No 1 (2017)
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ISSUES OF THEORY OF INTERNATIONAL LAW
3-19 977
Abstract
The оccurrence and the futility of the scientific debate on the most debated in the scientific
literature of the fundamental problems of the General theory of international law related to same – lack of resolution of complex theoretical problems, which can be called the main problem of the theory of international law over the past century and a half. It is based on seemingly irreconcilable differences. So, on the one hand, international legal norms can (under certain conditions) regulate relations with participation of individuals but, on the other hand, individuals are subjects of international law and relations involving them are not international intergovernmental relations, i.e. subject to international law. In the first part the article provides a criticism of the main directions taken in science attempts to solve this problem: theories of transformation; concepts recognition relationships with participation of individuals regulated by norms of international law, international relations; concepts of international legal personality of individuals; claims that Private international law does not have its own content, and represents only teaching and/or scientific term. In the result it is concluded that none of these concepts does not solve the basic problem of the General theory of international law. In the second part of the article offers the solution.
literature of the fundamental problems of the General theory of international law related to same – lack of resolution of complex theoretical problems, which can be called the main problem of the theory of international law over the past century and a half. It is based on seemingly irreconcilable differences. So, on the one hand, international legal norms can (under certain conditions) regulate relations with participation of individuals but, on the other hand, individuals are subjects of international law and relations involving them are not international intergovernmental relations, i.e. subject to international law. In the first part the article provides a criticism of the main directions taken in science attempts to solve this problem: theories of transformation; concepts recognition relationships with participation of individuals regulated by norms of international law, international relations; concepts of international legal personality of individuals; claims that Private international law does not have its own content, and represents only teaching and/or scientific term. In the result it is concluded that none of these concepts does not solve the basic problem of the General theory of international law. In the second part of the article offers the solution.
INTERNATIONAL SECURITY LAW
20-27 1912
Abstract
There is no global regime of Non-Proliferation of Small Arms and light weapons. A lot of international organizations, UNO – is most active among them, try to regulate this sphere. In 2001 UNO adopted the United Nations Programme of Action on Small Arms and Light Weapons, which, among all, presupposes regular observations of its implementation. (The last one was made in 2016). In 2013 the UN General Assembly adopted the Arms Trade Treaty (ATT)10, which is signed by 130 states and ratified by 91. Russia now considers it be inappropriate to sign the ATT. Among some other sources of international law in this question the Wassenaar Arrangements of 1996 are, perhaps, the first to be mentioned. The UN sanctions decisions (embargo) in this sphere ere not the kind of international liability but the measures of compulsion with the aim of restoration
of the disturbed peace order. But the UN embargos on the arms supply are not effective. Historically beginning from 1800 to introduce embargo on the territory of Russia is prerogative of the first person of the state. In the Russian Federation now that is the President of the state. The activity of terroristic organizations is not under the mercy of political and diplomatic instruments of peace keeping. So the important task of international policy is the control on manufacture and proliferation of military aimed production.
of the disturbed peace order. But the UN embargos on the arms supply are not effective. Historically beginning from 1800 to introduce embargo on the territory of Russia is prerogative of the first person of the state. In the Russian Federation now that is the President of the state. The activity of terroristic organizations is not under the mercy of political and diplomatic instruments of peace keeping. So the important task of international policy is the control on manufacture and proliferation of military aimed production.
