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Moscow Journal of International Law

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No 2 (2022)
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HUMAN RIGHTS

6-16 1203
Abstract

INTRODUCTION. The institute for the protection of women both at international and national levels taking into account the ongoing discussions on the term “gender” is considered in the article. The authors examine the distinction between concepts “sex”, “gender” and “gender identity”, enshrined in international legal acts and documents, the States’ positions and approaches to their use, including on the example of the implementation of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence, better known as the Istanbul Convention.

MATERIALS AND METHODS. During the research the authors used different international legal documents, including international treaties, recommendations of the United Nations treaty bodies, reports of the special rapporteurs and international experts, outcome documents of international conferences, as well as doctrinal sources and national legislation of foreign countries. The study was carried out based on general scientific and special scientific methods. The methods of legal modeling and forecasting were widely used in the analysis in order to define prospects for possible future studies and development of international human rights law on the protection of women from violence and domestic violence.

RESEARCH RESULTS. Demonstrating different approaches to understanding the term “gender” in protecting women from violence and domestic violence, implemented by international organizations and States, the authors examined factors that influence the position of national authorities of a number of countries when considering the possibility of accession or ratification of the core international legal acts in this area on the example of the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence.

DISCUSSION AND CONCLUSION. The authors came into conclusion that the problems of violence against women and domestic violence should be viewed through the lens of gender equality concept, which does not entail the elimination of biological differences between two sexes and does not encourage women and men to change their social roles. The article stresses the need for an internationally agreed definition of the term “gender” in order to strengthen the legal and institutional mechanisms for a more efficient practical implementation of measures to combat violence against women and domestic violence.

17-38 1535
Abstract

INTRODUCTION. This paper reflects the main points and approaches to the international legal regulation of surrogacy. It demonstrates the existing inconsistency in the stances of states concerning this controversial (first of all from the ethical point of view) kind of assisted reproductive technologies, and the resulting contradictions. The current extremely fragmented international legal regulation of surrogacy issues presented in the article illustrates the need of the parties involved in the process to develop unified approaches, at least regarding the most commonly encountered issues that would guarantee the protection of human rights and freedoms, especially those of a child. The article also cites the example of one of the most liberal legal systems for surrogacy, the Russian Federation, to discuss an issue that has arisen for the Russian legislator in the practical implementation of surrogacy - the right of single people, especially of single men, to become a single parent under the surrogate motherhood programme in the Russian Federation. The article draws attention to the absence of legal documents regulating surrogacy for single fathers in the Russian Federation, while the existing documents regulating the institution of surrogacy breed a number of contradictions (such documents include: Family Code of the Russian Federation No. 223-FZ of 29 December 1995; Federal Law “On Basics of Health Protection of the Citizens in the Russian Federation” No. 323-FZ of 21 November 2011; Federal Law “On Acts of Civil Status” No. 143-FZ of 15 November 1997; Order of the Ministry of Health of the Russian Federation No. 107n of 30 August 2012 “On the Procedure for the Use of Assisted Reproductive Technologies, Contraindications and Restrictions on Their Use”; Order of the Ministry of Health of the Russian Federation No. 803n of 31 July 2020 “On the Procedure for the Use of Assisted Reproductive Technologies, Contraindications and Restrictions on Their Use”). Analysing current practice, based on existing Russian legislation, gives ground for its revision. The special character of the issue is that under the existing legal framework, the question of their right to a surrogate child arises for single men twice: at the stage of 'conceiving the child' and at the stage of registration (i.e., the stage of registration of such a man as the sole parent for a surrogate child). The article puts an emphasis on the great role of the Russian courts in resolving a number of issues with ambiguous interpretation of the current legislation. The court practice on the indicated issues is noted to have strengthened the arguments in favour of the reform. The article pays special attention to the investigation process in a new criminal case - the “2020 Doctors' case”. Amid the existing norms of Russian law on surrogacy as well as this “Doctors’ case”, the article indicates the emerging discrimination against single men in the Russian Federation.

