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Moscow Journal of International Law

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No 2 (2017)
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https://doi.org/10.24833/0869-0049-2017-2

ISSUES OF THEORY OF INTERNATIONAL LAW

3-17 2102
Abstract
International legal norms can (under certain conditions) directly regulate relations with participation of individuals and legal entities). Based on the idea that the legal nature of the source of rules, governing social relations, determine the nature of the (generic and standard accessory) arising legal relations, as well as the personality of people involved, an as-sumptive conclusion is that individuals are subjects of international law, and the relationship with their participation - international inter-state relations. On the other hand, individuals are subjects of international law and relations including their participation are not international inter-state re-lations. The solution to this problem, which seems to be unsolvable, is associated, firstly, with the appearance as a new independent type of public relations cross-border social relations. Secondly, the fact that the basis of determination of this or that model is not a typical affiliation of regulations
or their source, but the subject and method of legal regulation. In appropriate cases, individuals and legal entities are subjects of cross-border relationships. As conflict and substantive rules of all legal systems licensed by each state to settle cross-border relations have started to participate in the mechanism of legal regulation of these relations, there was a formation of not a new type of legal system, but a new type of the structural elements of the law itself, which we call inter-system entities. Formations of this kind have become important elements of the law, and they even received the name of «law» (private international law, international customs law, international tax law etc.), although they are not legal systems or separate branches of national law. In appropriate cases, individuals and legal entities are not subjects of international law, but subjects of intersystem entities.
18-28 995
Abstract
The article contains a brief review of the historical genesis of the state and an analysis of its legal characteristics. The author distinguishes four types of state: ancient state, feudal state, modern state and postmodern state. The ideologists of the modern state are J. Bodin, who defined the state through the notion “sovereignty”, and T. Hobbes,
who developed the theory of social contract. The Hobbes model was transferred to the international community: the state acting within the international order began to be considered by analogy with the individual acting within internal order - as a subject who had absolute freedom, but voluntarily refused it for the purpose of ensuring safety ant protecting acquired rights. Although international law does not impose strict  requirements on the elements forming the state, it presumes a certain character of the relationship between them. This relationship should be expressed in the sovereign and effective exercise of the government’s power over the population of the state within the territory of the state. A logical defect of the concept of sovereignty is that the absolute nature of state power, on which it insists, contradicts the state’s boundness by international law. In addition, using only one aspect to describe the state (manifestation
of the will), it ignores all the others. Indeed the state is not only the government that makes power decisions, but also the product of historical evolution, the cultural space, the national formation, the way to ensure the common good, the scope of the common will, the mechanism of social communication, etc. The author outlines five scenarios for the future. Whichever one is implemented, it is obvious that a society that first formulates a new agenda and implement it will gain the most important geopolitical
advantages.

HUMAN RIGHTS

29-44 1888
Abstract
Human rights law has had a powerful influence on general international law. It sets the vector of the progressive development of general international law for decades to come. Under its influence the international community began to perceive and states began to implement national sovereignty in other way and the person acquired many characteristics of international personality. Classical international law began to emerge as the global law largely due to the fact that Human rights law is the right of result, and also due to non-state, including international judicial, rulemaking, that has assigned to Human rights law self-development and constant adaptation to the changing needs of social and moral evolution of society. However, at some point, some states has ceased to encourage the international judicial activism, for example, the United Kingdom, France, Germany, the countries of Eastern Europe and, last but not least, the Russian Federation. Now international judicial rulemaking is accused of limiting freedom of national discretion in struggle against the recent crisis experienced by society due to increased terrorist threats, weakening of international competitiveness, influx of illegal migrants and refugees. In addition, a number of controversial legal positions promoted by international judicial bodies also met opposition. The authors see the possibility to eliminate the growing extremely dangerous and harmful conflict between the states and international judicial bodies in strict adherence to the latest requirements of subsidiarity,
restraint, neutrality and political impartiality and in that the international judicial bodies should focus mainly on search for a reasonable and generally acceptable balance between the interests of the individual and society, the individual and the state and between individual rights of different types.
45-53 1202
Abstract
Appendix 1 to the Convention on International Civil Aviation (Chicago Convention of 1944) contains standards and recommended practices (SARPS) concerning medical examination of aviation personnel. It enhances security of the flights and provides the basis for  effective national medical examination system, which requires a lot of responsibility
and work efforts. The current Russian medical system not only allows to make a decision whether to admit personnel to professional activity, but also provides medical supervision between the examinations, conducts preflight and post-flight check-ups, and creates an effective national basis for such job. This system has been established in Russia long time ago, and has a comprehensive structure. However, there is a need to improve the current legislation and regulations on medical examination of aviation personnel.

