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Moscow Journal of International Law

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No 3 (2017)
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https://doi.org/10.24833/0869-0049-2017-3

ISSUES OF THEORY OF INTERNATIONAL LAW

6-17 1512
Abstract

INTRODUCTION. The Agreement on Enhancing International Arctic Scientific Cooperation, 2017, has recently become part of the International Law applicable to the Arctic Region and the relevant legal history is considered in this paper. Special attention is paid to the scope of application of the 2017 Agreement and the interpretation of provisions which provide new rights and obligations of its Parties in the context of an extensive international legal framework which already applies to the Arctic Ocean.

Materials and Methods. The materials for research include first and foremost the text of the 2017 Arctic Agreement, in the context of other rules of International Law, both treaty and customary, which are applicable to the Arctic Ocean. General and special scientific methods of contemporary cognition composed the relevant methodological basis for the research.

RESEARCH RESULTS. The 2017 Arctic Agreement has become an important element of the extensive international legal framework which applies to the Arctic Ocean. This broad international legal framework is contained in a system of International Law instruments regulating relations between subjects of International Law: first of all, between Arctic States, and then between them and non-Arctic States; especially in such branches of States’ activity as the protection of the marine environment, including ice-covered areas, freedom of navigation, marine scientific research, and other uses of the sea. Within this extensive legal framework the 2017 Agreement has a special position as lex posterior. This is important in the context of the scope of the Agreement (the designated territories of the Parties) and also taking into account the complexity of its correct interpretation.

DISCUSSION AND CONCLUSION. Science cooperation according to the 2017 Arctic Agreement may contribute to improving regulatory measures in a number of vital areas: to promote best available technologies in the Arctic region; to make more safe navigation in the Arctic waters (while they are becoming free from ice during most of the year); to assist in formulating modern maps for Arctic navigation; to advance plans for creating modern port infrastructure in the North ; science cooperation might give impetus to designating new sea lanes and traffic separation schemes (in the Barents Sea and in the Bering Strait, for example) and to promote additional legal measures to protect and preserve the marine environment in the Arctic.

LAW AND POLITICS

18-30 1307
Abstract

INTRODUCTION. The article contains analysis of the main international legal documents on which the Arctic policy of the People’s Republic of China is based. Particular attention is paid to the international legal cooperation between China and the Arctic States, which is focused on protecting the environment, scientific research and navigation in the Arctic Ocean. The first results of the PRC’s activity in the Arctic Council as a permanent observer are also considered.

MATERIALS AND METHODS. Study materials include international bilateral and multilateral agreements concluded between the People’s Republic of China and the Arctic States, as well as legal documents of the Arctic Council and researches of foreign scientists, including scientists from the People’s Republic of China, concerning the legal regime of the Arctic, legal basis for the interstate cooperation on protection of the marine environment, economic and scientific issues. General scientific and private scientific methods of cognition composed methodological basis for the study.

RESEARCH RESULTS. In the course of the study, the author reveals the concepts developed by the Government of the People’s Republic of China and set out in the new initiative project “One belt – one road”, in which the Arctic plays a major role. The author analyzes international bilateral agreements between the People’s Republic of China and the Arctic States, aimed at strengthening of intergovernmental ties and developing of interstate cooperation in the field of environmental protection, navigation and scientific research in the Arctic. Furthermore, the author relates the results of the activities of the People’s Republic of China as a permanent observer in the Arctic Council. The author emphasizes that the People’s Republic of China does not pursue an aggressive Arctic policy, does not violate customary or conventional rules of International Law.

DISCUSSION AND CONCLUSION. In this article, the author draws attention to the peculiarities of the formation of the Arctic component in the Chinese policy, based on international bilateral and multilateral agreements. It is brought out that China has its specifics in terms of the legal framework of the Arctic policy. The Arctic policy of the People’s Republic of China is aimed at expansion of its national interest in the Arctic. Therefore, China has developed new legal term – “near Arctic State” and issued Guidebooks for Chinese Shipping in the Northern Sea Route and in the North-West passage.

ТЕРРИТОРИЯ В МЕЖДУНАРОДНОМ ПРАВЕ

31-39 3099
Abstract

INTRODUCTION. This paper considers the general principles of international law and focusing specifically on the principle of uti possidetis. The author argues that uti possidetis originating from Roman jus civile was transformed into a principle of interstate relations dealing with a transformation of former administrative borders into international boundaries of the newly independent states in Latin America in XX century. The principle’s further effective application in Africa and Asia contributed into uti possidetis’ formation as the principle of international law.

MATERIALS AND METHODS. The materials for the article were the works of leading Russian and foreign researchers in the field of international law dedicated to general principles of international law and international customary law. The author referred to historical, comparative and theoretical methods in his analysis.

RESEARCH RESULTS. It is argued that uti possidetis as the principle of international law has a primary concern with the state or territorial sovereignty. The paper analyses uti possidetis’ evolution from the regional principle into the general principle of international law. It also deals with the review of cases considered by the International Court of Justice and other international ad hoc tribunals as well as specialised authoritative opinions of specialised
international commissions that played a vital role in affirming uti possidetis as one of the general principles of international law.

