ISSUES OF THEORY OF INTERNATIONAL LAW
INTRODUCTION. Over the past decades under the influence of demographic processes, economic shocks, morbidity increase and other systemic problems a whole spectrum of threats to health has gradually formed at the international level, characterized by severe socio-economic consequences for each country regardless of the welfare level. Today, the challenges of ensuring universal coverage of services, access to safe, quality medicines, control of health care costs, effective response to health emergencies, antibiotic resistance are not limited by the WHO regulations, but are included in the agenda of the UN, ILO, FAO and other intergovernmental organizations. The need to form a unified approach to regulate activities of numerous participants in international healthcare regulation has served as an incentive for the gradual development of international legal regulation of the field of health protection, becoming the subject of study by leading legal scholars, as well as international organizations. The presented article provides a comprehensive analysis of the main historical stages in the development of international cooperation in the field of health protection, which served as the basis for the formation of international health law in the field of health protection as a new branch of international law. Special attention in the article is paid to the assessment of the role of globalization processes in changing the nature of threats to human and public health and their impact on the formation of global health governance concept. Based on the systemic problems that emerged during the COVID-19 pandemic, the author formulated the main directions for improving the international legal regulation of the health sector.
MATERIALS AND METHODS. During article preparation the following document were studied: acts of a universal and regional nature, resolutions of international organizations, legal positions of UN specialized agencies, as well as professional scientific associations. The theoretical basis of the research are the scientific works of national and foreign scientists in the field of international law and international relations in the field of health protection. The article was prepared using the general scientific method of cognition, including the formal logical and situational method and private law methods, such as comparative, historical and formal legal methods.
RESEARCH RESULTS. Within the framework of the study, a conclusion was formulated about the formation of "international health law" as a new branch of international law, uniting international legal norms and principles governing the relations of subjects of international law, as well as other participants in international relations in the field of human health. In the work, the author presents the main sources of "international health law" and formulates the subject of regulation of this branch of law.
DISCUSSION AND CONCLUSIONS. Describing the features of international cooperation in the field of health protection, expressed in an increase in the number of involved international organizations and other participants which are not subjects of international law, the author substantiates the formation of the concept of global health management and analyzes the main scientific publications in this area. Having studied the nature of health threats that have formed over the past decade under the influence of globalization processes, as well as the systematic problems of international cooperation demonstrated by the coronavirus pandemic, the authors emphasize the need to implement the repeatedly proposed initiative to develop a universal act that forms the basis of international legal regulation of health protection.
INTERNATIONAL ENVIRONMENTAL LAW
INTRODUCTION. This scientific article discusses the reaosns for inefficiency (“impotence”) of modern environmental law as a normative reaction to the “destruction of Nature”. The scope of the destruction of Nature has been broadening. The environmental protection law has thus not influenced the resurrection of “destroyed Nature”.
MATERIALS AND METHODS. Consistent with explanatory and theory–building research, the methods used are those of historical legal research as well as general scientific methods, such as analysis, synthesis, analogy, description, and deduction.
RESEARCH RESULTS. The essential reasons for the current excessiveness (intemperance) of man's interaction with Nature (the reasons for the “destruction of Nature”) and/or reasons for the inefficiency of the modern environmental law should be sought for in the dominant anthropocentric cultural paradigm of the western cultures oriented towards an un-limited material progress. If anthropocentrism (exploitativeness) as the basis of human utilitarian interaction with nature has led to the “destruction of nature,” there is no doubt that the ecological reason remaining within the anthropocentric construction of Nature can not lead to its “resurrection”. Only the setting-up of the ecocentric construction of Nature may lead to the “resurrection” of Nature. This orientation must be followed by the nomos of the western cultures. A new law of nature on the basis of the new, ecocentric ontology and ethics is therefore necessary.
DISCUSSION AND CONCLUSIONS. In this article, the basics of a new ecocentric legal philospohy as the foundation of modern environmental law have been proposed. The scientific realisation of man's equality in the network of co-dependent natural entities in the last decades shows man his initial position – that is his (equal) postition in Nature. The determination of the rules of conduct which man must respect in interaction with Nature implies an expansion of the idea of law itself (justice and correctness) towards the interaction between man and Nature and not only the interaction within human community. Consequently, the economic interaction has to be maintained within the framework ensuring the vitality of other biotic communities. Also, incorporation of Nature in the very essence of law inevitably triggers a redefinition of legal values. The natural equilibrium, i.e., the equilibrium of life (including human life) becoming a legal value, we could speak of the expansion of the legal subject, i.e. the expansion of values which are the subject of legal protection. The initial position of the natural equilibrium addresses the issue of relationship of the new legal value towards the existing fundamental legal values of the western cultures. The enforcement of the maintenance of natural equilibrium may also demand a limitation of another legally protected value, for example, the right to the freedom of movement or some other human right. The new value, i.e., the maintenance of natural equilibrium, must be incorporated in the “contracts of statehood”, that is in the constitutions of the western countries as one of main legal values, next to “freedom”,“democracy” and “private property”. The entry of Nature in the western (legal) value system is a conditio sine qua non for an efficient change in the legal order and, most importantly, for a change in man's attitude towards Nature in everyday's life.
