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Moscow Journal of International Law

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No 1 (2024)
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ISSUES OF THEORY OF INTERNATIONAL LAW

6-23 1311
Abstract

INTRODUCTION. This article discusses modern international legal concept of unilateral sanctions. The authors contribute to the emerging discussion on the qualifying of unilateral sanctions under international law.

MATERIALS AND METHODS. In this study we took into account the works of both Russian and foreign scholars in the field of international economic law, as well as analyzed documents and materials of international organizations (United Nations (UN), World Trade Organization (WTO) and others) in order to assess the compatibility of unilateral sanctions with international law. General scientific methods of cognition (analysis, synthesis, induction, and deduction), special legal methods (formal-legal, technical-legal, method of legal analogy) and comparative legal method were used in the presented research.

RESEARCH RESULTS. Presented analysis has shown that widely used term “unilateral sanctions” leads to abusive and inappropriate use of international legal term. Analysis of compatibility of unilateral sanctions with other types of coercive measures such as countermeasures, UN Security Council sanctions, retortions, reprisals have shown that unilateral sanctions do not fall under the meaning of all mentioned measures. In addition, unilateral sanctions should not be justified under the WTO security exceptions. The use of extraterritorial unilateral sanctions contradicts one of the fundamental principles of international law – principle of non-interference in internal affairs. Existing blocking unilateral sanctions mechanisms are not efficient enough to compensate negative effect posed by unilateral sanctions.

DISCUSSION AND CONCLUSIONS. Authors concluded that unilateral sanctions in most of the cases do not satisfy cumulative criteria of legitimate countermeasure. Unilateral sanctions are not equivalent to the United Nation Security Council sanctions, as there are no “checks and balances” in the decision-making process in the form of determining the degree of threat to peace and security and taking into account humanitarian exceptions. Although there is some correlation between unilateral sanctions and retortions or reprisals, retortions and reprisals posses criteria of legality and proportionality, while, unilateral sanctions are introduced at the state’s discretion without any standard. Furthermore, the authors argue that to avoid abusive use of the WTO security exceptions WTO panels have to rely on the well-balanced approach used by the Panel in Russia – Transit case. This approach shows that the context of security exception should be understood as encompassing only military and closely related to military issues and does not cover political, economic, cultural or any other interests and relations. Existing blocking mechanisms of unilateral sanctions require separate qualification under international law including compatibility with the legitimate countermeasures.

LAW OF THE SEA

24-43 655
Abstract

INTRODUCTION. In modern international and domestic maritime law, regional fragmentation of legal regulation is becoming more and more noticeable, which, in turn, objectifies and actualizes the formation of complex arrays of legal norms, united by the consistency of the political and legal positions of the contracting states that have national interests in the relevant water area, primarily-coastal states extending their state sovereignty to certain areas of maritime space. In this context, the Greater Mediterranean region should be considered as one of the most important in the world merchant shipping and naval support of international peace and security, as a basin that optimally connects the Atlantic and Indian Oceans from the point of view of logistics, which requires the formation of an appropriate scientific and methodological basis for full implementation of the fundamental principle of international cooperation in the maritime policy of the states of the region.

MATERIALS AND METHODS. To substantiate the expediency of singling out the Greater Mediterranean as an independent object of legal regulation, general and special international legal treaties, the domestic legislation of the Mediterranean states, as well as political and legal documents indicating the existence of certain disputes and situations around certain zones of the Mediterranean water area, primarily – in the Eastern Mediterranean region. To obtain reliable and substantiated results of the study, methods of scientific knowledge were used: formal-legal, logical, historical-legal, system-structural analysis. Thus, the formal legal method made it possible to clarify the content and meaning of international legal treaties concluded at different times and aimed at regulating public relations in the maritime sphere. The logical method made it possible to substantiate the need for comprehensive international cooperation of the coastal states of the Greater Mediterranean. With the help of the historical and legal method, an overview was made of both the world, Soviet and Russian practice of applying the norms of domestic and international law on issues related to ensuring international law and order in the Greater Mediterranean region. The logical method made it possible to build the necessary connections and patterns of development of international legal regulation in the Greater Mediterranean region in the general context of ongoing universal and regional political and legal processes and transformations. Using the method of system-structural analysis, it was possible to display a holistic picture of law-making and law enforcement of the Mediterranean states, aimed at the formation of unified principles and norms for the exercise of the sovereign rights of coastal states.

