ISSUES OF THEORY OF INTERNATIONAL LAW
INTRODUCTION. Te United Nations framework reflects the need for a paradigm shif in order to assure that the unilateral use of sovereign powers will no longer be a threat for the humankind like until 1945. Tus, the new world order highly contributed to the crystallisation of certain principles and since then States have been taking advantage of the UN system to consolidate and develop the principle of non-intervention. Tis paper seeks to identify and critically explore the evolution of intervention in the United Nations bodies since 1945 and subject the fndings to the criteria adopted by the ILC in its 2019 draf conclusions on peremptory norms of general international law (jus cogens) in order to determine if intervention has reached the status of jus cogens norm.
MATERIALS AND METHODS. Tis work begins with the identifcation of the elements comprising the principle of non-intervention from the Charter of the United Nations followed by the description of the criteria established by the ILC to recognise the existence of a peremptory norm of general international law. Subsequently, will be developed an examination of the present State practice, the rulings of the ICJ more relevant for the matter in hand and this will be followed by a comprehensive analysis to the resolutions adopted by the UNSC and the UNGA which are decisive to determine in the end that the prohibition of non-intervention is a peremptory norm of international general law. Tis study is developed within the framework of international law and is based on open sources, as well as legal doctrine and normative elements.
RESEARCH RESULTS. Te result of the research brings the notion that the beginning of a new era afer the end of World War II came as a result of the global awareness of the dangers of unilateralism and absolute sovereignty for humankind. Te principle of nonintervention is accepted as part of customary international law and the activities taken in the framework of the UN over the last almost eight decades show how States wanted to shape the scope of this principle.
DISCUSSION AND CONCLUSIONS. Considering all the efforts invested by States in the attempts to reach a notion of non-intervention supported by the majority of the humankind, such principle is not only recognised as having a customary nature, but it also entails concrete rights and duties for States. In theend, the singular importance given to the principle of non-intervention leads to the conclusion that from it derives a prohibition of intervention corresponding to a jus cogens norm.
INTRODUCTION. International custom still remains one of the main sources of international law. It is an external form of consolidation of customary norms of international law. At the same time, despite the rather wide use of the term "international custom", its general scientifc defnition has not yet been developed in science and practice. Tis defnition, in our opinion, should reflect the most important features that characterize this legal phenomenon.
MATERIALS AND METHODS. Te empirical base of the study was international treaties and international customs, resolutions of the UN General Assembly, materials of the International Court of Justice and the Court of the Eurasian Economic Union, the International Law Commission, the International Law Association. Te theoretical basis of the article is the works of domestic and foreign scientists in the feld of the law of international customs. Te methodological basis of the study was general scientifc and particular scientifc methods of cognition (dialectical method, methods of analysis and synthesis, deduction and induction, and comparative legal method).
RESEARCH RESULTS. Te results of the study made it possible to arrive at a new scientifc defnition of international custom and substantiate the approach to the classifcation of international customs. Under international custom, as a source of international law, it is proposed to understand an unwritten agreement, which is a form of consolidation and existence of customary norms of international law, reflecting the general practice of states, other subjects of international law (for local international custom, the practice of a limited number of states), recognized as a legal norm, regulated by international law and enforced by the subjects of international law, for which international custom is legally binding. International customs are of various varieties and can be classifed on various grounds. At the same time, it should be borne in mind that international custom is based on the usual norms of international law. Teir nature, as a rule, predetermines the varieties of international customs.
DISCUSSION AND CONCLUSIONS. It is proposed to put as the basis for the course of reasoning: the belonging of international custom to an unwritten source of international law; the need to separate the use of the term "international custom" and the term "customary rule of international law"; the presence of the conciliatory nature of international custom; taking into account the legal force of international custom in relation to the different composition of the subjects of legal relations, the binding nature of international custom for the states associated with its assistance; the impossibility of considering the process of formation of international customs as a source of international law, its further functioning without taking into account the peculiarities of the norms contained in it; the presence of a two-element structure of the norm contained in international custom; taking into account the possibility of regulation by international law of the procedure for the conclusion, operation and termination of an international custom.
MASS INFORMATION AND INTERNATIONAL LAW
INTRODUCTION. States are seized with the question of how International Law norms should be applicable with respect to harmful use of information and communications technologies (hereinafer – ICT) in many different collective formats. Against this background, an intensive disclosure of the states' positions is a brand new trend. So, managerialism is slowly giving way to consensualism, however, do these collective and individual efforts help to clarify, at least, the key problems connected with the qualifcation of these harmful practices?