AIR LAW
INTRODUCTION. Based on the analysis of documents and practice of numerous regional international organizations and other present-day forms of regional interstate cooperation in the area of aviation safety and aircraft accident investigation the article examines different international legal issues arising out of such cooperation, including, in particular, the legal nature, powers and membership of these regional international organizations.
MATERIALS AND METHODS. The present research has been conducted on the basis of international air law treaties, constituent instruments and decisions of various regional international organizations, the ICAO documents, as well as the works of Russian and foreign international law experts. The methodology of the research is based upon general scientific and special methods, including dialectical method, methods of analysis and synthesis, deduction and induction, comparative legal method.
RESEARCH RESULTS. On the basis of his research the author has been able to identify and classify all presentday forms of regional interstate cooperation in the area of aviation safety and aircraft accident investigation, define the legal nature of such forms, examine theoretical and practical international legal issues relating thereto as well as propose recommendations aimed at resolving these issues.
DISCUSSION AND CONCLUSIONS. The advantages and the important role of regional cooperation of States in the area of aviation safety oversight and aircraft accident investigation are underlined in the article. However, despite the importance of such cooperation for enhancement of aviation safety, currently its development depends upon the successful resolution of the following problems: – improvement of international legal framework (e.g., international treaties, decisions of international organizations etc.), which governs establishment and functioning of aviation safety oversight and aircraft accident investigation regional international organizations and bodies, in particular, with the aim to expand their powers to perform more complex and important functions in the area of aviation safety oversight and accident investigation for their Member States (e.g., certification of aeronautical products and other civil aviation facilities, conducting full accident investigation etc.); – ensuring more sustainable funding for aviation safety oversight and aircraft accident investigation regional international organizations and bodies; – training of bigger number of aviation professionals performing inspectorial functions in the area of aviation safety oversight as well as aircraft accident and incident investigation functions; – limitation of cases of simultaneous membership of the same States in several aviation safety oversight and aircraft accident investigation regional international organizations. Resolving the problems mentioned above, in particular, on the basis of recommendations proposed in this article, will allow to increase the efficiency and attractiveness of different forms of regional cooperation in the area of aviation safety oversight and aircraft accident investigation for bigger number of States, as well as help to improve regional cooperation of the Russian Federation within the framework of the Eurasian Economic Union and the Commonwealth of Independent States in this area.
INTERNATIONAL FIGHT AGAINST CRIME
INTRODUCTION. The legal saga of the prosecution of Adolf Eichmann, one of the most wanted war criminals and chief “architect” of the Holocaust, raises many ethical, political and legal problems. The Eichmann trial is unprecedented in the long history of international criminal law for many reasons. Although many leaders of Nazi regime were put on trial at Nuremberg before International Military Tribunal, mass killings and other outrageous crimes against Jews was not the main object of the trial. Thereby prosecution and punishment one of the most important organizers of the genocide of Jewish people, creator of new type of evil and new type of crime, become the great task of the State of Israel.
MATERIALS AND METHODS. The theoretical basis of the study consists of the works of leading international lawyers specializing in international criminal law, as well as the international extradition of criminals; the analytical base comprises of the decisions of the Nuremberg International Military Tribunal, as well as the national courts of the State of Israel, in particular the cult decision the Attorney General of the Government of Israel v. Adolf Eichmann, as well as the decisions of the national courts of the United States, cited in the article for the purpose of comparative analysis. The methodological basis of the research comprises historical method, methods of formal logic, including analysis, synthesis and analogy, as well as systemic, comparative legal methods and method of interpretation.
RESEARCH RESULTS. Based on the study of international legal instruments and international judicial practice, as well as the national legislation of the State of Israel, the author made conclusions related to the abduction of accused from the territory of a foreign state, in particular its consequences in the form of violation of the sovereignty of the state. At the same time, the article contains a statement that the unlawfulness of the arrest does not prevent the court from exercising jurisdiction over the person. In the context of the administration of justice by the State of Israel, the author analyzes the Convention relating to the Status of Refugees of December 14, 1951, paying special attention to the problem of the possible immunity of the accused based on the refugee status granted by the state.