RESEARCH RESULTS. International maritime merchant shipping seems to be a very complex area of public relations with a large number of entities that have different legal status and, accordingly, are related to each other in a very different way.

DISCUSSION AND CONCLUSIONS. This work is devoted to the study of the main trends in the development of the Greater Mediterranean region in terms of formulating key international legal guidelines and rules of conduct for its constituent states. The object of the study is the legal relations carried out in the maritime spaces of the Greater Mediterranean as one of the key regions, which, along with its economic and political significance, is an integral zone for the implementation of the national interests of the Russian Federation, extending to the entire World Ocean.

INTERNATIONAL ECONOMIC LAW

44-56 657
Abstract

INTRODUCTION. This paper reflects historical overview of long-standing emergence of mechanisms of judicial protections of patent rights conferred by European patens which begun even in 1950-s and ended with start of operations of the Unified Patent Court in 2023. The paper demonstrates that the establishment of the similar mechanism within the Eurasian Patent Organization or Eurasian Economic Union may require different approaches because of possible centralization of industrial property protection under Eurasian Patent Organization.

METHODS AND MATERIALS. The research materials for this paper are scientific works of foreign and Russian scientists and officials of the European Patent Office and the Eurasian Patent Office, legal acts of international and regional levels and drafts thereof. Methodological basis of this research are general and special scientific methods.

RESEARCH RESULTS. This paper suggests periodization in emergence and evolution of dispute resolution mechanisms for European patents, reveals rationales for establishment of the unified patent judiciary in Europe and outlines directions for further research of prospects of creation of the similar mechanism in the Eurasian region. Some findings made in this article may facilitate the growth of such researches.

DISCUSSION AND CONCLUSIONS. European Union (EU) accumulated broad experience in establishment of the dispute resolution mechanisms for European patents. Due to uniqueness the Unified Patent Court is of great interest when researching prospect of improvements of the patent judiciary and quasi-judicial mechanisms under the Eurasian Patent Convention. However, trends of developments of the Eurasian Patent Organization and possible centralization of the regional protection of industrial property may testify that a Eurasian analogue of the Unified Patent Court would have a different institutional form.

57-79 1086
Abstract

INTRODUCTION. The relevance of the research topic is determined, firstly, by the increasing importance of energy diplomacy for solving modern problems arising in the field of international energy cooperation, and secondly, by the significance of studying the problems of energy diplomacy from the point of view of the science of international law. Despite the fact that energy diplomacy is being formed and realizing its potential in the international legal environment, it is not given adequate attention to its role in the legal literature, including in scientific works on international law, which, in turn, looks like a gap in international legal science. The purpose of the work is to substantiate the international legal concept of energy diplomacy, to identify its connection with the classical model of diplomacy and at the same time specific, to objectively identify the main directions of the relationship between energy diplomacy and international law.

MATERIALS AND METHODS. When writing the work, scientific works related to the topic, international treaties and documents of international law, acts of national legislation of states are analyzed. General scientific and special methods of cognition, including comparative legal and formal legal, were used as a research method.

RESEARCH RESULTS. Energy diplomacy is derived from the “classical” model of diplomacy. There are various interpretations of diplomacy, focusing on its various aspects and manifestations. The article substantiates the understanding of diplomacy as a means of implementing the state’s foreign policy through the activities of special entities (bodies of foreign relations) using non-military techniques and methods in accordance with international law. The evolution of diplomacy and the emergence of its new forms are traced, their specificity and international legal component are noted. Taking into account the specifics of energy, international energy cooperation, their legal support based on the potential of international and national law, the independent nature of energy diplomacy, its increasing role in modern conditions is substantiated. The specific features of energy diplomacy are identified and its concept is proposed, taking into account the international legal component. In modern conditions, full-fledged regulatory and institutional legal foundations of the EU’s foreign energy policy and energy diplomacy have not developed. It is noted that the legitimacy of unilateral restrictive measures applied in energy diplomacy by a number of states is indisputable from the point of view of international law. The main directions of the relationship between energy diplomacy and international law are outlined in detail, options for legitimizing the national interests of states in the energy sector based on the potential of international law are highlighted.

