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Moscow Journal of International Law

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No 3 (2022)
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ISSUES OF THEORY OF INTERNATIONAL LAW

6-18 1148
Abstract

   INTRODUCTION. The list and the contents of branch (special) principles of IHL are considered to be a current subject of study. Along with the traditional legal approaches, the study forward additional theoretical arguments to include the environmental protection and the responsibility of officials and militaries for war crimes in the system of IHL principles. Besides
that, it is obvious that the record of IHL prohibitions to belligerents as general international legal rules to conduct hostilities, is refined.
   MATERIALS AND METHODS. The above study is based both on scientific researches of Russian and foreign authors in the field of IHL and analysis of international legal acts on universal level. Methodological basis of research includes general scientific methods (analysis and synthesis, induction and deduction, modeling and systematization) and special legal methods (legal comparativistics, formal legal).
   RESEARCH RESULTS. Completed systematization of IHL principles shows combination of different legal concepts, either of which has a certain scientific value. It looks important to summarize the international legal sources and trends taking place in UN system in order to expand the list of the mentioned principles.
   DISCUSSION AND CONCLUSIONS. In frames of this study the author is proposing the impartial assessments of established scientific approaches to definition and contents of IHL branch (special) principles. Both the forms of international legal cooperation of states to create an institution of responsibility for war crimes and the results of Nuremberg military tribunal regarding prevention of IHL violations are examined separately. The complimentary legal grounds of modern international courts functioning are determined by combination of national and interstate jurisdiction in the above field.

INTERNATIONAL SECURITY LAW

19-32 940
Abstract

   INTRODUCTION. The article analyzes the consequences of coming into force of the Treaty on the Prohibition of Nuclear Weapons 2017. This Treaty forbids use of nuclear weapons and its deployment on territories of states, which ratified it.
   MATERIALS AND METHODS. The article is based on the main international treaties, which regulate now the status of nuclear weapons – Non-proliferation treaty 1968, Treaty on the Prohibition of Nuclear Weapons 2017 and also Advisory Opinion of UN International Court of Justice 1996.
   RESEARCH RESULTS. Coming into force of the Treaty on the Prohibition of Nuclear Weapons subdivided states into two groups – the states-participants of this Treaty and states-non participants. On the territory of states-participants the use of nuclear weapons is prohibited and must be considered as war crime. On the territory of states- non-participants use of nuclear weapons preserves the same regime as before. This regime was considered by UN International Court of Justice in his Advisory Opinion on Legality of Threat and Use of Nuclear Weapons 1996. The article analyzes this Advisory Opinion.
   DISCUSSION AND CONCLUSIONS. Author comes to a conclusion, that all the legal foundations upon which is based this Advisory Opinion remains intact and also his central clause, according to which it is not forbidden for a state to use nuclear weapons when its survival is at stake. This situation may occur when such a state would be in armed conflict with a state or group of states – members of a military-political organization, which had much stronger military and economic potential. Also use of nuclear weapons is not forbidden against all members of this military-political organization.

AIR LAW

33-48 1628
Abstract

   INTRODUCTION. Achieving the goals of international legal regulation of a particular area of inter-State relations depends mainly on the existence of an effective dispute settlement mechanism. In the field of international air law, such powers are attributed to the Council of the International Civil Aviation Organization (hereinafter - ICAO), established under the Convention on International Civil Aviation of 1944 (hereinafter – the Chicago Convention). The Council's activities in this area cannot be called fruitful. Since the establishment of ICAO in 1947, the Council has not issued a single decision on disputes that have been brought before it. States have proved to be reluctant to use the dispute settlement mechanism established under the Chicago system. This is mainly due to the imperfection of the relevant provisions of the Chicago Convention, which for many years have been the object of criticism in international legal doctrine. Moreover, the provisions of the Chicago Convention do not answer the question regarding the legal nature of the Council as a dispute settlement body and the limits of its competence. The issue of the Council's competence has been considered twice by the International Court of Justice of the United Nations (hereinafter - ICJ). The judgments issued by the ICJ have not, in our view, resolved the existing legal problems but instead have contributed to further ambiguity. Furthermore, this topic has become especially relevant in light of the fact that in March 2022 the Netherlands and Austria initiated a dispute settlement procedure in the Council under Article 84 of the Chicago Convention against Russia for the downing of Malaysian civil aircraft in 2014. In these circumstances, the Council's de facto role in resolving international civil aviation disputes needs to be clarified.
   MATERIALS AND METHODS. This paper examines the provisions of the Chicago international legal regime governing dispute settlement in the Council. The authors also analyse the established State practice in the application of Chapter XVIII of the Chicago Convention. Particular attention is given to legal doctrine, where several international legal concepts emerge to resolve existing legal problems. The methodological basis consists of general scientific and special research methods, including analysis, synthesis, systematisation, as well as formal-legal, formallogical and critical-legal methods.