MATERIALS AND METHODS. The analysis in the article is based on international universal and regional European legal instruments, case-law of the European Court of Human Rights and the Court of Justice of the European Union, documents of the European Parliament, the International Commission on Civil Status, the Hague Conference on Private International Law, the International Social Service, UN treaty bodies and the UN Special Rapporteur on the sale and sexual exploitation of children, including child prostitution, child pornography and the production of other materials containing child abuse. It is also based on the legal acts of the Member States of the European Union and of the Russian Federation, academic articles and emerging practice. The research is based on analysis, synthesis, deduction, induction, analogy, hermeneutics, observation, dialectics, as well as on descriptive, systematic and comparative methods. Given the specific nature of the topic, an interdisciplinary approach is also applied, which allows the issues raised to be considered from the legal, medical and social perspectives.

RESEARCH RESULTS. Presently, it is beyond doubt that a unified international instrument on surrogacy needs developing. Such a document should, first and foremost, contain a clear conceptual apparatus enabling all parties concerned to have a common understanding of the key issues surrounding surrogacy. Furthermore, it should reflect the main basic approaches to the most common issues encountered in practice, which today are resolved ambiguously and, in fact, their resolution depends on the circumstances of each particular case. Even the minimal outline of the common dimensions in the field of surrogacy at the international level would provide serious guarantees of the human rights protection and, above all, of the rights of a child. The authors consider that, as far as surrogacy regulation in the Russian Federation is concerned, it is reasonable to avoid a complete ban on assisted reproductive technologies in Russia. Forasmuch as it is an act of cooperation aimed at giving every person the opportunity to become a parent, rather than the commercialization of child-bearing. In view of this, it seems necessary to revise the range of surrogacy subjects in the Russian Federation with an eye to its expansion.

DISCUSSION AND CONCLUSIONS. Assisted reproductive technologies have recently become increasingly common, on the one hand due to relevant scientific advances, and on the other hand due to the ever-growing demand for such technologies. This paper examines some of the topical issues related to the surrogate motherhood. Practice shows that the exclusive regulation of this issue at the national level does not allow for the relations ensuing the application of such assisted reproductive technologies to be regulated completely. Thereupon, the authors deem it reasonable to define common principles and standards of surrogacy application at the international level in order to remove a number of controversies existing today in relation to the use of international surrogate motherhood. At the same time, when defining such common international approaches, special attention is suggested to be paid to particular issues arising at the national level and being of principal importance in terms of international legal regulation of surrogacy, such as the possibility for single persons to use this kind of assisted reproductive technology and to enjoy the relevant state support measures.

INTERNATIONAL ECONOMIC LAW

39-53 1249
Abstract

INTRODUCTION. The regulation of the institute of cross-border bankruptcy is currently acquiring the greatest relevance, given the globalization of the economy and the internationalization of business relations. In particular, transactions with foreign counter-parties are increasingly being concluded, property is purchased abroad, large organizations establish representative offices in foreign countries. Of particular relevance is the regulation of cross-border bankruptcy in the territory of the EU, which is an integration association. In this connection, the considered problems are of particular relevance.

MATERIALS AND METHODS. This study is based on scientific works of Russian and foreign researchers in the field of private international law and European law, as well as on the analysis of EU legal acts. Methodological basis of research includes a variety of methods of scientific knowledge - general scientific (analysis and synthesis, induction and deduction, systemic, method of theoretical modeling, etc.) and special legal (method of legal interpretation, comparative legal, etc.).

RESEARCH RESULTS. Increased attention to the legal regulation of cross-border bankruptcy in the EU territory is currently due to the desire to develop foreign economic relations, as well as the need to eliminate existing gaps in legislation that prevent the creation of a single market. As one of the components of legal cooperation in civil cases, the legal mechanism in the field of cross-border bankruptcy is characterized by a combination of two methods: unification and harmonization of legislation.