DISCUSSION AND CONCLUSIONS. The main conclusions of the study are as follows. Firstly, energy diplomacy is a new functional area of diplomatic activity. It has a single essence with “classical” diplomacy (to serve as a means of implementing foreign policy, in accordance with international law) and, at the same time, is characterized by a number of features derived from the energy sector and energy law (a special focus on the implementation of the goals and objectives of the state's foreign energy policy, the participation of energy departments in it and the connection of energy companies, methods used in it). Secondly, energy diplomacy and international law in the process of their development and functioning are mutually linked and have a reciprocal influence. International law, firstly, defines the legal framework and forms of implementation of energy diplomacy (as well as diplomatic activity in general), and secondly, plays a decisive role in legitimizing the national interests of states in the field of foreign energy policy carried out through energy diplomacy. In turn, energy diplomacy, relying on the potential of international law, contributes to ensuring energy security (national and international) and, thereby, to maintaining the international energy order. In general, energy diplomacy influences the process of creation and operation of international law norms and contributes to the development of international law.

PEACEFUL SETTLEMENT OF INTERNATIONAL DISPUTES

80-89 394
Abstract

INTRODUCTION. This article discusses the ap­proaches developed by the courts of the Asia-Pacific region (on the example of Singapore, Hong Kong and Malaysia) on the relationship between the arbitrators’ discretion when considering disputes and the obser­vance of the principle of natural justice.

The purpose of the article was to analyze the ap­proaches of national courts to the interpretation of the principle of natural justice in the context of the imple­mentation by arbitration of its discretionary powers in resolving disputes submitted to them. The risk that the arbitrators fail to find a balance between discretionary powers and natural justice is that the award may be set aside.

MATERIALS AND METHODS. The study was based on the analysis of national legislation of the countries of the Asia-Pacific region, the practice of ar­bitration centers and judicial bodies, as well as the ex­isting positions of researchers specialized in the natu­ral justice issues and practitioners in the field of international commercial arbitration. The methodo­logical basis of the research includes general scientific (analysis) and special legal (comparative legal) methods.

RESEARCH RESULTS. International commercial arbitration is widely regarded as an alternative dis­pute resolution mechanism to litigation in national courts. However, national courts are often involved in reviewing arbitral awards in the context of their set­ting aside in order to ensure that the arbitral proce­dure complies with the fundamental principles of nat­ural justice. The understanding of the principle of natural justice is not the same in all jurisdictions and depends on the venue of the arbitration, as well as on what rules the parties have agreed to govern the pro­ceedings. Arbitral discretion is important in filling the gaps left by the rules and guidelines formulated by various arbitral institutions and practices.

DISCUSSION AND CONCLUSIONS. The author considers the approaches of the courts of Singapore, Hong Kong and Malaysia ensuring a balance between arbitrators ‘discretion and compliance with the princi­ple of natural justice, and also, based on the analyzed practice, suggests ways to minimize the risk of annul­ment of an arbitral award due to a violation of natural justice, namely the need for an established procedural protocol, which would provide certainty and eliminate problems arising in connection with the application of discretion by arbitration.

INTERNATIONAL PRIVATE LAW

90-106 310
Abstract

INTRODUCTION. The development of the statuto­ry regulation of institutional arbitration in Spain has been briefly outlined at the present study. The legal status of arbitral institution, the legal nature of its rights, obligations and liabilities have been examined. The role of arbitral institutions at the current arbitra­tion situation in Spain has been briefly outlined.

MATERIALS AND METHODS. The study has been based upon Spanish legislation, key judicial acts and works of Spanish and Latin American experts in the field. General scientific methods of knowledge – analy­sis, synthesis, induction and deduction – have been applied during the study. Special legal methods – for­mal-legal, technical-legal, the method of legal analogy, as well as the comparative legal method – have been also applied.