MATERIALS AND METHODS. Being based on the analysis of the reports of the UN Group of Governmental Experts and the Open-Ended Working Group, as well as the ofcial positions articulated by states, this article seeks to reveal on which questions and in which volume states have managed to achieve a consensus on the qualifcation of harmful cyber activities under International Law. Tis question is crucial for the identifcation of the subsequent practice in the application of international treaties which establishes the agreement of the parties regarding their interpretation, as well as the practice and opinio juris as elements of international customs.
RESEARCH RESULTS. Te research confrmed that the principle of non-intervention into domestic affairs, albeit its full applicability in cyber context is not being questioned by the states, has a very limited significance for the qualifcation of the harmful use of ICTs, which brings to the forefront the principle of sovereignty. However, the states' ofcial positions, based on a denial or, vise versa, an afrmation of this principle as a separate rule, postulate the impossibility to apply the principle of sovereignty without concretization of its content in the cyber context. Te polyphony of the approaches does not foreshadow a possibility to reach consensus on this issue in the nearest future. With respect to the jus ad bellum and jus in bello norms, the readiness of the majority of states to qualify the cases of harmful use of ICTs as a 'use of force' or even an 'armed attack', and to overstretch the scope of the International Humanitarian Law notions of an 'attack' or 'military operation', is described as being indicative of the abuse of the 'military paradigm' to assess these activities. Approaches of some states go beyond the normative scope of these notions so far that their assertion loses legal signifcance and seems to have rather a political character by primarily fulflling the deterrent function.
DISCUSSION AND CONCLUSIONS. Te article concludes by diagnosing that a consensus between states on the application of International law to harmful ICT practices has been reached at a very high level of abstraction and hardly transcends the limits of the general acknowledgment of the applicability of International law in the cybersphere. Tis fact enshrines the indeterminacy as the main feature of the qualifcation of harmful use of ICTs under International law and renders almost every stance on nuances of the application of International law to these acts to be an ad hoc one.
INTERNATIONAL SECURITY LAW
INTRODUCTION. Te Treaty on the Prohibition of Nuclear Weapons (TPNW) which came into force in January 2021 divided the international society into two groups: its ardent supporters and opponents. Te vast majority of the parties to the Treaty are the states which have neither nuclear potential, nor political influence in the international nuclear agenda. In contrast, all the nuclear-weapon powers and almost all states with nuclear infrastructures refused to participate in the TPNW. Te Treaty contains an array of legal flaws, does not require any verifcation mechanism or even time-frame for nuclear weapons destruction.
MATERIALS AND METHODS. Te study is based on the international treaties in the sphere of nuclear non-proliferation and disarmament, resolutions of international organizations, ofcial statements, and joint documents of the heads of states and of the fve nuclear-weapon states (P5). Materials used for the analysis include scholar works of Russian and foreign researches in the international security law and nuclear law. Te research is based on general methods of study such as systematic approach, induction and deduction, logical forecasting, and specifc methods including historical and legal comparative methods.
RESEARCH RESULTS. Te article starts with the history of international efforts of nuclear weapons prohibition and approaches of leading powers. Specifc legal drawbacks inherent in the TPNW were exposed which proves that the Treaty is in fact a legally inconsistent document. At the same time antinuclear attitudes behind the Treaty should be understood and taken into consideration. Tere is a strong need for a constructive alternative to the TPNW.
DISCUSSION AND CONCLUSIONS. By comparing the various states’ approaches and legal opinions, the authors come up with a “Road Map” of actions which could become a real counterweight to the hasty and ill-considered decisions to prohibit nuclear weapons. Among those actions is the movement along two parallel tracks. Te frst one is Russian-American talks on further nuclear arms reductions which should include all strategic factors. Te second one is a gradual involvement in the process of other nuclearweapon powers through informal mechanism of consultations of the P5. Te article prescribes how to fll this mechanism with measures of transparency, confdence building and predictability.
DIPLOMATIC AND CONSULAR LAW
INTRODUCTION. Te establishment of diplomatic relations between States, among other mutual obligations of the parties, is based on the duty of the receiving State to provide appropriate conditions for the efcient performance of the functions of diplomatic mission. To this end, the authorities of the receiving State undertake to ensure respect for the full range of diplomatic immunities and privileges provided both in relation to the mission itself and in relation to diplomatic agents and members of their families. Te members of the diplomatic mission, in turn, undertake not to abuse the special legal status in the receiving State and not to take actions that entail interference in the internal affairs of the receiving State, undermining the security of the latter and going beyond the ofcial actions of the diplomatic mission. However, the diplomatic practice abounds in examples of massive violations of diplomatic immunities and privileges, both by the authorities of the receiving State and third parties, and by the carriers of these immunities and privileges themselves. A special place among these violations is given to the violation of the personal inviolability of diplomatic agents. Te article examines the legal nature of the immunity of personal inviolability, acts of violations in relation to this immunity and the measures taken by states to provide full protection to members of a diplomatic mission and their families.