   RESEARCH RESULTS. The Council as a dispute settlement body has a dual legal nature. This is reflected in the fact that in procedural terms the Сouncil is similar to international judicial bodies in many aspects, but a number of features concerning the composition of the Council and the opportunity to appeal the decision issued prevent it from qualifying as a judicial body. This calls into question the power of the Council to issue legally binding deci-
sions and the existence of its jurisdiction per se. State and Council practice also confirms that the Council under Chapter XVIII of the Chicago Convention acts as a mediator, which contrasts with the recent decision of the ICJ on the Qatar Air Blockade case, under which the Council has jurisdiction. Moreover, the Chicago Convention provides sanctions for non-compliance with Council decisions, which does not allow the Council to be considered as a mediator. Equally controversial was the ICJ finding that the Council, in settling disputes arising from the Chicago Convention (the Transit Agreement or other treaties), could examine issues outside their scope.
   DISCUSSION AND CONCLUSIONS. The unclear legal status of the Council as a dispute settlement body, which was promoted by the controversial decision of the ICJ on the Qatar Air Blockade case, makes the mechanism under Chapter XVIII of the Chicago Convention highly ineffective. It is doubtful that states, consistently seeking legal certainty, would initiate proceedings in the Council under the existing international legal framework. As a result of the analysis of international legal concepts that propose the modernisation of the Chicago Convention dispute settlement mechanism, the authors conclude that either the establishment of a permanent arbitral institution within the structure of ICAO or the modification of the text of Chapter XVIII of the Chicago Convention so that the ICAO Council would act only as a mediator would be the preferable options. The authors share the position of lawyers who point to the need to negotiate new universal international law norms in the field of air law.

INTERNATIONAL ENVIRONMENTAL LAW

49-67 734
Abstract

   INTRODUCTION. At various times, the sustainable use of marine living resources in the high seas outside exclusive economic zones, as well as in areas under the jurisdiction of Arctic coastal states, has been severely damaged by illegal, unregulated and unreported fishing. As the climate warms, the threat of unregulated fishing has also emerged on the high seas in the Central Arctic Ocean. As a result of multi-round negotiations on October 3, 2018 in Ilullissat (Greenland, Denmark) in the so-called «five plus five» format – representatives of five Arctic and four non-Arctic states, as well as the European Union, the Agreement to Prevent Unregulated High Seas Fishing in the Central Arctic Ocean was signed. This new international legal document reflects national interests in the optimal use of marine living resources of the Arctic states, the Arctic indigenous peoples and residents, as well as interested states.
   MATERIALS AND METHODS. The article shows the evolution of international legal instruments to prevent illegal, unregulated and unreported fishing in the high seas. Particular attention is paid to the study of normative and doctrinal materials revealing the treaty practice of states in the Arctic enclaves. The legal interpretation of the provisions of the 2018 Agreement is also given. In the study the authors used historical, comparative-legal and some other general scientific and special legal methods.
   RESEARCH RESULTS. From an international perspective, the 2018 Agreement is an innovative legal document that reflects the interests of not only the Arctic states but also non-Arctic states. Despite concerns about the participation of the latter (China, in particular)on the part of Western states, the Agreement was nevertheless signed and ratified before possible
commercial fishing on the high seas in the Central Arctic Ocean starts. This would prevent illegal, unregulated and unreported fishing in advance and thus prevent the depletion of marine living resources in this part of the Arctic Ocean, unlike it happened in other enclaves of the high seas in the Northern Hemisphere.
   DISCUSSION AND CONCLUSIONS. The entry into force of the 2018 Agreement marked the beginning of cooperation among interested states in prevention of unregulated high seas fishing in the Central Arctic Ocean. Besides the general purpose of the Agreement, scientific cooperation between the Parties will contribute to better understandingof the least-explored area of the high seas. It is likely that the environmental cooperation in the Central Arctic Ocean will expand considerably in the future.