DISCUSSION AND CONCLUSIONS. In the framework of this article the authors considered the very notion of cross-border bankruptcy, as well as highlighted the main characteristics of the models of its settlement in the international community. Modern EU legal system in the field of regulation of cross-border bankruptcy acts taking into account the existing judicial practice, in order to avoid infringement of the rights of creditors, who expect the fullest satisfaction of their claims, reducing costs and timing of the case. Measures to harmonize the EU legislation in the field of bankruptcy in the member states of the Union are aimed at creating a culture of business rescue and bona fide debtor.

54-65 585
Abstract

INTRODUCTION. The relationship between investment protection and intellectual property rights is one of the longstanding issues in international investment law — intellectual property rights have long been recognised as a form of ‘investment’ entitled to protection under bilateral investment treaties and other international investment agreements. The book co-authored by Simon Klopschinski, Christopher Gibson, and Henning Grosse Ruse-Khan, and entitled The Protection of Intellectual Property Rights under International Investment Law [Klopschinski, Gibson,Ruse-Khan 2021] provides a welcome contribution to the debate on the issue by addressing the problem from an informed theoretical standpoint. However, this issue, as correctly pointed out by the authors, is not merely a theoretical one, but rather one with significant consequences in terms of the integration of other concerns and values in investment treaties and arbitral cases, such as intellectual property rights protection.

MATERIALS AND METHODS. The materials for the article were the book co-authored by Simon Klopschinski, Christopher Gibson, and Henning Grosse Ruse-Khan, The Protection of Intellectual Property Rights under International Investment Law (2021), in light of the relevant academic literature in the field of international investment law and IP. The methodological basis of the research consists of general scientific and special methods.

RESEARCH RESULTS. Without doubt, this book is a comprehensive and stimulating study by the experts in both fields that will deepen understanding of the relationship between IP and investment. The authors masterfully bring together discourses that are taking place between scholars and practitioners in each regime, but frequently in relative isolation from each other.

DISCUSSION AND CONCLUSIONS. With regard to the subject-matter, it is clear that no matter how specialised the fields of international law already are, and will increasingly become in the future, they maintain common roots and traits. Once this path of mutual exchange is taken, many positive cross-fertilisation effects can be expected in the future. The greatest part of the book consists of an analysis of shared procedural and substantive norms. Klopschinski, Gibson and Ruse-Khan focus on how substantive provisions are articulated across the two legal regimes and identifies commonalities and differences in framing and in how they are interpreted in dispute settlement.

INTERNATIONAL SECURITY LAW

66-84 1627
Abstract

INTRODUCTION. The presented article is devoted to an extremely curious and, without exaggeration, urgent topic. The authors seek to understand the content and legal concept of biosafety in International Law. The researchers seek to list the biosafety issues in order to define concrete aspects related to responsibility of the States for using biological weapons. The authors analyze new legal trends on ensuring the international biosafety. The article is focused on legal issues by raising many questions about what should be considered a just war in the view of international humanitarian law, the issues of fundamental principles in current international law (the principle use of force, the right of States to self-defense in case of a bioattack, the principle of the peaceful settlement of international disputes, the principle of non-interference in the internal affairs of States, arms control, and responsibility). The writers give an overview of new types of sovereignty such as biosovereignty, cyber sovereignty, cyberbiosovereignty, and genomic sovereignty of States, the legal concept of international biocrimes (genomocide), the legal classification of bioterrorism, bioaggression, biopolitics, and bioeconomics. The authors consider the importance of facilitating the broad interpretation of the concept of biosafety.

MATERIALS AND METHODS. The research uses general scientific and special cognitive techniques wherein legal analysis and synthesis, systemic, formal-legal, comparative-legal, historical-legal and dialectical methods are applied.