MATERIALS AND METHODS. In the course of the study, international treaties applicable to the institution of diplomatic immunities and privileges were used, such as: Havana Conventions of 1928, Vienna Convention on diplomatic relations 1961, Vienna Convention on consular relations 1963, Convention on special missions 1969, Convention on the prevention and punishment of crimes against internationally protected persons, including diplomatic agents 1973, the Vienna Convention on the representation of states in their relations with international organizations of a universal character 1975, scientific works on diplomatic and consular law by domestic and foreign authors, as well as judgments concerning violations of diplomatic immunities and privileges. Te methodological basis of the research was formed by the following general scientifc techniques: analysis, synthesis, induction, deduction, comparison, classifcation, systematization, forecasting. Were applied and such specifc scientifc methods as formal legal and comparative legal.
RESEARCH RESULTS. Te article provides a comprehensive analysis of the practice of granting and observing diplomatic immunities and privileges, based on the provisions of international treaties and acts of national law of some states. Particular attention is paid to cases of violation of diplomatic immunities and privileges and measures taken by states to prevent similar violations in the future.
DISCUSSION AND CONCLUSIONS. According to the results of the research, it can be argued that there is a very dangerous tendency in the use of diplomatic immunities and privileges as a weapon of influence on states. It is necessary to develop new measures to ensure full protection of foreign bodies of external relations and their members, to strengthen domestic control over the observance of the legal status, immunities and privileges of these bodies and their members, as well as to strengthen cooperation between states to counter acts of violation directed against internationally protected persons.
INTERNATIONAL ECONOMIC LAW
INTRODUCTION. Tis article substantiates the need to develop scientifc and technological cooperation between the EAEU member states in the area of the use of renewable energy sources (RES) and its inclusion in the agenda of integration interaction. Te purpose of the article is to form a system of conceptual ideas about the state and prospects for the development of legal framework and strategic foundations of scientifc and technological cooperation between member states in the feld of renewable energy, which consolidate the key topics, directions and forms of interaction of relevant actors in the integration space.
MATERIALS AND METHODS. In the course of preparing the study, the author has analyzed international treaties and acts of the EAEU bodies that constitute the law of the Union, the legislation of the member states, as well as statistical sources. In addition, the author took into account the generalizations concerning the level of development of scientifc and technological integration, formulated by representatives of economic science. Te study is based on general scientifc methods of cognition (systemic and structural approaches, analysis and synthesis, induction and deduction), as well as special methods used in legal science (comparative legal, historical legal and formal dogmatic). Te use of a systematic approach became the basis for identifying a set of factors determining the formation of the EAEU agenda in the feld of renewable energy, as well as comprehending the need for the comprehensive nature of its legal and political and strategic aspects. Te modeling method has become a pillar for modeling the structure and content of the legal and strategic framework.
RESEARCH RESULTS. Based on the analysis carried out, the author came to the following research results: the nature and scale of challenges arising from changes in the structure of the world energy balance in favor of the RES sector were determined based on the introduction of appropriate technologies; the problems of scientifc and technological cooperation within the EAEU integration processes in the energy sector, caused by the lack of an appropriate agenda, were demonstrated; the existing legal and political and strategic frameworks for the scientifc and technological and related production and technological co-operation of the EAEU member states in the feld of renewable energy sources have been systematized, and their rather general nature has been indicated. Te author has conceptualized possible directions for the formation of a common legal and strategic space of the Union, which allows creating conditions for the addition of national potentials in order to strengthen the scientifc, technological and production positions of the member states in the feld of renewable energy.
DISCUSSION AN CONCLUSIONS. In the course of the analysis, the author turned to the controversial points expressed in the scientifc literature regarding the completeness of the legal regulation of scientifc and technological cooperation in the feld of renewable energy sources, options for its further improvement. Among the most important conclusions of the study is a series of prognostic generalizations. Te system of legal regulation of the considered cooperation will include legal (international treaty provisions and normative legal provisions of acts of the Union bodies) and political guidelines (general and special strategic documents), which will be formed not only as this cooperation develops, but also as drivers of a stimulating nature. At the same time, this will require not only the improvement of the regulatory framework, but also the development of organizational mechanisms for scientifc and technological and related production cooperation in the feld of renewable energy sources.