LAW AND POLITICS

54-62 1089
Abstract
In January 2017, an unconstitutional change of power was carried out in the Islamic Republic of the Gambia with use of force carried out by two regional organizations - the African Union and the Economic Council of West African States (ECOWAS). This action violated principle of non-intervene in matters which are essentially within the domestic jurisdiction of any state and the principle of refraining in their international relations from the threat or use of force. Recognition of the victory of opposition candidate A/Barrow by ECOWAS does not give legal grounds for qualifying the invasion as intervention by  invitation. By the time of the military intervention, A. Barrow did not take office legally. The UN Security Council Resolution 2337 (2017) is based exclusively on the documents of the African Union and ECOWAS and has no reference to any universal international legal instrument, including the UN Charter. It was not adopted on the basis of Chapter VII and did not authorize any bodies or organizations for certain actions and did not authorize
the use of force. The use of force against the Gambia was illegal, and the possible consequences of these actions for international law as a whole are considered.

AIR LAW

63-70 5500
Abstract
Among nine «freedoms of the air» (commercial rights) in international air carriage two of them – eight and nine – are of special nature. They permit foreign air companies to perform сabotagе carriage within the territory of foreign state. And the nine freedom, contrary to the eight one, does not presupposes return of the foreign air company to its own state (so called «pure cabotage»). States prefer to open by this there internal aviation market, as a rule, only in exclusive cases of shortage their own aviation while it is strictly necessary to contact with distant points on their territory. It happens sometimes that the right of the nine freedom is given under political motives or to stimulate competition within the aviation market. Under Article 7 of the Convention on International Civil Aviation 1944 (Chicago Convention) cabotage may be granted to foreign air carriers but not at the exclusive bases. In Russia the right of the nine’s freedom is not grunted. But it is high time to do it on certain air routes.

SPACE LAW

71-86 1682
Abstract
Adoption of the US Space Resource Exploration and Utilization Act of 2015 (US Act of 2015) led to setting of diverse legal objectives and issues that are primarily subject to regulation within the framework of the international space law (ISL). The US Act of 2015 defines “space resources” and asteroid resources” as well as creates rights of the US citizens to “possess, own, transport, use and больsell” the obtained space and asteroid resources “in accordance with applicable law, including the international obligations of the United States”. There are objective doubts on the issue that this national law can be directly applied in view of the absence within the framework of ISL of a specific international legal regime of natural resources of the Moon and other celestial bodies. ISL does not contain applicable specific norms and principles nor does it directly prohibit
activity on utilization of natural resources as well as other commercial space activities. Moreover, in the absence of such a prohibition, a possible interpretation is that “natural resources not in place” as contrasted to “natural resources in place” (appropriation of this category is prohibited according to the Moon Agreement of 1979) are not subject to the founding principle of non-appropriation of the Moon and other celestial bodies and can be used and appropriated in case of compliance of such activity with corresponding international obligations. Keeping in mind that the actual ISL does not provide a specific international legal regime of the exploration and use of natural resources a conclusion is to be made that the notion of “international obligations” for the purposes of the US Act of 2015 (as well as the comparable Luxembourg draft law of 2016) cannot be fully and clearly understood now. This fact primarily as well as other open issues at the national level impact on the possibility of implementation of this law. Moreover, in view of the NASA Asteroid Redirect Mission more legal issues are to be solved regarding specifically the legal status of asteroids. In this context of help may be definition of the notion “celestial body’ that remains “open” in the ISL. Initiatives on the need of coordination of a specific international legal regime are now presented at diverse levels: at the UNCOPUOS Legal Subcommittee, by The Hague Space Resources Governance Working Group, in doctrine as well as in papers presented at symposiums dedicated to the ISL issues; consideration of this issue seems also possible at the upcoming UNISPACE 50+. It seems also of help to consider the international legal experience of regulation of use of natural resources of other territories beyond the national jurisdiction
with corresponding development in accordance with the specific nature of the outer space activities. Norms and principles of a potential specific international legal regime of natural resources of the Moon and other celestial bodies can be coordinated in various forms and at different levels. Of importance is the participation of most subjects of international law and the establishment of such a regime before arising of any related international disputes.