RESEARCH RESULTS. The authors found out that despite the prohibition of biological weapon there are still other urgent issues such as an international control mechanism for monitoring the non-proliferation of biological weapons has not been established yet. The Protocol to the Biological and Toxin Weapons Convention (BTWC) has not been adopted yet. The study concludes with an idea that the problem of banning certain types of biomedical research has not been solved in some States and at the international level. The authors note such important problems as the lack of an international control mechanism for monitoring the prohibition of the development, production and stockpiling of bacteriological (biological) and toxin weapons, as well as the threat to the safety of genomic research and confidentiality of genetic data. In this paper, we interpret the concept of biosafety rather broadly, considering the issues typical of allied industries. Biosecurity and biosafety are directly related to ensuring environmental security, marine security, food security and outer space security. The researchers paid attention to the issue of legal regulation of ensuring environmental, biological, and food safety. Due to this fact, it is hard to do so with regard to the causal link between the acts (bioterrorism) of state agencies, the violation of the principles of international law, standards of human rights and the consequences that occurred. It is not clear from the text of the BTWC Convention which international organ/body can investigate such acts in international affairs and which norm of international law directly should be applied.

DISCUSSION AND CONCLUSIONS. Following a review of the content, the authors raise possible problems, strategies, suggestions and guidelines for ensuring biosafety in international law. The authors conclude that near future new categories of weapons of mass destruction appear in the world, moreover, genetic weapons should be classified as weapons of mass destruction, along with chemical, biological, bacteriological, and nuclear weapons. Technological developments will trigger the issues of fundamental principles in current international law. The authors came to the conclusion about extension of the universal jurisdiction of the International Criminal Court in case biological and genetic weapons are used. The authors encourage the complement to the international legal regulation the necessity to adopt a Protocol to the Biological and Toxin Weapons Convention (BTWC), establishing an international control mechanism for verifying prohibitions on the development, production, and stockpiling of biological weapons is obvious. The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction adopted in 1993, which contains a mechanism for verifying compliance with the prohibitions of the Convention, can be considered a precedent for the effective regulation of the circulation of hazardous substances all over the world.

85-100 1280
Abstract

INTRODUCTION. The world has many times faced cardinal changes triggered by technological development. Creation of the Internet and the emergence of the artificial intelligence have become the major trend of the ongoing changes with the signifi-cant potential to affect all spheres of live, including the military affairs and the geopolitical phenomena in general. In this paper, in particular, we discuss the opportunities and challenges of the rapid technological development in the defense sector in the context of globalization. The pace and the nature of changes in defense dictate the necessity to analyze the current and future challenges of our digitized age in search of adequate and timely legal and strategic practical solutions. Cyber means of warfare are the weapons of the present. Over the past decades, cyber means of warfare have been frequently used against states in the context of international and non-international armed conflicts, as well as outside of such context. Thus, the fundamental scientific questions that arise are the following: a) are the current legal regulations at international and national levels sufficient to address all the challenges caused by the spillover of armed conflicts into the virtual domain and by the future advancement of cyber weapons, and b) are the current cyber weapons or those of the future capable of changing the nature of “war” described by General Carl von Clausewitz yet in the 19th century as a violent method of forcing its political will by one party of the conflict to the other. We have analyzed the above-mentioned questions in the light of the cyber weapons, which already exist and are being used for military purposes, in the light of possible advancement of cyber weapons and integration of AI into them, as well as in the light of the Big Data management. We have reflected on the dangers, which the smart and entirely data driven world would face, from legal and geopolitical perspectives, through the several possible scenarios of development, emphasizing, in particular, the probable military (defense) aspect of data management. While most frequently the specific problems of application of International Law to the traditional cyber warfare situations become subject for academic debates and discussions, we stress the necessity to also analyze the legal and practical implications of further advancement of cyber weapons, as well as the necessity to consider the role of Big Data management in changing the nature of war and, consequently, also the applicable legal solutions.

