ISSUES OF THEORY OF INTERNATIONAL LAW
Introduction. In international law the research of the notions “general principles of law”, “basic principles of international law”, “generally recognized (generally binding) principles of international law”, “sectoral principles of international law”, etc., seems to be relevant, due to their fundamental significance. Their content is the subject of many scientific discussions in foreign, as well as in the domestic science.
Materials and methods. The research was conducted based on the analysis of the Statute of the International Court of Justice, the Statute of the Permanent Court of International Justice, the Vienna Convention on the Law of Treaties 1969, the Declaration on Principles of International Law, which concern friendly relations and cooperation between states in conformity with the UN Charter 1970, materials of the International Law Commission, the Digest of Justinian and the interpretation of these documents in the doctrine. The research is based on methods such as historical research, formal logic, including analysis, synthesis, and modeling, as well as systematic, comparative and interpretation.
Research results. Based on the results of the analysis, the author notes that due to the absence in international law of an official interpretation of the mentioned principles they are not infrequently perceived in the doctrine as synonyms. In particular, “general principles of law, recognized by the civilized nations”, due to the fact that they are noted as sources of international law in Article 38 of the Statute of the International Court of Justice, are often perceived as fundamental principles of international law.
Discussion and conclusions. The article substantiates the conclusion that the notions “general principles of law”, “basic principles of international law”, “generally recognized (generally binding) principles of international law”, “sectoral principles of international law” have actually different content, despite the fact that they are perceived (by ear) as notions that are very close to each other in meaning or even identical by definition. At the same time, in particular, “general principles of law” constitute not fundamental principles of international law, but the rules of juridical logic and juridical technique that are used in international law in defining and using legal norms, as well as in national legal systems.
INTERNATIONAL ECONOMIC LAW
Introduction. This article provides an overview regarding privacy and data protection laws and principles around the world. It is based on lectures by the author on May 17, 2018 at Moscow State Institute of International Relations (MGIMO) and Lomonosov Moscow State University (MSU) on the occasion of the publication of a Russian version of the 3 rd edition of Determann's Field Guide to Data Privacy Law.
Materials and methods. Materials include national and international laws and scholarly articles and books relating to privacy and data protection. Methods follow general principles of German and United States legal commentary.
Research results. People, societies and governments value and protect privacy quite differently around the world. Consequently, data privacy, data security and data protection laws and policies vary significantly. Particularly pronounced are differences in the approach to the protection of privacy and information freedom and data processing regulation in the United States and the European Union.
Discussion and conclusions. Law and policy makers around the world must analyze and balance their people's specific needs for privacy, security, freedom of information, technical progress, economic development and other values and objectives as they decide whether to adopt European Unionstyle data processing regulation, enact specific individual privacy laws as the United States, or pursue alternative approaches. They need to consider the different meanings of individual privacy, data security, information self-determination and data protection, as well as the different functions of data privacy laws, data processing regulation, record retention statutes and data residency requirements.
Introduction. In light of the ongoing UN discussions over the investor-state dispute settlement reform, this article offers readers an opportunity to develop an understanding of not only the current reform process, but also of the directions of reforms and the key positions advanced by various dogmatic camps. The author reviews and analyses the most relevant quotes from the first two meetings of the UNCITRAL Working Group sessions on states’ concerns as presented by four delegations from Russia, the USA, Canada, and the European Union.
Materials and methods. Сonsistent with the mandate’s call for the process to be fully transparent, the recordings of the sessions are made available online. The quotes from the first two meetings (34 th and 35 th ) of the UNCITRAL Working Group sessions, therefore, constitute the main resources for this article. There are occasional references to the comments made by international lawyers who received an Observer Delegate status in the Working Group III discussions. As for the methodology, the author opt to employ popular scientific research methods.
Research results. As a result of the conducted research the author offers a comprehensive overview of the delegates' positions with respect to the reform as advanced by Russian and foreign delegates, and brings forward an argument about a direct line between those positions and a prevailing doctrine on the place of international investment law within international law.
Discussion and conclusions. In this article the author underscores a critical distinction in the positions towards the public features of dispute settlement such as multilateralism and transparency. The article reveals the challenge in finding a proper definition for concrete steps of a reform (or reforms), and a framework for working process. Based on the available official positions of the states, and the UNCITRAL documents, the author reaches a conclusion about a long and controversial reform process. Yet the directions of reforms are becoming increasingly clear.
МЕЖДУНАРОДНОЕ И НАЦИОНАЛЬНОЕ ПРАВО
Introduction. The article is devoted the constitutional foundations of the legal status of the individual in the Federal Republic of Germany, some fundamental rights, their content and protection. Particular attention is paid to the institute of restrictions of fundamental rights and freedoms in Germany. Fundamental rights are considered in the interpretation of the Federal Constitutional Court of Germany, the legal doctrine that describes fundamental rights and freedoms. The works of the leading German constitutionalists, as well as the works of domestic researchers are used. The author emphasizes the importance of fundamental rights in the formation and evolution of the democratic constitutional order in Germany. The modern tendencies of development of the institution of rights and freedoms in Germany are analyzed.
Materials and methods. The material sources of the study were the provisions of the Basic Law of the Federal Republic of Germany of 1949, the current German legislation, the decisions of the Federal Constitutional Court (Bundesverfassungsgericht) of Germany, international human rights documents ratified by Germany. The works of German and Russian constitutionalists were also used during the research. The methodological basis of the article consists of general and special methods of legal research.