DISCUSSION AND CONCLUSIONS. The author argues that uti possidetis is not similar to the principle of territorial integrity, and in contrast the former serves as auxiliary support to the latter one. The analysis refers to the most recent precedents with dissolution of the former communist federations that simply reconfirmed the importance of uti possidetis as the general principle of international law. It is concluded that the evolution of uti possidetis as the general principle of international law took place under influence of the state practice and application by international judicial bodies.

INTERNATIONAL ECONOMIC LAW

40-51 1652
Abstract

INTRODUCTION. This article is aimed at reducing the gap between Russian and Western schools of international investment law, and offers an opportunity to gain adequate understanding of the proper place of international investment law within the system of international law. So far there has been no recognised attempt to complete a research which would analyse both approaches in order to make a comparison between conceptual discrepancies of the two doctrines first-hand based on an analytical product.

MATERIALS AND METHODS. The authors undertake to research and analyse the most recent academic literature. As a result, this article includes references to both Russian and Western works in the field of international investment law published over the past ten years. However, there are occasional references to the classic academic contributions which have certainly proven their lifetime doctrinal value. As for the methodology, the authors opt to employ popular scientific research methods (including dialectics, analysis and synthesis, deduction and induction, comparative legal and historical analysis).

RESEARCH RESULTS. As a result of the conducted research the authors offer a comprehensive overview of the doctrinal positions of Russian and Westerns academics which can be found in Russian and Western academic law literature. The authors summarise approaches and make conclusions about similarities and discrepancies between Russian and Western doctrines of international investment law.

Discussion and conclusions. In this article the authors underscore a critical distinction in the interpretation of international investment law as a field of private international law (advocated by Russian doctrine) and as a field of international law (supported by Western doctrine). The article reveals the challenge in finding a proper definition for international investment law as a standalone law concept. Based on the findings the authors make an attempt to put forward a compromising approach to the place of international investment law within international law.

52-60 1281
Abstract

INTRODUCTION. One of the main priorities of international cooperation regarding cultural property is providing access to such cultural objects both for the citizens of the state where the objects are normally located and for the whole international community. This aim may be achieved by active international loans, which often presume temporary export of cultural property to the territory of a foreign state. The lack of legal guarantees regarding its timely and
safe return to the state of origin creates anxiety and unwillingness of states to send away their cultural heritage and thus hampers international cultural exchange. Closely related to this matter is the question of international legal regulation of the immunity of such cultural property, temporary present on the territory of another state, from suit and seizure.

MATERIALS AND METHODS. The material for the study was the applicable provisions of international treaties, in particular the 2004 UN Convention on Jurisdictional Immunities of States and Their Property, 2004, the practice of international judicial bodies, as well as the works of Russian and foreign researchers in the field of international legal bases for the protection and circulation of cultural property. The methodological basis of the research consists of general theoretical methods (dialectical method, comparative method, analysis and synthesis, induction and deduction) as well as special legal methods (historical-legal, formal-legal, comparative-legal and other methods).

RESEARCH RESULTS. At the moment, the international legal regulation of the matter seems insufficient: the 2004 UN Convention on Jurisdictional Immunities of States and Their Property, containing potentially applicable provisions, has not yet entered into force, and there is no perspective of any satisfactory regulation in the form of a treaty in the nearest future. However, the author states the formation of a relatively young rule of customary international law on the immunity of cultural property, which is, however, strictly limited by various conditions. This immunity does not extend, for example, to stolen or illegally exported objects for which there are obligations of states for their restitution (return) in accordance with existing international treaties. In addition, the immunity from coercive measures does not exempt from jurisdiction, and the temporary presence of cultural values of one state in the territory of another one may serve as the basis for the notification of a claim against the first country by the courts of the second one.

DISCUSSION AND CONCLUSION. In this article the attention is focused on the fact that the immunity of cultural values is a condition for an active international exchange of them, and, consequently, is a pledge for the further development of international cultural cooperation and scientific research. Uncertainty in this matter is a source of numerous doctrinal disputes and practical problems. According to the results of the research, the author makes a conclusion, that the situation calls for further progressive development and codification of international law in this area, including the creation of detailed and specific norms regarding the immunity of cultural property temporary on loan for cultural, scientific and educational purposes, which will encourage international loans of cultural objects and promotion of intercultural cooperation.

HUMAN RIGHTS

61-68 1309
Abstract

INTRODUCTION. Annual number of disputes involving foreign workers is constantly increasing in Russian courts. The analysis of certain judicial decisions made following the consideration of such disputes allows us to conclude that this trend stems not only from the strengthening of interstate cooperation between Russia and foreign partners, but also from a number of law enforcement problems. First of all, it is necessary to point out the imperfection of the legal framework regulating the employer’s responsibility for violating the rules of hiring and employment of foreign citizens, as evidenced by our
study.

MATERIALS AND METHODS. The methodological basis of the research consists of general scientific and special methods: the method of systemic structural analysis; method of synthesis of the socio-legal phenomena; the comparative legal method, formal logical method; statistical method.

