order to support the right to suspend, limit or restrict membership rights of Russia in treaties and international organizations in the context of aggression against Ukraine. The authors seek to demonstrate that the principles allow for certain measures to be taken against a State manifestly and flagrantly violating international law and to present this principle-based reasoning with a reference to the United Nations and the UN Charter. The contents of the listed principles are revealed demonstrating that they contain specific countermeasures regarding treaty participation and organization membership that may be invoked against the aggressor State. The authors emphasize that international law has always evolved around unprecedented events following universal legal values, and aggression against Ukraine obliges members of the international community to undertake responsibility and use international law solutions, including invocation of international (treaty) law principles in order the aggressor State does not benefit from grave breaches of international law and progressive development of international law is being ensured.

Peremptory Norms of General International Law (Ius Cogens) and Russia’s Aggression Against Ukraine

Felix Herbert — 2024-12-30

Russia’s war against Ukraine violates several ius cogens norms, especially the prohibition of aggression (I.). Though ius cogens is said to protect fundamental values of the international community, it is not immediately apparent how it provides protection against an aggressor state. The article therefore analyses the implications of ius cogens for Ukraine, Russia, and the international community. The legal consequences of ius cogens can be divided in two sets, one concerning the invalidating effect of ius cogens on conflicting legal acts, the second concerning state responsibility. The first set raises the pivotal question under what circumstances a potential Russo-Ukrainian peace settlement would be invalid (II.). The second set of legal consequences engages the international community by conferring obligations on all states in relation to the war (III.). This includes the obligations of non-recognition and nonassistance in situations created by serious ius cogens breaches, and the obligation to cooperate to end such breaches. While the customary status and content of these obligations is not fully settled, state practice in response to the war contributes to crystallizing and clarifying these obligations to some extent. Therefore, despite Russia’s ongoing aggression, international practice responding to the war reinforces ius cogens (IV.).

Ukraine’s Accession Process to the EU: Judicial Reform in the Focus

Mykola Kolotylo — 2024-12-30

This article scrutinizes the bilateral relations between the EU and Ukraine in the light of granting the candidate status and commencing the accession process. Firstly, it analyses the main legal frameworks existing prior to Ukraine’s application for membership. Further, it explores the main reflections on Ukraine’s application and the possible scenarios for the accession process. The reform of the judiciary is considered closely as a main condition within the accession process. It is argued that the fulfillment of the conditions prescribed in the European Commission’s opinion in 2022 and assessment report in 2023 relating to the judiciary have to be considered as a first step of successful negotiations process. Hence, the complex reform of the judiciary serves as a cornerstone in the accession process.

Externalized Outcasting of Russia: An Interdisciplinary Analysis

Dmytro Soldatenko — 2024-12-30

Embracing a wide understanding of law enforcement, this paper examines the external outcasting regime imposed on Russia through various unilateral measures. This study identifies key aspects of the outcasting regime, including its legal basis, manifestations, timeline, and configuration. The US sanctions documents are examined as a portion of state practice related to Russia's outcasting. The unique configuration of the outcasting regime is identified: permissive, nonadjudicated, non-in-kind, proportional, and inclusive of 3rd parties. Finally, the outcasting of Russia is situated into a wider historical perspective as a response to the UN’s internal enforcement mechanisms reaching their limits.

Editorial

Roman Petrov — 2024-12-30

Visions of Russia’s Imperial Future: The Russian Discourse on the Restoration of the USSR or a Russian Empire After 1992

Martin Malek — 2024-12-30

Visions of Russia’s Imperial Future: The Russian Discourse on the Restoration of the USSR or a Russian Empire After 1992

Death Penalty as Applied to the States: The View Through Legal Certainty as an Element of the Rule of Law

Ievgen Zvieriev — 2024-12-30

Death penalty keeps being common and widespread punishment in certain parts of the world. Despite the worldwide trend aimed at abolition of death penalty, numerous scholars and practitioners keep arguing about the status of this punishment, as well as its pros and cons. However, the approach of death penalty applicable to states has not been in the mainstream research despite states having collapsed or ceased existence in multiple ways throughout all human history. The widespread application of the rule of law principle was one of the major causes of the abovementioned trend on limiting and abolishing death penalty worldwide. Numerous researchers have assessed rule of law impact on death penalty as attributed to humans. Nonetheless, research on death penalty as attributed to states remains novel. This paper aims to establish major points this research could be based upon by attempting to compare death penalty as attributed to humans’ features with those of death penalty attributed to the states. One of the most important major points is the definition of death penalty as applied to the states which this paper also makes an attempt to provide. Rule of law does provide assistance in that matter, namely legal certainty as one of major rule of law elements. The paper tries to assess both the death penalty as attributed to humans and death penalty as attributed to the states from legal certainty viewpoint through its elements: clarity and foreseeability of laws and regulations, consistency in application, due process, transparency, and accountability. The paper concludes with the idea that death penalty as attributed to the states does de facto exist as a concept and may be outlined within the scope of public international law and viewed upon through legal certainty as an essential element of the rule of law.

Bank Uncertainty Regarding Inventory Collateral in Indonesian MSMEs Loans

Trisadini Prasastinah Usanti — 2024-12-30

Purpose: An obligation in providing easy access to funding for MSMEs creates a dilemma for banks when the collateral is in the form of inventory objects. When MSMEs provide collateral in the form of inventory objects, it can cause uncertainty for banks as collateral recipients. This research examines legal protection efforts for banks when MSME credit guarantees are in the form of inventory objects. Methodology: The research method is normative juridical with analytical descriptive research, statute, conceptual, and case approaches. Results: The results showed that the existence of a norm in Law 42/1999, which allows fiduciary providers to sell inventories to third parties, results in legal uncertainty and risks to the bank's position as a preferred creditor. The fiduciary giver does not exchange inventory items that have been sold or traded but at a lower value. It is very detrimental to the bank if it is accompanied by an event of default from the debtor. The bank cannot sell the collateral object considering that the fiduciary giver has transferred the collateral object. Conclusion: Therefore, efforts are needed that can be made by banks to minimize these risks by asking for a personal guarantee (borg) as support for MSME credit.