INTERNATIONAL LEGAL ISSUES OF TERRITORY
28-40 1156
Abstract
The paper summarizes the legal experience of Canada, Denmark (relating to Greenland) and Norway in drawing straight baselines in the Arctic which join the furthest seaward points selected by a relevant coastal state in the context of applicable rules of the Contemporary International Law. The authors of the paper have compiled the basic legal arguments, which were relied upon by the three Arctic Coastal States mentioned above to show the “legal purity” of their straight baselines along the Arctic coasts. Legal evaluation of such a practice of Norway, Canada and Denmark is suggested in the paper in the context of relevant rules of the Convention on the Territorial Sea and Contiguous Zone, 1958, and UNCLOS 1982, and the 1951 Judgment of the ICJ and relevant documents of the ILC. It is noted in the paper that the admissibility of such particular
application by the three Arctic Coastal States of international legal provisions on baselines is well grounded by the complex of geographical, ecological and historical factors relating to a specific Arctic coast and to its concrete territorial sovereign. The conclusion is suggested that in spite the fact that the US protested against some of the straight baselines along the arctic coasts still the practice of Canada, Denmark and Norway in drawing straight baselines in the Arctic is in full accordance with applicable rules of the Contemporary International Law. It is also shown in the paper that the establishment of such straight baselines has a positive impact on the extent of sovereignty and sovereign rights of each of the respective Arctic Coastal State. Identification and assessment of arguments within international law in favor of establishment of straight baselines in the Arctic ocean - as these arguments were put forward by Denmark, Norway and Canada - has a practical value for the Russian Federation, because in accordance with the current Russian legislation straight baselines are not applied along the most part of its Arctic coast and instead “normal baselines” are established indicating the low-water lines along the major part of its arctic coast . It is concluded also that in such circumstances international legal experience of Canada, Denmark and Norway in drawing straight baselines along its arctic coasts is to be taken into the account by the Russian Federation as well as the legal justification of such straight baselines.
application by the three Arctic Coastal States of international legal provisions on baselines is well grounded by the complex of geographical, ecological and historical factors relating to a specific Arctic coast and to its concrete territorial sovereign. The conclusion is suggested that in spite the fact that the US protested against some of the straight baselines along the arctic coasts still the practice of Canada, Denmark and Norway in drawing straight baselines in the Arctic is in full accordance with applicable rules of the Contemporary International Law. It is also shown in the paper that the establishment of such straight baselines has a positive impact on the extent of sovereignty and sovereign rights of each of the respective Arctic Coastal State. Identification and assessment of arguments within international law in favor of establishment of straight baselines in the Arctic ocean - as these arguments were put forward by Denmark, Norway and Canada - has a practical value for the Russian Federation, because in accordance with the current Russian legislation straight baselines are not applied along the most part of its Arctic coast and instead “normal baselines” are established indicating the low-water lines along the major part of its arctic coast . It is concluded also that in such circumstances international legal experience of Canada, Denmark and Norway in drawing straight baselines along its arctic coasts is to be taken into the account by the Russian Federation as well as the legal justification of such straight baselines.
INTERNATIONAL ECONOMIC LAW
41-49 2548
Abstract
The paper discusses the legal implications of the 2016 decision to withdraw Britain from the European Union. The authors explore the international legal aspects of the procedures of a British exit from the EU. In this regard the authors analyze article 50 of the 2007 Lisbon Treaty. Special attention is paid to the study of the legal implications of the UK investment and trade agreements. In particular, the authors go into detail about the future of intra and extra-EU BITs as well as UK trade agreements. The paper also contains some points of the Plan for Britain set out by Prime Minister Theresa May, which include the top priorities that the UK government will use to negotiate Brexit. In conclusion, the authors predict the most probable scenarios for the “post-brexit” relations between the UK and the EU. Possible negociation outcomes are as follows. The UK could remain part of the European Economic Area and have a relationship with the EU like Norway, Iceland and Lichtenstein. The UK could seek to negotiate a comprehensive free trade agreement with the EU as Canada and South Korea have done. The purest form of “out” requiring no formal connections or negotiated agreement is WTO-only relationship.
МОРСКОЕ ПРАВО
50-63 963
Abstract
In some Russian publications, the Commission on the limits of the continental shelf established in accordance with the UN Convention on the law of the sea 1982 (UNCLOS), was authorized to resolve legal issues of delimitation of the continental shelf, for example, in a dispute in the Arctic ocean. In this article we prove the inferiority of such a conclusion. The Commission on the limits of the continental shelf, consisting of geologists and other experts in the field of natural Sciences, is not entitled to reach conclusions on legal questions relating to the delimitation of the continental shelf. Powers of the Commission our recommendation on compliance with the geological and geomorphological conditions according to the “delimitation” of the continental shelf of the state from the international seabed area. The separation of the concept of “delineation” and “delimitation” contributes to the correct interpretation of norms of the UNCLOS: in accordance with article 76 of the UNCLOS the functions of the Commission on “delineation” are not a prerequisite for the implementation by States of their rights to “delimitation” in accordance with article 83 of the UNCLOS. From the point of view of the dispute on the delimitation of the Arctic shelf, the attempts of some scholars to prove the existence of the legal mandate of the Commission allows for the possibility of ignoring beneficial for Russia a special legal circumstances, historically in the polar region. The implementation of these theoretical constructs contain the risk of territorial loss from the Arctic States parties to the UNCLOS. Coastal Arctic States there are no duties on the “delineation” of the continental shelf and international seabed area; they have no legal need to appeal to the Commission. The coastal state may exercise its right to “delimitation” the whole Arctic shelf in agreement with each other – without recourse to the Commission.