68-88 1359
Abstract

   INTRODUCTION. The gradual reorientation of the global energy system from carbon energy to renewables (solar, wind, tidal energy etc.) aimed at reducing human-caused environmental changes raises the issue of international cooperation in this area. Moreover, energy security issues being closely connected with the ones of national security, the international agenda on renewable energy sources is highly influenced by the geopolitical situation, too. The author analyzes the legal mechanisms for cooperation regarding renewable energy between the Member States of the European Union, an international organization that, aiming to reduce its dependence on carbon energy resources from Russia, focuses, among other things, on developing the most effective ways of such cooperation. The author defends the thesis that a legal assessment of such mechanisms' advantages and disadvantages will help assess the potential for their conceptual adaptation within the platforms where Russia's regional cooperation is implemented (i. e. the Eurasian Economic Union and the Arctic Council).

   MATERIALS AND METHODS. In the course of the study, the author used sources of EU law (regulations, directives) regulating cooperation between the Member States in the field of renewable energy, international agreements concluded in accordance therewith, as well as studies of foreign scientific works on the issues of implementation of the relevant rules. Furthermore,
assessing the possibilities of using the relevant mechanisms in regional organizations of which Russia is a member, the author uses international treaties, declarations and decisions of bodies of such international
organizations as the CIS, the EAEU, and the Arctic Council. The methodological basis of the study was formed by general scientific techniques (analysis, synthesis, induction, deduction, comparison, classification, systematization, forecasting) and private scientific techniques (formal legal and comparative legal method).
   RESEARCH RESULTS. The article provides a comprehensive legal analysis of the three main mechanisms for cooperation between EU Member States (statistical transfers, joint projects and joint support schemes). Several issues were identified that reduce their effectiveness, including uncertainty regarding the extension of the deadlines for their application after 2030, the lack of sanctions for non-compliance with mandatory targets provided for by the relevant directives, sovereignty restrictions and, in this regard, insufficient motivation for their application. It is noted that the main incentive for using the outlined mechanisms is the Member States' binding statistical goals in renewable energy use in their national energy mix. Nevertheless, despite the above issues, the author points out that the ideas of the EU legal regulation at present, after its detailed study, can be attributed to the "best practices" of international legal regulation of the use of renewable energy. In this regard, the conceptual foundations of the cooperation mechanisms between the EU Member States can be used in developing interaction within the framework of the Eurasian Economic Union and the Arctic Council (as an organization within which key decisions are made regarding the environmental security of the Arctic region).

   DISCUSSION AND CONCLUSIONS. Within the research framework, the author analyzed the EU directives and regulations governing the procedures for cooperation between its Member States regarding renewable energy and the practice of implementing such procedures. These interaction mechanisms encouraging states to achieve their own binding goals in renewable energy use seem optimal for developing international legal measures to support RES in organizations and forums with the participation of Russia. The author concludes that one of the most effective areas of such cooperation could be the development of appropriate mechanisms within the framework of the EAEU. This organization aims to integrate the market systems of the member states. Therefore, a limited circle of its members could make it possible to avoid many political contradictions that have already arisen in the negotiations on similar mechanisms in the CIS. In addition, given the strategic importance of the Arctic region for Russia, the ideas of these mechanisms could also be considered in the Arctic Council. Although, at the moment, the work of this international forum has been suspended as a reaction of other Arctic states to Russia's actions regarding the Ukrainian crisis, it does not seem to be a viable option to solve the issues of preserving the ecosystem of the Arctic.