Research results. The article analyzes in a detailed form the specifics of the constitutional regulation of fundamental human and civil rights and freedoms in Germany, their current state and prospects for further evolution. Problems related to the protection of rights and freedoms and mechanisms of their guarantees are thoroughly considered. Special attention is paid to the analysis of the resonant decisions of the supreme judicial body of the constitutional control of Germany on the legal status of the individuals in this country.
Discussion and conclusions. The author comes to the conclusion that the Basic Law of the Federal Republic of Germany contains a fairly complete catalog of fundamental rights and freedoms, which are an integral part of the democratic constitutional order of Germany. The constitutional legislator provides for the possibility of restricting fundamental rights and freedoms only by law and on the basis of the law. The practice of the Federal Constitutional Court plays a special role in the interpretation of these restrictions. The protection of rights and freedoms is considered by the German constitutional legislator as the most important task of all constitutional bodies of the country. The country’s extensive system of guarantees of fundamental rights makes them very effective and efficient instruments.
LAW OF THE EUROPEAN UNION
Introduction. Personality of the EU as well as of the any international organization is based on the provisions of its founding treaties. Wide range of internal powers transferred by Member States to the EU predefined its activities in the international plane including signing of international agreements and membership in international organizations. Legal infrastructure of such membership is the result of peculiarities of the EU as the union of the states, powers of the EU institutions, and phenomenon of the simultaneous membership in the IOs of the EU and Member States, as well as of legal specificity of certain IO. All these matters have become a subject of the research.
Materials and methods. Author researched case law of the Court of Justice of the European Union including last jurisprudence as well as international agreements and works of the Russian and foreign scholars. The methodological basis of the research contains general scientific and special methods.
Research results. EU competence has been largely interpreted by the CJEU which has established a concept of parallel powers. This concept was based on the doctrine of implied powers. It means that execution of the internal powers in certain sphere assumes the external powers including signing of international agreements and IO membership in the same sphere. Lisbon Treaty absorbed provisions of the CJEU case-law relating to EU external competence, and the last Court’s jurisprudence reflects the further development of the implied powers doctrine.
Discussion and conclusions. EU institutions, first of all the CJEU and the Commission, tend to consolidate the international voice of the Member States, to limit the external capacity of the Member States, and this activity results in so called ‘‘europesation’’ of the international legal order. When the evident legal base for transfer of Member State external powers to the EU institutions is lacking, the CJEU utilizes the principle of sincere cooperation stipulated in Art. 4 of the TEU. The CJEU jealously safeguards it monopoly in the EU legal order and does not permit (save to the certain exceptions) to conclude international agreements which provide for jurisdiction of other tribunals. Basing on the EU constitutional order and its autonomy rhetoric the CJEU established a general principle that all the relations between the EU Member States should stand exclusively on the EU Law.
HUMAN RIGHTS
Introduction. The study of the institution of subjective rights of children in the system of modern international law is relevant, especially in the context of modern international relations. At the same time, the substantiation of the need to respect the subjective rights of children is of particular importance in the conditions of the modern world order.
Materials and methods. This article is based on a significant amount of materials, including international legal acts, acts of recommendatory nature, Russian national legislation, as well as modern doctrinal research by Russian and foreign scientists. In the process of work, primarily general scientific research methods were used: the dialectical method, the deductive method. In addition, the system analysis method was used. The system approach in this study is complemented by a functional approach. In the process of research, a comparative method is applied. Of particular importance belongs to the method of legal analysis, which allows to identify patterns and trends in the development of the international legal status of children.
Research results. According to the results of the analysis, the author notes that the progressive development of the modern world order based on the rule of law puts in order of necessity the need to comply with the entire corpus of prescriptions of proper behavior of states in the area of children’s subjective rights as recognized by modern international law. The article formulates the definitions of such concepts as “objective rights of children”, “subjective rights of children”, “legal capacity of children”. The question of the differences in the international legal status of children from the general status of the individual was considered. A systematization of the subjective rights of children is proposed.
Discussion and conclusions. Based on the study, the author concludes that the subjective rights of children in international law represent legally secured opportunities to meet their interests. At the same time, the subjective rights of children in international law consist of the ability to perform their own actions and the ability to require other participants in international relations to perform actions prescribed by law or refrain from committing strictly defined actions.
INTERNATIONAL FIGHT AGAINST CRIME
Introduction. There is no doubt that nowadays the problems of countering terrorism activity are the matters of topical interest. The financing terrorism is focusing on the creation of a climate of fear and social tension in the world. So, it creates a threat to every country and individuals. The problems of financing terrorism directly or indirectly affect all countries. It is important to cooperate all forces and find more effective mechanisms to solute this problem. The international cooperation is an essential element of anti-terrorism activities.
Materials and methods. The aim of the article is to explore the characteristics of this crime through the lens of the analysis of international criminal law in the field of countering the financing of terrorism. The regulatory framework of different states in the area of terrorist financing was analyzed. The described situations and problems showed the real difficulties in combating the financing of terrorism.
Research results. The article includes the analysis of criminal legislation on countering the promotion of terrorist activities in the form of terrorist financing in different countries, which allows to draw certain conclusions about the essential characteristics of this crime.
Discussion and conclusions. The article concludes that it is possible to exchange the experience between different countries in order to achieve the effective counter international terrorism. After highlighting the most significant problems arising in assessing the financing of terrorism, it is also possible to find out a new direction in improving the quality of counteraction to this phenomenon in general.
ISSN 2619-0893 (Online)