Preview

Moscow Journal of International Law

Advanced search
No 4 (2019)
View or download the full issue PDF (Russian)
https://doi.org/10.24833/0869-0049-2019-4

ISSUES OF THEORY OF INTERNATIONAL LAW

6-17 1691
Abstract

INTRODUCTION. Occasionally a book appears which has a significant impact on the scholarly community. A fine example of this is the work considered here by the Australian international lawyer, Anthea Roberts. Until very recently, comparative studies on international law were rare. However, as international law further develops and widens, so special attention will need to be paid to ensure that international law students are, to a greater extent, taught the same material and in the same way. As municipal systems of law became more mature, so doctrine and jurisprudence began to diverge. International law has now entered such a phase in its development and, in this excellent book, Dr. Roberts asks a series of very important questions: exactly what is taking place, what are the factors that are driving these processes, is such to be welcomed, is it unstoppable and where do we go from here?

MATERIALS AND METHODS. The article reflects on Anthea Roberts’ book “Is International Law International?” (Oxford, Oxford University Press, 2017). The authors of the article consider the contribution of the monograph to legal science, particularly with its interest in a revived Comparative International Law.

RESEARCH RESULTS. The view of the authors of the article is that Anthea Roberts’ book is a work of profound significance, which will, hopefully, inspire additional research in the field of Comparative International Law in years to come.

DISCUSSION AND CONCLUSIONS. Comparative International Law is a relatively neglected field in International Law. Without question, the international legal academy (from the elite law schools of the permanent members of the United Nations Security Council) emphasises different things both in its scholarly writings and pedagogy. This needs to be given greater attention, even if, at least for now, it cannot be entirely arrested; so that the much-feared fragmentation of international law into not only separate fields and standards, but also in terms of agreeing on its content and application, is minimised. 

POPULATION IN INTERNATIONAL LAW

18-30 1248
Abstract

INTRODUCTION. This article discusses that part of the classical Eurasian concept, which is devoted to ethno-national relations prevailing in Northern Eurasia, the characteristics of the factors and traditions that determined the formation of the Russian superethnos. The content of the categories “Eurasian nationalism” is revealed, which, according to the classics of the doctrine, should become the core idea of the formation of the Russian multi-national nation. Considerable attention in the article is paid to the analysis of the correlation and interconnection of the categories “people” and “nation”, the characteristics of their specific features.

MATERIALS AND METHODS. The article is based on a study of the concepts of Eurasianism presented in domestic and foreign science and the provisions of the Federal Target Program approved by the Government of the Russian Federation “Strengthening the Unity of the Russian Nation and Ethnocultural Development of the Peoples of Russia (2014 – 2020)” are considered.

RESEARCH RESULTS. In the article the thesis is substantiated that the modern theoretical substantiation of the tendency for the formation of the “Russian nation” is associated with the desire to strengthen the national substrate of Russia as a single federal state and to avoid the sad experience of the split of the USSR. The author analyzes various approaches to realizing the task of forming a multi-national nation on the basis of the Russian people and shows his own position with respect to the idea of adopting a special Law on the Russian nation.

DISCUSSION AND CONCLUSIONS. The article critically evaluates the position that rigidly links the formation of a nation with the creation of its own sovereign national state which in most cases is not applicable to multinational states. 

31-45 3809
Abstract

INTRODUCTION. The article deals with the evolution of the Palestinian citizenship and the possibility of its development under the occupation of the Palestinian territories. Citizenship is a classic institution of public law and is perceived in a similar way in various legal systems. In this case, however, there is a very special phenomenon, the content of which is due to a number of historical, political and international legal factors.

MATERIALS AND METHODS. The research is based on the analysis of Balfour Declaration 1917, UN Partition Plan for Palestine 1947, Agreement Oslo II 1995, Articles on Nationality of Natural Persons in relation to the Succession of States (ILC, 1999), Articles on Diplomatic Protection (ILC, 2006), Israeli law governing the status of Palestinians, nationality laws of the Arab states, political and regulatory acts of Palestinian institutions. The research methods include historical method, methods of formal logic, comparative method and various methods of interpretation. A significant part of the research is a comparison of positions of Israeli and Palestinian lawyers, as well as an analysis of various options for the development of the Palestinian citizenship.