INTERNATIONAL CRIMINAL LAW
64-77 1134
Abstract
The concept of criminal responsibility of a state is addressed on the basis of the international development law through the analysis of its low applicability. The author presents international legal arguments in favour of the concept of international criminal responsibility of states in the framework of the research school in international criminology.
78-87 1296
Abstract
At the present moment the international community has developed a multilevel system of coordinated and immediate counteractions, capable of eliminating any terrorist threats and challenges. However, spate and high rate of terrorist activities raise the question of the essence, possibility of preventive measures, effectiveness and prospects of current international cooperation on suppression of acts of terrorism. There is a wide-spread opinion that the international community is incapable of establishing mechanism on the basis of international law for suppression of modern acts of terrorism. The research of the specificity of states cooperation partially proves this opinion: modern system of counterterrorism cooperation is a limited mechanism. The article contains analysis of modern theoretical and practical aspects of international legal counterterrorism cooperation, and prospects for further development in the context of new threats and challenges.
NUCLEAR LAW
88-97 943
Abstract
The article contains analysis of nuclear environmental problems of the Arctic region under the International Law. It seems important to further develop cooperation to strengthen the international legal framework for nuclear and environmental security in the region, and to improve the Russian national legislation. Such cooperation should be aimed, inter alia, at creating a regional treaty mechanism for responding to potential nuclear accidents by concluding an appropriate intergovernmental agreement on coordination of cooperation under the Conventions on Early Warning Notification and on Assistance in the Case of a Nuclear Accident or Radiological Emergency. Russia is the only state in the world that owns and operates a civilian nuclear icebreaker’s fleet on the Northern Sea Route. In the coming years the first floating nuclear power plant will start operating in the Chukotka Peninsula. In case of its export abroad, it will be required to create additional international legal instruments. Russia has ratified the 1963 Vienna Convention on Civil Liability for Nuclear Damage but has not yet adopted legislation on its financial implementation. It is required to adopt such a law as well as to accede to the revised 1997 Vienna Convention. Nuclear-ecological problems in connection with the elimination of the “nuclear legacy” of the Cold War are still on top of the agenda. That includes the fate of the radioactive stuffs and waste flooded in the Arctic seas. The main conclusion of the article is that the existing international legal base is ipso facto sufficient for the continued solution of Arctic nuclear ecological problems. Additional focused efforts of all interested Arctic partners are required.
INTERNATIONAL AND NATIONAL LAW
98-109 1264
Abstract
Combating foreign terrorist fighters (individuals who travel abroad to participate in acts of violence as part of an uprising or of a non-State armed group) is a relatively recent challenge to the global counterterrorism effort. In addition to their direct participating in terrorist activities in the territories of foreign States, their returning is a serious destabilizer for many States. Upon return and after having received training for terrorism in Syria and Iraq, these individuals may either join local groups or set up sells of the international terrorist networks. They actively contribute to the commission of terroristic acts, collection of funds to finance their terroristic activities, spreading of violent extremism and recruiting new members. Practically, an active international cooperation is a prerequisite to a successful combating of foreign terrorist fighters. This cooperation involves developing coordinated preventative measures in respect of travelling abroad for the purpose of terrorism as well as punishing those responsible for participating in terroristic activities in a State, which is not that of their residence. This article examines the international legal basis for combating foreign terrorist fighters. It includes the UN Security Council resolution 2178 (2014) on threats to international peace and security caused by foreign terrorist fighters and the Riga Additional Protocol to the Council of Europe Convention on the Prevention of Terrorism of 22 October 2015, opened for signature. The article further shows how the need to combat foreign terrorist fighters has led to the criminalization of their activities in many States. It concludes that the Russian legislator should also criminalize the fact of travelling abroad for the purpose of terrorism and other actions of the foreign terrorist fighters and their accomplices.