INTERNATIONAL CRIMINAL LAW

87-96 2630
Abstract
Crimes against peace were first enshrined in the Statute of the International Military Tribunal (Article 6(a)), which was a novel in international law. In the present Article analyzed is the formation of the legal concept of responsibility for the crime of aggression in the Statute and the Judgment of the International Military Tribunal and its meaning. The author notes that at the London Conference in 1945, the participants in fact deviated from the definition of an «aggressive war», while in the Judgment of the IMT the concepts of aggression and aggressive war are used almost synonymously. The Nuremberg trial has shown that international criminal justice plays an important role in the maintaining peace and international security; the International Criminal Court continues this trend. The jurisdiction of the International Criminal Court (Article 5) potentially includes the crime of aggression. The development of its definition was completed at the Review Conference of State Parties of the Rome Statute of the  International Criminal Court in 2010 (Kampala, Uganda) by adoption by consensus of amendments containing the definition of the crime of aggression (Article 8-bis) and the conditions for the exercise of jurisdiction (Article 15-bis and 15-ter). As the basis for the definition of the crime of aggression, the wording of Article 6a) of the Statute of the Nuremberg Tribunal is taken. The above definition, insofar as it relates to the definition act of a state, fully follows the main points of the definition of aggression of the UNGA 1974(3314). Articles of Elements and Understandings of the crime of aggression should be understood in the light of Art. 31 (3) (a) of the Vienna Convention on the Law of Treaties. States have reached agreement on the mechanisms of the exercise of jurisdiction by the Court. In order for this definition to become operational, at least thirty countries need to be ratified (this was achieved in autumn 2016). Moreover, the entry into force of the amendments is the subject of an additional decision of the states on this.

МЕЖДУНАРОДНОЕ И НАЦИОНАЛЬНОЕ ПРАВО

97-106 1789
Abstract
The article concerns the issues of formation and development of the Swedish election law and electoral system. The author describes the history of the representative body – the Riksdag, that first assembled in the Swedish town of Arboga in 1435; the institution of Riksdag’s four chambers that up till the second half of the 19th century represented various social estates (the nobility, the clergy, the burghers and the yeomanry). The origin of the electoral law in Sweden dates back to early 1800s, when the legislative body was undergoing significant reforms. After the 1866 representative reform, the class-based four-chamber Riksdag was replaced with an elected two-chamber body that represented the country’s entire population. Elections to the upper chamber were held indirectly by the council members of landstings (Swedish counties) and by the  authorized delegates of town councils in larger towns. Riksdag’s second chamber was elected directly by the voters, although high electoral voting qualifications (based on age, income, and gender) remained in place. The article gives special attention to the electoral reforms of the early 20th century, the proclamation of voting rights for all that had been advocated in Sweden for two decades (from 1896 to 1919). These were the reforms that affected the present-day electoral system and election law of this Scandinavian country. It was due to them that the majority system was substituted with the proportional system, age qualifications were lowered and women were granted voting rights. These reforms laid the foundation for the current electoral system and election law of Sweden. The article discusses the outcome of the electoral reforms
conducted in the second half of the 20th century. The most significant ones resulted in the transition from bicameralism to unicameralism, and the legislative proclamation of the key principles of election law (universal, equal, free, direct and secret voting rights). The article separately analyses the modern trends of development of the Swedish election law.