RESEARCH RESULTS. Currently, the status of residents of the occupied territories is determined by the Oslo II Agreement of 1995: the administrative powers are delegated to the Palestinian Authority; Israel retains the right of control. The resident status is not equivalent to the status of a citizen and is sui generis. This status implies a number of Israel’s obligations: to end it and provide a citizenship to Palestinians; recognize its international elements; transfer more powers to Palestinian institutions. The lack of regular citizenship makes it difficult for Palestinians to enjoy diplomatic protection from Palestinian institutions.

DISCUSSION AND CONCLUSIONS. Presently, there are conditions for the establishment (declaration) of the Palestinian citizenship, which would fix a political connection sui generis, implying the rights of Palestinians to participate in administration of the occupied territories, their membership in a nation striving for self-determination, the right of Palestinian institutions to provide diplomatic and other protection, etc. This citizenship should be provided automatically, since it involves not naturalization, but consideration of existing social and vital ties of Palestinians to their people. The solution of the problem of diplomatic protection may consist in the development of customary law and the search for new tools, for example, protection on the part of international organizations. 

INTERNATIONAL CRIMINAL LAW

46-60 1937
Abstract

INTRODUCTION. The creation of the International Criminal Court in 1998 boosted significantly the interests of practitioners and researchers as regards international criminal law and procedure. It was the very first time when the permanent international court dealing with crimes of the concern of the international community was created. Twenty years being passed but the formal quantitative results of the Court coupled with disputes as regards Court’s role and status, skepticism and disappointment of his work provoked an overall critic and negligence. It was aggravated by the direct critic delivered by a few states. Some of them refused to become a party to the Rome Statute or withdrew its ratification thereof. The same was with the internal situation in the Court: reluctance about the cooperation of the forensic unities and HR-disputes.

MATERIALS AND METHODS. To prepare this paper the academic teachings of Russian and foreign specialists in international law and especially international criminal law, international and domestic legal instruments, media publications, reports and statistics of the ICC official web page were used. This study is premised on using the general methods of cognition (systemic and structural approaches, analysis and synthesis, deduction and induction) and methods of legal research (comparative, historical and formallydogmatic methods).

RESEARCH RESULTS. Exaggerated expectations, organizational shortcomings, external explicit backlash, system obstacles of the international justice, pressure of officials and overt nihilism of the academics – that is where the Court have no choice but to work. Russian skepticism coupled with political observations provoked Russia’s 2016 withdrawal of its signature from the Rome Statute.The paper deals with Russian motives and reasons of the abovementioned decision. The analysis is carried out within the general pattern of the functioning of the Courts and its drawbacks. The stance of the main stakeholders is also considered. The authors conclude that the main reason of the Court’s default is predetermined considerably by the systematic and objective factors not dependent on the Hague court. At the same time some of the problems are deemed to be typical for international justice per se.

DISCUSSION AND CONCLUSIONS. The bashing as regards the Court and its results excludes the impartiality in assessing ICC’s results and impedes the correct reasoning and offering adequate recommendations. The general negative narrative backs sufficient background for taking solely politically motivated decisions what the Russian experience proves. 

61-78 2005
Abstract

INTRODUCTION.The relevance of a research of international legal fight against terrorism does not raise doubts as terrorism reasonably belongs to the most dangerous threats to peace and safety of mankind. The solution of a modern problem of terrorism demands not only national, but also international mechanisms. According to the author, it is early to speak about successful opposition to this evil. Therefore, the research of the current state and trends of development of that part of international law that is devoted to counteraction to terrorism is extremely important.

MATERIALS AND METHODS. The versatile international legal base connected with various aspects of fight against terrorism was created for more than centenary period. Universal and regional anti-terrorist conventions, legal documents of the international organizations, decisions of the International Courts of Justice and tribunals were investigated to reveal trends of international legal fight against terrorism. The research is based on use of methods of inductive generalization, the comparative and legal analysis (mainly in its functional option) and the legalistic analysis.

RESEARCH RESULTS. The most significant trends of development of international legal fight against terrorism are shown in work. It is: coordination as opinio juris of the legal indications of terrorism, legal mechanisms of counteraction to it; the institutional development of international legal fight against terrorism expressed as formation of the definitive device and the organizational mechanism; isolation of legal instructions of basic character for international legal fight against terrorism; the growing role of the International Courts of Justice and tribunals in administration of justice against terrorism; formation two substantially various terrorist crimes: in a situation of wartime and in a "civil" situation.