MATERIALS AND METHODS. The works of academics and international scholars in the field of international law and, specifically, international humanitarian law, and military theorists, as well as international treaties, commentaries to international treaties, and national cyber defense and cyber security strategies comprise the theoretical basis for the current paper. The research has been conducted via general and specific scientific methods of cognition, in particular the dialectical method, comparative legal method, method of interpretation, as well as methods of deduction, induction, analysis, synthesis, and others.

RESEARCH RESULTS. The ongoing changes taking place in the world have resulted in a situation, when cyber domain is considered one of the traditional war domains. In this context the international community is now debating more flexible interpretations of international legal regulations in order to most efficiently address the new reality. It is also important that states at national level undertake measures to timely and adequately address the challenges already created and those that potentially may take place as a result of the globalization along with the rapid evolution of the cyber technologies and their military use. In the current article we conclude that the categories of the present generation of cyber weapons are lawful. However, the future developments in cyber weapon technologies, as well as the possible quasi-military implications of Big Data management raise many theoretical and practical questions deserving attention. The efforts of the international community and individual states in the field of legal regulation of cyber technologies should be directed toward creating guarantees that the products of the technological development are used for the benefit of humankind. As one of such measures The Authors indicate national cyber security and cyber defense strategies, which according to the Authors, should be elaborated giving due consideration to the possible future developments.

DISCUSSION AND CONCLUSIONS. In this paper we analyze the peculiar features of evolution of the world in the 21st century and argue that wars are not static and autonomous phenomena isolated from the global context and all the changes taking place in the world. In particular, we address one of the most popular debates among the scholars in the field of military affairs concerning the issue whether the nature of war has changed or will change overtime, referring to Carl von Clausewitz’s thoughts. With regard to the current generation of cyber weapons, we conclude that even if they might prima facie seem to be inherently indiscriminate (such as, for example, nuclear weapons) in reality cyber weapons are not per se indiscriminate, but rather are weapons with a very high potential of being used indiscriminately or in violation of the principle of discrimination. However, the high potential of indiscriminate use of cyber weapons does not outlaw the cyber weapons as such. We also agree with the widely accepted opinion that the cyber weapons, which are currently used, are sufficiently regulated by the International Law. At the same time, the future tendencies for advancement and improvement of military cyber technologies, inter alia, via integration of artificial intelligence, may seriously call into question the possibility of their application in compliance with the international legal regulations. Finally, the possible scenarios of advancement of Big Data management have led us to the conclusion that big data management per se has the potential of being used as a weapon with less lethal or even non-lethal consequences, however equally effective in enforcing one’s policy as the traditional weapons or potentially kinetic cyber-weapons. If big data analysis at its current stage of development does not produce very accurate predictions, the well-distributed and structured informational flow in the cyber domain is capable of influencing and manipulating behaviours. In such case if Big data monopoly (including both: hardware and soſtware) vests in one of several actor, it could drastically change the nature of war by making the element of violence redundant and consequently alter the geopolitical balance. One of the measures for early response to future challenges, in our opinion, could be through reflecting on lex ferenda in cyber security and cyber defence national strategies. From the analysis of the content of different strategies we could conclude that most states acknowledge cyberspace as a military domain like land, air or maritime, analyse the main specific characteristics of current generation of cyber weapons, and set state objectives and action plan for cyber offense, cyber defense and cyber deterrence respectively. While the future advancement of cyber means of warfare and the quasi-military dimension of the big data management seem to be overlooked by states in general.

LAW AND POLITICS

101-114 1091
Abstract

INTRODUCTION. This article elaborates on the idea of Professor Y.A.Reshetov, who published in the Moscow Journal of International Law a draſt convention on the right of peoples to self-determination. The draſt convention has been one of the first attempts to draw attention to the problem of the limits of self-determination in plural States, the forms of implementation and the main subjects of the right of self-determination. The purpose of the study is to develop the relevant ideas of Y.A.R.Reshetov, as well as to introduce new ideas, taking into account the evolving processes of realization of the right to self-determination in the modern world.