INTERNATIONAL PRIVATE AND CIVIL LAW
110-122 1297
Abstract
The article refers to the issues of applicable law determination for intestate succession cases in Russia and is seeking for feasible solutions basing on foreign experience. The goal of the research consists in finding the ways to improve the Russian private international law in force. For the purpose, the authors have conducted a comparative analysis of the advantages and the disadvantages of the Russian and foreign legal acts containing intestate succession conflict of laws rules. The introduction focuses on the essence of the difficulties related to the unification of intestate succession legal regulation. The main part of the article outlines the imperfections of the Civil code of the Russian Federation, such as dépéçage of the conflict of laws rule and connecting factor of last residence that does not always allow to apply the law that is really connected to the hereditary relation. The following part provides the insights of the intestate succession conflict of laws regulation in the Hague Convention on the Law Applicable to Succession to the Estates of Deceased Persons concluded on August 1st, 1989 and in Regulation (EU) No 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession. The conflict of laws regulation of these acts leads to the conclusion that the valid article 1224 of the Russian Civil code could be improved. For instance, the authors suggest to apply the closest connection principle and to implement the principle of the unity of the succession in Russian private international law.
123-130 1026
Abstract
The aim of the present Article is to analyze the impact of the Principles of Corporate Governance G20 / ОECD on the system of the effective corporate governance in the area of travel-compliance. Travel-compliance is a particularity of the compliance system, which has come to Russia recently. It is mainly used by large-scale corporations. The present article gives an example of Daimler AG and other companies to show the effectiveness of compliance in case of introduction of travel policies to the compliance policy of corporations and their strict execution by the employees. The author researches in detail practical application of the Principle I of the document for the economic effectiveness at the level of particular corporations. Another result of the present Article is in the substantiation by the author of the conclusion that application of the Principles of Corporate Governance G20 / ОECD at the level of particular corporations represents a good means of counter fighting corporate corruption, execution of the legal and ethic aspects of compliance, minimization of risks and complete compliance with the laws. General, specific and particular research methods are used in the Article, including systemic, comparative, historical and juridical research methods. The practical value of the article is in the possibility to apply its main provisions and results in scientific and academic activities while discussing questions on application of the Principles of Corporate Governance G20 / ОECD and Compliance system is general and Travel-Compliance system in particular.
VOICES OF THE YOUNG
131-140 1325
Abstract
States apply unilateral restrictive measures with increasing frequency. The United States is a country that uses such measures most actively for its foreign policy purposes. In American legal doctrine term “unilateral restrictive measures” is often mistakenly identified with term “sanctions. American Law provides for two reasons for “sanctions” application – while declaring national emergency and without that. The first one is most frequently used and applied – as a rule – on the basis of President’s Order. Criteria for acknowledging certain situation “extraordinary and threatening to US interests” are vague thus creating broad opportunities for power abuse. Sanctions against Russia were enforced in 2014 after Moscow’s actions were construed as threatening to US security. The question of unilateral sanctions’ legality is highly controversial. Exterritorial character of certain US restrictions is especially criticized. Effectiveness of American restrictions is not obvious. Yet, combined with other foreign policy instruments they can yield desired results.
BOOKSHELF
141-145 972
Abstract
The article (book review) provides the general outline of the book «WTO Law: Theory and Practice of Application» / directed by Doctor of Law, Professor L.P. Anufrieva, published in 2016 by Norma-Infra-M. (hereinafter: book). The book can be considered as a comprehensive legal study providing the most up-to-date and fundamental analysis in the Russian Legal Science of the problematic aspects of functioning of the WTO legal order from the theoretical and practical points of view. The subject-matter of the book embraces all main features of the modern WTO Law such as the role of the WTO in the regulation of international trade (chapter I), WTO Law as a category of the international law science (chapter II), structure and system of the WTO Law (chapter III), the closed treaty regimes and the WTO Law (chapter IV), application of the WTO Law and national legal systems (chapter V), dispute-settlement and implementation of the WTO Dispute-Settlement Body decisions (chapter VI).
НЕКРОЛОГ
ISSN 0869-0049 (Print)
ISSN 2619-0893 (Online)
ISSN 2619-0893 (Online)