RESEARCH RESULTS. The study demonstrates three factors which obstacle a full-scale development of institutional arbitration in Spain. The first factor is that the commercial arbitration itself has been a new phenomenon and it has been still unknown to the most of the Spanish population except a rather narrow community of professionals. As a consequence, the most of Spanish business community members put their best faith upon the judicial way of disputes reso­lution. As another consequence, confidentiality of pro­ceedings and absence of appellation remedy have been treated rather as weaknesses than advantages of arbi­tration. The second factor is that there has been a deep-rooted point of view across Spanish business and lawyers communities that an arbitrator is rather legal representative of the party he has been appointed by. Which provokes reasonable doubts regarding inde­pendence and impartiality not only of an arbitrator, but an arbitral institution as well. The both factors outcome a low number of arbitrations in Spain and activate the third one. The third factor is a rather low level of competence of arbitrators and arbitral institu­tions staff due to the lack of practice. The study dem­onstrates significant efforts of the leading Spanish ar­bitral institutions in order to eliminate the factors.

DISCUSSION AND CONCLUSIONS. The devel­opment of the statutory regulation of institutional ar­bitration in Spain has been briefly outlined. The legal status of arbitral institution, the legal nature of its rights, obligations and liabilities have been examined. The role of arbitral institutions at the current arbitra­tion situation in Spain has been briefly outlined. Based upon the results of the study, the author comes to the conclusion that despite a significant progress in im­proving of legal regulation of institutional arbitration and the commercial arbitration as a whole, Spain has still quite a long way to go in order to create an effi­cient system of commercial arbitration and to become an attractive jurisdiction for international commer­cial arbitration as well.

INTERNATIONAL AND NATIONAL LAW

107-122 433
Abstract

INTRODUCTION. This article provides a compre­hensive analysis of the regulatory frameworks govern­ing the information technology (IT) sector in both Russia and Sweden and encompasses a comparative assessment of key legal instruments, concepts, and regulatory approaches, including the responsibility for cybercrimes, licensing procedures, standardization practices, and the safety of critical informational in­frastructure. Additionally, this article examines the roles and functions of major governing authorities in both countries.

MATERIALS AND METHODS. The article is based on relevant legal acts of Russia and Sweden. While there are certain specific laws focused entirely on the informational technologies, some provisions can be found in other types of legal documents (for example criminal codes or governmental regulations). Employ­ing a comparative approach, the study delineates the scope and authority of state institutions involved in the IT sphere.

RESEARCH RESULTS. Both Russian and Sweden exhibit similarities when it comes to definition of es­sential concepts such as critical infrastructure, reflect shared concerns regarding for example security issues. Main laws in the area of information technology con­tain a spectrum of key terms, including but not limited to information and communication network / elec­tronic communication network, information system operator, and information protection / network and information system security. Although the list of key definitions may appear quite similar, the Swedish leg­islation tends to offer broader definitions with the in­tention of encompassing larger domains within IT technologies, while the Russian legislators focus on more specific terms. However, while Sweden aligns closely with European Union (EU) regulatory frame­work, Russia adopts a more expansive approach, ad­dressing emerging technological challenges such as AI. In conclusion, achieving effective IT regulation neces­sitates finding a balance between international con­sistency and national adaptability to ensure strong cybersecurity, foster innovation, and maintain regula­tory flexibility in a dynamic digital environment.

DISCUSSION AND CONCLUSIONS. Sweden’s re­liance on implementing EU regulations has its benefits such as harmonisation, interoperability, adopting the internationally recognised practices, easier market ac­cess, etc. However, this approach may limit the coun­try's ability to meet its specific needs and may mean additional administrative burdens associated with compliance with EU directives. Moreover, changes in EU regulations could lead to a necessity to update do­mestic laws, potentially causing regulatory vacuum or legal collisions, especially in such sphere as the IT sec­tor. Nowadays, when for example the AI and its risks are on the daily agenda one can not look away and wait for the international community to agree on the applicable regulation.



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