DISCUSSION AND CONCLUSIONS. In the course of the study, the author analyzed a significant amount of materials, summarized the doctrinal positions put forward by a number of prominent international scholars, and also formed the conclusion that the trial of Eichmann marked not only the administration of justice over the international criminal, but also provided another opportunity for a broad international publicity of the horrors of the Nazi regime and the need to unite collective efforts of states to save future generations from such international crimes.
INTERNATIONAL CRIMINAL LAW
INTRODUCTION. The relevance of the research topic is determined, firstly, by the special socio-economic and international importance of energy, the technical complexity of energy facilities and at the same time, their increased vulnerability, potential threat to the environment, and secondly, by the needs to ensure the safety of energy activities in its various forms with the help of international and national law. Despite the fact that in the science of international law considerable attention is paid to the problem of the relationship between international and national law, there are no special comprehensive studies on the problem of the relationship between international and national law in the field of ensuring the safety of energy activities. In turn, the category “energy security”, in contrast to the outwardly similar and organically related (but not identical) category “energy security”, has not yet received a comprehensive (including within the framework of legal science) research, is not legalized in law. The purpose of the work is to substantively identify the possibility and necessity of legalizing the category of "energy security" and the potential for improving national law (in particular, national criminal legislation) on the circumstances of Russia's participation in international treaties, fulfilling international legal obligations and increasing the efficiency of legal regulation, protecting national interests in the energy sector.
MATERIALS AND METHODS. Within this research international treaties and documents of the international law and national legislation of States are analyzed. As a research method, the general scientific and special methods of enquiry is used, including the comparative legal and the formal legal methods.
RESEARCH RESULTS. In modern conditions, there is a need to legalize the category of “safety of energy activities”, which, in contrast to the “energy safety” category, has not yet received due attention, including in legal research. The safety of energy activities has various sections, and its legal support includes a wide range of measures and regulators of an international legal and national legal nature. In practice, the relationship between international legal and national legal regulators, their combination and composition in the process of ensuring the safety of energy activities (as applied to individual energy facilities, in particular, floating nuclear power plants) can take complex, combined forms. Counteraction to acts of unlawful interference that infringe on the interests of the safety of energy activities is carried out in the interconnection of international criminal law and national criminal law. The author's position on the question of the systemic affiliation of international criminal law and its relationship with national criminal law is indicated. It is shown that in numerous international treaties and other international documents on environmental protection in connection with the conduct of energy activities, with rare exceptions, there is no mention of criminal-legal measures to counter relevant environmental offenses; accordingly, this issue is resolved at the level of the national criminal law of states. The special and most developed international legal documents on the issues of ensuring the anti-criminal security of energy activities are the Protocols for the suppression of unlawful acts against the security of fixed platforms (1988 and 2005, respectively). The need for the implementation of international legal provisions into national criminal legislation is substantively indicated. A legislative gap was identified and the potential for improving the norms of national legislation on the criminal law protection of trunk pipelines was identified, taking into account the provisions of the 1982 UN Convention on the Law of the Sea.
DISCUSSION AND CONCLUSIONS. The main conclusions of the study are as follows. Firstly, the category "safety of energy activities" in its content is not identical to the category of “energy safety”, while it includes internal (from the point of view of the safety of energy facilities, fuel and energy complex, people involved in the process of their operation) and external (from the point of view of in terms of risks and threats for the environment from the energy activity itself), as well as a number of “sections” (anti-criminal security, industrial and information security, environmental safety), taking into account the nature of the relevant threats. Secondly, the national criminal legislation in the field of ensuring the safety of energy activities has significant potential for improvement, based on the instrument of national legal implementation of legally binding provisions of international treaties for the state. On the fact of Russia's participation in the Protocol for the suppression of unlawful acts against the safety of fixed platforms located on the continental shelf, 1988, it is necessary to implement the provisions of this international legal act in the Criminal Code of the Russian Federation, thereby fulfilling the international legal obligation of the state and increasing efficiency criminal law protection of these objects of the fuel and energy complex. It is also necessary to bring the norms on the criminal law protection of underwater cables and pipelines in the current Criminal Code of the Russian Federation in accordance with the provisions of the international treaty of the Russian Federation – the UN Convention on the Law of the Sea of 1982 (Article 113 “Breakage or damage of a submarine cable or pipeline”).