INTRODUCTION: In December 2019, an outbreak of coronavirus infection (SARS-CoV-2) was registered in Wuhan (China). Within a few months, the virus spread across Europe and Asia, and later around the world. Due to the emergency situation, the States were forced to implement various restrictive measures, including the closure of borders and public places to visit. Tese measures may lead to claims to investment tribunals from foreign investors for the protection of their rights.
MATERIALS AND METHODS: Te authors researched the provisions of bilateral investment treaties, case law of international courts and tribunals in connection with national measures to protect health and the environment, as well as the manuscripts of Russian and foreign scholars. Te methodological basis of the research contains general scientifc and special methods.
RESEARCH RESULTS: Te authors analyze the possibility of treatment of restrictive measures taken by States as self-judging clauses, as well as the possibility of applying Article 25 (necessity) of the Articles on Responsibility of States for Internationally Wrongful Acts as the circumstances precluding the wrongfulness. It is stated that it is undesirable to treat states’ measures as self-judging clauses, since such a treatment will provide States with too wide opportunities for exemptions from the international investment protection regime. At the same time the treatment of public health protection and prevention of economic (fnancial) crisis as an essential interest that the state safeguards against a grave and imminent peril is controversial for the purposes of applying art. 25 of the Articles on Responsibility.
DISCUSSION AND CONCLUSIONS: Te authors propose to establish certain standards or principles that may be used by investment tribunals in the course of proceedings in order to assess measures taken by States. Tese principles are legality and proportionality, consistensy with the purpose and non-discrimination. Te principles can be interpreted with respect to the case law of investment tribunals for disputes on the limitation of fundamental human rights and freedoms (the right to health protection and the right to a favorable environment). Te principles can be consolidated in the model protocol to investment treaties (Memorandum of Understanding), developed under the auspices of UNCITRAL.
INTRODUCTION. In December 2019, an outbreak of coronavirus infection (SARS-CoV-2) transmitted by airborne droplets was recorded in Wuhan, China. In midJanuary, the virus was detected in Tailand and Japan; in March, the center of the pandemic moved to Europe; in early April, the United States came out on top in terms of the number of infections. To combat the virus, many states have introduced emergency measures, including lockdowns, social distance requirements, mass testing, etc. Te pandemic has affected all spheres of public life, including international relations and international law. Tis article continues the article “COVID-19 and International Law: General Issues”.
MATERIALS AND METHODS. Te article analyzes the response to the pandemic on the part of states, organizations and the doctrine of international law; examines special international legal aspects of the pandemic: impact of the pandemic on human rights, WTO law, international investment law, and etc. Te problems of legal regulation in connection with the pandemic are defned and the ways of their solution are determined. Te subject of analysis is the materials of foreign legal press, frst of all, posts and articles on the Internet. In addition to the data of international law, scientifc categories of philosophy, economics and political science are used.
RESEARCH RESULTS. In response to the pandemic, many states have closed their borders to the entry of foreigners and the exit of their own citizens; have closed their ports to foreign ships, banned disembarkation and change of crew, or introduced mandatory testing and quarantine; have suspended flights and restricted the export of pharmaceutical ingredients; inter alia, these measures affected foreign investors. Te pandemic has also exacerbated problems of wildlife trade, cybersecurity and compliance with international humanitarian law. Border closures and port restrictions have drawn criticism, including citing violations of International Health Regulations, the law of the sea, refugee law and human rights law. Responses to derogations from investment and WTO obligations have been more restrained; many authors noted the legitimacy of the respective actions of states.
DISCUSSION AND CONCLUSIONS. In fact, the pandemic marks tectonic changes: the elimination of the outdated political model of the Modern Times and transition to a new political and legal paradigm. First, it is about changing the subject of the social contract. Te Hobbesian model of this contract implies obedience to the sovereign in exchange for guarantees of rights, as well as inviolability of private life; the new model presupposes the abolition of these guarantees and the imposition on the sovereign of the only obligation – the protection of biological (bare) life, which, in turn, means an unlimited right to intervene. Second, the pandemic is the backdrop for the redistribution of power between states, international organizations, corporations and media; by blurring the line between politics and expertise, it contributes to the anonymization of power, excludes political discussion and removes the requirement of public control. Tird, the pandemic radically changes management methods: under the pretext of a common threat, the state enters into direct contact with citizens, involving constant monitoring, verifcation and restrictions; the new mode of citizenship in this regard implies constant fear, consent to medical manipulations and refusal from unauthorized activity.
ISSN 2619-0893 (Online)