INTERNATIONAL AND NATIONAL LAW

89-99 990
Abstract

   INTRODUCTION. Israel is a diverse and controversial state. Its laws, especially those of the area of family and marital law, are distinctly unique. The reason being that throughout its centuries-long history Eretz Israel (the Land of Israel) – the historical name of the country, the structure of norms of this branch of law has gone through a set of changes under different political regimens. The government ruling over this holy land at a certain time period was to some extent influencing current social order and the lives of Jewish people, including such aspect as the performance of religious rituals.
Considering the specificity of traditionalistic norms of Judean legal system attempts of influence on it from the outside have always been a big challenge. Those norms had to be strictly followed as it was of utmost importance for the conservation of the Jewish communities, Jewish culture and its authenticity, which for centuries has been challenged by many in attempts to modify, discriminate and even irradicate it. Hence, in this article the authors examined the most notable periods of the existence of Jewish communities in Eretz Israel. Inter alia there is an analysis of rules and measures introduced by the ruling system under the Ottoman Empire (from year 1517 to year 1917), of decrees present under the Mandate of Palestine (1922-1948), of the Israeli Declaration of Independence in 1948 and of current legislation.
   MATERIALS AND METHODS. The article isbased on the current Israeli legislation which concerns familial and marital relations, as well as on traditional religious code of rules and obligations “Halakha” which is still in action in Israel’s society. In the article Ottoman and British-Palestinian legislation is mentioned which was in force during the corresponding historical periods of time. It is also stated that the majority of the legislative acts in the area of familial and marital relations follow the principles of the International law, the rulings of the Supreme court of Israel are made according to the norms of International law and, among other things, in consideration with the Convention on the Elimination of all Forms of Discrimination Against Women of 1979. For the achievement of result general and specific scientific methods of research were applied, in particular historical-legal and comparative-legal methods of study.
   RESEARCH RESULTS. Research result consists in presentation of current Israeli familial and marital legislation and other religious traditional rules review. It is well-proven that despite the strictness of the Judean traditions, according to the clauses of the Israeli Declaration of Independence 1948, Israel being a Jewish state is also a modern and democratic one. Democratic principles of equality and humanism prevail in cases where in the proceedings regarding marital and family affairs where the rights of one of the parties are violated, every citizen of the state of Israel can appeal to the Supreme Court and the Supreme Court of Justice seeking a justified sentence and protection of one’s interests. Therefore, the result of the integration of the legal principles typical for democratic countries and the traditional norms of Judaism current legal system of the state of Israel was created. The mechanism of this system comes from the respect for the traditions whilst the main principles of democracy are also followed, namely those of justice, equality and humanism. This is what makes the legal system of Israel unique in every aspect, including the norms of familial and marital relations which integrate both traditional implementations and modern aspects.
   DISCUSSION AND CONCLUSIONS. In the frames of the present research study the authors found that familial and marital law of Israel is based on norms of the Religious law, on a special code of rules and obligations called – “Halakha”. From the standpoint of the development of law and practice, a certain role was played by the procedural rules introduced in the territory of Eretz Israel during the period of Ottoman Empire. English law had a certain influence on the development of Israeli law in general during British Mandate of Palestine. Modern Israeli legislation in the field of marriage and family relations is based on and takes into account international agreements to which Israel is a party.