MATERIAL AND METHODS. The study is based on international legal instruments, advisory opinions of the International Court of Justice, the jurisprudence of other international legal bodies and contemporary research of domestic and foreign scholars. The methods used in this study are: analysis, synthesis, induction, deduction, comparison, classification, systematization, prediction, as well as comparative and formal legal approaches.

RESEARCH RESULTS. The territorial disputes resulting from ethnic, regional and local conflicts are among the most pressing problems in international relations. For any multi-ethnic State, including Russia, it is extremely important to have a genuine scientific awareness of the principle of equality and self-determination of peoples, adequate forms of its implementation, and structuring ethnic identity in the system of civil identity. Exploring for well-founded solutions to the matters involved will help consolidate world public opinion and ultimately develop an appropriate international legal mechanism under the auspices of the United Nations.

DISCUSION AND CONCLUSION. The articles analyses the evolution of the idea of self-determination of peoples, the place of the principle of equal rights and self-determination of peoples in the system of basic principles of international law. The range of subjects of the right to self-determination, the specifics of secession, institutions of uti possidetis juris, and of delays in secession, as well as questions on the forms and criteria of self-determination of the principal subjects and the phenomenon of «unrecognized States», author draſted the relevant Declaration on the Right of Peoples to Self-determination and the Modalities for its Implementation.

INTERNATIONAL FIGHT AGAINST CRIME

115-128 845
Abstract

INTRODUCTION. The increase in the number of armed conflicts involving non-State armed groups recognized as terrorist in States and international organizations has been the trend in recent years. In this regard, the question relating to the links between terrorism and armed conflict, as well as between the international legal regulation of combating terrorism and international humanitarian law, is on the agenda. The article examines the regional approaches of the CIS to countering terrorism within armed conflicts and during counter-terrorism operations in peacetime.

MATERIALS AND METHODS. The material for the research included the universal treaties, the model legislation of the CIS on IHL and in the field of combating terrorism, as well as the conceptual documents of the military-strategic cooperation of the CIS member states in particular in identifying areas and forms of countering international terrorism as a modern military threat. The methodological basis of the research included general scientific and private scientific methods of cognition traditional for legal researches.

RESEARCH RESULTS. The research substantiates the hypothesis that within the Commonwealth there were formed the legal regimes, which are based on the generally recognized principles and norms of international law governing the issues of military counteraction to terrorist threats both in peacetime and during armed conflicts. The article analyzes international treaties, model legislation of the CIS and national legal acts of the member states establishing the legitimacy of military methods and means of response to terrorist challenges and threats within the special legal regime of the "counter-terrorist operation". A relevant aspect of the study was the identification of the prospects of military cooperation between the CIS member states through the development of new mechanisms for combating terrorism– "military-police operations" in the system of their joint counter-terrorism activities.

DISCUSSION AND CONCLUSIONS. In modern realities, it is the most effective to build the counteraction to terrorism within the CTO legal regime which enable to combine law enforcement and military tasks faced by the state within ensuring its internal and external security, and also contains guarantees for ensuring and protecting human rights. Meanwhile, the involvement of the armed forces of the state in combating terrorism does not mean an unequivocal transfer of the situation from peacetime to the regime of martial law. The CIS, conscientiously fulfilling its obligations under the key acts of IHL, has set out in its model legislation the norms prohibiting terrorism during armed conflicts and establishing responsibility for acts of its. In addition, under the auspices of the CIS there has been developed and successfully implemented the model legislation regulating the use of military methods and means of response to terrorist challenges and threats within a special legal regime of a “counter-terrorism operation” separated from the regime of the use of armed forces within the IHL.



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ISSN 0869-0049 (Print)
ISSN 2619-0893 (Online)