INTRODUCTION. Against the background of the unfolding epidemic of coronavirus, the trends in cybercrime that appeared in previous years have reached unprecedented magnitudes. The rapid transfer of many basic spheres of social functioning to a digital platform in an actual legal vacuum provided criminals with almost unlimited opportunities. In these circumstances, the task of improving and unifying the basic categories in the field of combating the «new form of crime» is of paramount interest not only from the point of view of theory, but also in order to create an effective international legal mechanism to counter this threat.
MATERIALS AND METHODS. The material for the study were legal documents developed under the auspices of 14 regional international organizations, which represent one or another regional group, scientific works of foreign and domestic scientists. The methodological basis of the study was the general scientific and private scientific methods of cognition, traditional for legal work.
RESEARCH RESULTS. The study revealed inconsistencies in terminology, the absence of a uniformly understood and applied normative definition of a «new form of crime» and related concepts that would meet the criterion of authenticity. Regional international organizations operate with such concepts as "cybercrime", "attacks against information systems", "crimes in the field of computer information", "crimes in the field of information technology", "information crime", "crimes related to computers and networks", "digital security risks", "the use of information and communication technologies (ICTs) for terrorist and criminal purposes". All this indicates the absence of common approaches to understanding the very essence and specific features of this criminal phenomenon.
DISCUSSION AND CONCLUSIONS. The author draws attention to the fact that the term "cybercrime" is used in 7 out of 14 groups of international documents of a regional nature. Analysis of the work of domestic and foreign researchers confirms the validity of the use of the term "cybercrime", as most fully and accurately reflecting the unique properties of this type of crime, its technical component. Based on the correlation and comparative study of the terms "information crime", "computer crime", "cybercrime", the author formulates basic provisions that can be taken into account when trying to develop a unified concept. The author draws attention to the fact that, taking into account the specific nature of the object, subject and virtual environment of committing these crimes, any legal norm should be formulated and correlated with the objective possibility of its practical implementation, taking into account technical characteristics.
LAW OF THE SEA
INTRODUCTION. In the second half of the 20th century, the expert was faced with a number of urgent tasks, in particular: ensuring access of states to living and nonliving resources of the World Ocean, protecting marine ecology, expanding the jurisdiction of states-states and delimiting maritime spaces. These problems became the official reason for convening the III Conference on the Law of the Sea. Also on the agenda of this conference is the issue of the transfer of marine technology. In the course of lengthy negotiations on the elaborated part XIV "Development and transfer of marine technologies" of the Convention on the Law of the Sea, which is used by the international legal regime for the transfer of marine technology. The author examines various international legal aspects of the problem of transfer of marine technologies, the importance of this institution for the international community. The purpose of the presented study is a comprehensive analysis of the international legal regime for the development and transfer of marine technologies based on the study of the relevant international legal acts and documents, identification of international legal problems. The main tasks are: identification of the prerequisites for the need for international legal regulation of the development and transfer of marine technologies, analysis of the provisions of the relevant international legal acts, consideration of the mechanism for the transfer of marine technologies developed by the UNESCO Intergovernmental Oceanographic Commission.
MATERIALS AND METHODS. The basis of this study is the provisions of international legal acts in the field of maritime law, documents of the UNESCO Intergovernmental Oceanographic Commission in the field of transfer of marine technologies, as well as the works of domestic and foreign experts in the field of maritime law. Comparative legal analysis, formal legal, formal logical and systemic methods, methods of analysis and generalization were used as the main research methodology.
RESEARCH RESULTS. As a result of the presented study, the prerequisites for the international legal regulation of the development and transfer of marine technologies were identified, the delineation of the areas of regulation of the UN Convention on the Law of the Sea, the Agreement on the Implementation of Part XI of the UN Convention on the Law of the Sea and the UNESCO IOC Criteria and Guidelines for the Transfer of Marine Technologies. A detailed analysis of the modern international legal regime for the development and transfer of marine technologies and the transfer mechanism developed by the UNESCO Intergovernmental Oceanographic Commission was carried out. A number of problems in the international legal regulation of this area have been identified, and ways to improve the efficiency of such regulation have been proposed.
DISCUSSION AND CONCLUSIONS. In the course of the study, the author concludes that the mechanism of international legal regulation of the development and transfer of marine technologies needs further improvement, and the UNESCO Intergovernmental Oceanographic Commission Criteria and Guidelines for the Transfer of Marine Technologies require appropriate amendments and additions. The author not only identifies specific problems of the international legal regime for the development and transfer of marine technologies, but also suggests ways to solve them.
ISSN 2619-0893 (Online)