INTERNATIONAL SPORTS LAW

100-118 637
Abstract

   INTRODUCTION. The purpose of the article was to examine how two different regulatory entities - international sports law and lex sportiva - interact with each other in structural and functional terms. When characterizing the structural interaction, the author set herself the task of identifying the place of each of these normative complexes in the system of a larger whole. When analyzing functional interaction, the author viewed her task as considering the process in two aspects: static (delineation of the limits of regulatory influence) and dynamic (interference of regulatory efforts). As a result of studying the dynamic aspect of functional interaction, the techniques of incorporation, legitimation, and reference were characterized; the author gave the examples of the incorporation of the norms of the International standards adopted in addition to the World Anti-Doping Code into an international legal act - the 2005 UNESCO Convention against Doping in Sport, legitimation of the norms of the 2014 Council of Europe Convention against Manipulation of Sports Competitions through the adoption of the 2015 Code of the Olympic Movement on the Prevention of Manipulation of Competitions, and two types of reference: references to the World Anti-Doping Code in an international treaty - the 2005 UNESCO Convention against Doping in Sport of 2005 and references to international legal acts in the field of human rights in the FIFA Statutes (starting from 2016) and in
the FIFA Human Rights Policy of 2017.
   MATERIALS AND METHODS. The author listed the applicable international legal acts and acts of lex sportiva, studied the scientific works of leading representatives of domestic and foreign doctrine on such issues as the criteria for recognizing a specific branch of international law, the subject of regulation and the nature of transnational law, the interplay between international law and lex sportiva. Among the general scientific methods the author utilized substrate (substantive), structural and systemic approaches; comparative and hermeneutic approaches should be mentioned as the specific scientific methods used.
   RESEARCH RESULTS. As a result of the analysis of the structural interaction of the two regulatory orders, the author identified the place of international sports law in the system of international law and the place of lex sportiva in global law. When considering the static aspect of functional interaction based on the analysis of the content of the principle of autonomy of sport, a number of exclusive subjects of regulation by lex sportiva were identified. In the course of studying the dynamic aspect, the author characterized three types of transformation - the transfiguration of norms and their transition from one normative order to another - from the point of view of legal technique (incorporation, legitimation, reference).
   DISCUSSION AND CONCLUSIONS. In the author’s opinion, international sports law is a branch of public international law at the stage of its formation, and lex sportiva is an institution of transnational global law formed as a result of the activities of non-governmental actors. The study of the static aspect of the functional interaction between international sports law and lex sportiva indicates that the issues regulated by sports organizations in an autonomous manner include the establishment of rules for sports competitions, as well as issues of the internal life of sports organizations. The dynamics of transnational processes significantly expands the interaction between international sports law and lex sportiva and the transition (transformation) of norms from one regulatory complex to another in such areas as the fight against doping, countering the manipulation of sports competitions, introducing international legal standards in the field of human rights protection.

LAW OF THE SEA

119-128 968
Abstract

   INTRODUCTION. Adopted at the end of the 20th century and amidst the need to address the most pressing challenges at the time to regulate international relations in the World Ocean (delimitation of maritime spaces, ensuring equal access of states to ocean resources etc.), the 1982 UN Convention on the Law of the Sea is an example of a legal text, some basic provisions of which require further interpretation. In addition to globalization trends reflected in the development of international law of the sea, the transformation of general international law, environmental law and research carried out under Sustainable Development Goal 14 ("Conserve and sustainably use the oceans, seas and marine resources for sustainable development") entail the need for further clarification of the content of those terms used to regulate certain aspects of international law of the sea. During the last decade, the term "marine technology" has gained relevance in
view of the increasing technological exchange and cooperation among States. At the same time, the lack of legal interpretation of the original term in the UN Convention of 1982 presents a problem, making it difficult to transfer marine technology as well as to define those technologies that can be attributed to marine technology.

   The purpose of this study is to analyze the legal content of the term "marine technology" under the UN Convention on the Law of the Sea, 1982, on the basis of the applicable international legal sources.

   The study includes a historical and legal analysis, an analysis of the applicable international legal literature as well as the content of the researched provisions of the 1982 UN Convention on the Law of the Sea in the context of the development of general international law and international jurisprudence. In addition to a direct definition of the term "marine technology", the article also analyses related concepts ("accessibility", "promotion", "related technology", etc.) used in international legal instruments and literature.
   MATERIALS AND METHODS. This study is based on the analysis of the 1982 UN Convention on the Law of the Sea. Supporting sources were also used in the analysis, such as the UN GA resolution A/RES/69/245 of 2014 on the need to increase opportunities for the transfer of marine technological potential, "Criteria and Guidelines for the transfer of marine technology" of the Intergovernmental Oceanographic Commission of UNESCO, as well as international legal literature.
   RESEARCH RESULTS. The study analyzed the meaning of the term"marine technology" under the applicable provisions of the 1982 UN Convention on the Law of the Sea; identified and gave a definition to a number of related terms used within the context of development, transfer and operation of marine technology; as well as identified and substantively defined the need
for distinguishing of the legal terms and clarifying their content in order to ensure greater efficiency of the applicable provisions of the 1982 UN Convention on the Law of the Sea.
   DISCUSSION AND CONCLUSIONS. Within the present study, the author traces the evolution of the content of the term "marine technology", analyzes its content and concludes that the scope of this term has been clarified in the context of the modern ecologisation of international legal consciousness. In this context, "marine technology" includes not only the means and tools for the extraction of marine resources and minerals from the seabed, but also, inter alia, a set of technological solutions aimed at ensuring the implementation of the concept of sustainable development in the course of economic activities at sea.



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