INTERNATIONAL ORGANIZATIONS

107-117 701
Abstract
Ensuring universal access to medicines is an important topic of the international agenda and national healthcare police. Access to medicines is determined by systemic interaction of a number of factors, including investment policy issues, intellectual
property protection, trade processes, and implementation of state guarantees in free medical care. There are clear imbalances in the provision of adequate level of investment in medicines development, acceptable price formation and ensuring a sufficient level of intellectual property rights protection. Effective regulation of these processes requires expanding the scope of cooperation between international
organizations and strengthening the mandate of the World Health Organization to form an international agenda in access to medicines, which will take into account the interests of producers and society. The authors, based on the analysis of the specifics of the pharmaceutical industry development and the level of innovative medicines availability in various regions of the world, came to the conclusion that at the current stage, the initiatives implemented by international organizations do not have a proper balance between the interests of the society and pharmaceutical producers. The authors defined that unified standards of intellectual property rights protection can guarantee the possibility for companies to maintain a high level of funding of R&D to recover economic losses due to investments that do not lead to the creation of a market product. The authors also found that international legal documents establish general principles of regulation that determine the need to refer to the most successful practices, implemented at the national level to ensure a balanced approach to stimulate the development of innovations and expand the coverage of the population with the essential drugs.
118-127 1310
Abstract
Climate warming and development of technology of the use of natural resources and transport ways in the Arctic Ocean make this region important not only for the Arctic states, but for many others as well. Taking into account diverging interests of various countries the legal regulation of the activity in the Arctics becomes especially important. In this situation international organizations, universal in particular, can contribute significantly into the cooperation of states in the field of navigation, sound extraction of natural resources and sustainable protection of environment. Gradually new international organizations begin their activity in the Arctics, that have never before paid attention to the region, the World trade organization, for example. The basis for the activity of both international  organizations and other actors are the generally recognized norms and principles of international law.
128-135 2123
Abstract
Nowadays corruption is one of the most actual global problems. International cooperation in this sphere can increase efficiency of the struggle against corruption globally. There are many international organizations (including OECD, GRECO, World Bank, etc.), which pay sufficient attention to anti-corruption struggle. However, legal mechanisms often govern the process of anti-corruption struggle ambiguously. The article analyses functioning and cooperation of international worldwide organizations in the struggle against corruption.
The authors review the system of international anti-corruption organizations and  perspectives of modern international legal cooperation in this field. The article examines practical activity of the organizations and their current documents, initiatives and programs. Regional peculiarities of anti-corruption struggle are highlighted as well. The necessity to develop and strengthen cooperation between all states in anti-corruption struggle throughout the world is emphasized in the article. The authors conclude that the current stage of global struggle against corruption does not embrace all possible ways and in the nearest future the international community is to develop international legal anti-corruption instruments.

INTERNATIONAL ECONOMIC LAW

136-143 917
Abstract
Realities of economic cooperation demonstrate increase of the states’ need for economic
cooperation in various forms and this tendency develops internationally. The Russian Federation declares need for expansion of «network diplomacy» and participation in formation of «states’ network alliances» in the Concept of foreign policy (2016). The author dwells on the problem of efficiency of the made decisions’ implementation within various integration associations, the urgent need for use of the states’ network alliances. It is suggested to pay attention to a possibility of organizations’ merger (in which the Russian Federation participates) and creation of several forms «according to interests» in some of them, which would allow using the available potential of specialists and financial expenses of the state more effectively.

МЕЖДУНАРОДНОЕ ЭКОЛОГИЧЕСКОЕ ПРАВО

144-153 994
Abstract
This paper considers the principle of “sustainable development”, which is described in many international documents as well as in different papers by various specialists in International Environmental Law. Special attention is paid to the modern transformation of the concept of sustainable development. The author shows that there is a great difference between the original idea of the concept as stated in 1987 (in famous report “Our Common Future”) and its contemporary content, taking into account the UN and other relevant international documents. It is further noted that the concept has no universal perspective of  development in line with the original idea of 1987 but have such perspectives in regional and bi-lateral context. The possibilities of sustainable development in the Arctic as  depicted by documents of the Arctic Council are considered in the paper as well as relevant teachings of foreign specialists in International Law.

VOICES OF THE YOUNG

154-160 3358
Abstract
The article is focused on particularities of approach of the European Court of Human Rights to consideration of validity of claims for compensation of moral damage to individuals. Within the framework of this article the author also concerns approach of the European Court of Human Rights to assessment of similar claims on compensation of moral damage to legal entities. Particularly, the author conducts analysis of approach used by the European Court of Human Rights in respect of definition of ‘moral damage’, methods and criteria of assessment of scope of damage subject to compensation, as well as definition of persons entitled to compensation of moral damage in its case consideration practice.
Moreover, for the purpose of comparative analysis the author concerns in this article law enforcement problems and deficiencies existing in the domestic legal regulation of the institute of moral damage compensation to individuals and – partly – to legal entities.
161-173 1285
Abstract
The article deals with the evolution of constitutional status of Scotland in the United Kingdom of Great Britain and Northern Ireland since 1707 till nowadays. The author identifies the key elements of the discussion about the status of the region in British constitutional science. The article contains the characteristic of the main stages in the development of the status of Scotland in the process of the transformation of Great Britain from a unitary polity to a regionalized state. In the same time, the author proposes a new understanding of regionalized state as a separate form of territorial constitution which differs from unitarism or federalism. The article provides an analysis of the contemporary status of Scotland as a component part of the UK in the light of the main distinctive features of a regionalized state as a form of territorial constitution.

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