RESEARCH RESULTS. The analysis revealed that the reasons for law enforcement problems lie in the insufficiently developed mechanism for protection of rights of foreign workers. In the practice of considering such disputes there are cases of restricting the rights of foreigners in the sphere of labour that are not related to protection of constitutional order, morality, health, rights and legitimate interests of others, or state defense and security. Cases of incorrect application of the norms of material, procedural and administrative legislation have also been revealed, which confirms the improper maintenance of the balance of the basic rights of foreign workers and the general interest consisting in protection of the individual, society and the state.

DISCUSSION AND CONCLUSIONS. The analysis made it possible to point out the weaknesses of current legal regulation of legal relations with foreign workers; the proposals on changing the current legislation, aimed at improving the level of protec tion of the rights of foreign workers, have been given a reasonable foundation.

INTERNATIONAL PRIVATE LAW

69-81 1055
Abstract

INTRODUCTION. The article deals with the development of modern legislation on international commercial arbitration in Latin America. The role of OAS 1975 Panama convention as the starting point of development of the modern international commercial arbitration in the region has been exposed. Relationships between the Convention and the UN 1958 New York convention have been outlined. The latest changes in the Latin-American legislator’s approach to international commercial arbitration, constitutional aspect included, have been briefly summarized based upon current legislations of 11 countries of the region.

MATERIALS AND METHODS. The materials for the article were the works of Latin American, European, American and Russian researchers in the field of international commercial arbitration, as well as the existing arbitration laws of Argentina, Bolivia, Brazil, Chile, Colombia, Ecuador, Paraguay, Peru, Mexico and Uruguay. The methodological basis of the research consists of general scientific and special methods: dialectical method, methods of analysis and synthesis, deduction and induction, comparative legal and historical legal methods.

RESEARCH RESULTS. In the article the author shows the existence of two legislative approaches to the legal regulation of the ICA in Latin America. The first “traditional” approach is focused on the development, first of all, of domestic, national arbitration. It is followed by the legislator of the Argentina, Brazil and Uruguay. The second approach is “modern”. It is based on the principles of the UNCITRAL Model Law and provides for the equal application of the general international principles formulated in the Model Law to both national and international arbitration. It is followed by the legislator of Bolivia, Venezuela, Colombia, Mexico, Paraguay, Peru, Chile and Ecuador.

DISCUSSION AND CONCLUSIONS. In this article the author draws attention to the overcoming by the countries of the region of the negative consequences of the Calvo doctrine in the field of international commercial arbitration through constitutional reform (Argentina, Bolivia, Chile, Ecuador, Paraguay, Peru, Chile and Venezuela) or the practice of the highest judicial authorities (Brazil, Mexico and Uruguay). In addition, the author considers the new laws on arbitration that have been adopted in these countries (other than Argentina and Uruguay), more or less based on the text of the UNCITRAL Model Law. The author concludes that despite the impressive efforts both at the constitutional and legislative levels the process of creating a favorable legal environment for international commercial arbitration of a modern type in these countries in particular and in Latin America in general has not yet been completed.

LAW OF THE EUROPEAN UNION

82-91 947
Abstract

INTRODUCTION. The article presents peculiarities of exchange of tax information in the European Union. The author analyses provisions of European Union instruments related to exchange of tax information performed on request, spontaneously or automatically. Special attention is paid to the analysis of legal developments of the Council Directive № 2011/16/EU of 15 February 2011 "On administrative cooperation in the field of taxation and repealing Directive 77/799/EEC”.

MATERIALS AND METHODS. Materials used for the analysis include legal writings of Russian and foreign researchers in the field of European tax law as well as current regional European Union instruments and multinational acts devoted to the legal regulation of exchange of tax information. Methodological procedures of the research include general and specific scientific methods of enquiry (dialectical method, methods of analysis and synthesis, deduction, induction, comparative-legal and historicallegal methods).

RESEARCH RESULTS. While analyzing, the author evaluates the significance of each form of exchange of tax information for combating tax crimes such as tax fraud, tax avoidance and aggressive tax planning. The author examines the regional European Union instruments devoted to the legal regulation of exchange of tax information in comparison with the multinational acts and global trends dedicated to the same issue.

DISCUSSION AND CONCLUSIONS. In this article the author draws attention to the peculiarities of exchange of tax information in the European Union. The article deals with the provisions of regional European Union instruments related to exchange of tax information performed in all three forms. Relying on the doctrine and international documents, the author characterizes rules of exchange of tax information in the European Union, especially in terms of their legal developments, and estimates the readiness of the European Union member states to implement the above-mentioned legal norms.

REVIEW OF JUDICIAL PRACTICE

92-129 820
Abstract

ABSTRACT. In the article they reveal the current practice of the courts of the Russian Federation, concerning the implementation of international treaty bodes legal positions in the way of interpretation of the legislation of the Russian Federation, generally recognized principles and rules of international law and international treaties of the Russian Federation. Particularly it says about the practice of the European Court on human rights, Human Rights Committee and Committee against Torturer. They also focus on the necessity to take into account the positions formulated in the framework of international nontreaty bodies especially by the special procedures of the Human Rights Council. The article contains the possible basis for the classification of international treaties bodes legal positions. 

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