DISCUSSION AND CONCLUSIONS. By results of a research the author formulates a number of the offers capable to have a positive impact on the future of international legal fight against terrorism. In particular, the author shows that in order to form an effective international legal mechanism for combating terrorism, it is required at the UN level to agree on the concept of terrorism, to form a generally acceptable list of criminal terrorist acts prohibited by international law, to systematize international legal sources related to the fight against terrorism. 

79-90 1085
Abstract

INTRODUCTION. Effective implementation of antiterrorist interstate cooperation is impossible without the creation of an appropriate legal framework. By concluding international treaties, States agree to accept obligations that define the scope of their activities in the areas of cooperation. Moreover, sometimes the necessity arises for emergency antiterrorist response which brings about the application of other than treaty mechanisms like bilateral and multilateral commitments. It seems necessary to pay attention to certain legal mechanisms provided by the UN anti-terrorist treaties, in particular, in the context of the situation in Syria, and some conceptual changes in Russian counter-terrorism legislation.

MATERIALS AND METHODS. The article uses treaties, national legislation and doctrinal research. The authors rely on various methods to reach their conclusions, among which treaty interpretation is most frequently used.

RESEARCH RESULTS. In the article the author shows different mechanisms and spheres of modern cooperation in counter-terrorism and their ineffectiveness owing to political interests of some states. Special attention is paid to legality of actions of the USA and allies in Syria and criminal liability of members of international terrorist organizations.

DISCUSSION AND CONCLUSIONS. In this article the authors draw attention to disadvantages of international legal regulation of anti-terrorist cooperation. The article concludes that refusal of compliance with international law in the sphere of counter-terrorism brings about negative consequences for maintenance of international peace and security. 

INTERNATIONAL AND NATIONAL LAW

91-103 964
Abstract

INTRODUCTION. In modern legal science the problem of the effect and implementation of international law in national legal systems is one of the most popular areas of research. This article is devoted to the consideration and critical analysis of doctrinal assessments of the application by courts of general jurisdiction of the Scandinavian countries of the international legal norms , as well as their possible approaches to resolving conflicts between the norms of international and national law.

MATERIALS AND METHODS. The method of comparative law has been used in present essay as a special logical mechanism that permits us to construct a system of rules relating to conflict of laws. Especially these rules are the tertium comparationis in a case of conflict between international and domestic law in municipal courts, as it is going through the formula of induction (analogy): if A is B, and B is C, so A is C.

RESEARCH RESULTS. Traditionally international law suggests two ways of solving the problem in a case of the conflict of laws: monistic and dualistic doctrines. But these doctrines are not realizable in a pure form because of their inner contradiction. The main cause of this contradiction is the impossi bility to join interests of the subjects of international law with each other. Taking the doctrine of Interessenjurisprudenz as a ground of our further reasoning we have found the third point, we were searching for: just – the mechanism of elaborating the special remedies by which the conflict of interpretations has to be solved. The main remedy is the overcoming (in a logical sense) the law of excluded the third in the form of analogy. So, we can formulate a construction of the rules relating to conflict of laws in international public law by the analogy with the international private law. The nature of these rules is coincided with the such norms as _esuetu iuris cive necessitates and general principles of law. Especially that permits us to avoid the conflict of interpretation of the two legal orders, that can be caused by the “double standards” and “soft power” doctrines.

DISCUSSION AND CONCLUSIONS. The above mentioned analysis permits us to formulate some general principles to established the system of rules relating to conflict of laws. The main cause of them will be following logical premise: the conflict of laws is based on the conflict of interests. That can be evidently by the interpretation rules in a conflict. Interpretation has the aim to harmonized conflicting orders on the ground of the general principles of law relating to municipal and international law. Conflict of laws can be solved through the general principles of law, especially in the case of fundamental contradiction. Conflict of laws can be formulated by the analogy. Conflict of laws can’t be interpreted in teleological way. 

INTERNATIONAL LEGAL ISSUES OF TERRITORY

104-113 1599
Abstract

INTRODUCTION. The article dwells on the issue of evolution of mechanism created to manage the Antarctic region: Antarctic Treaty Consultative Meetings (ATCM) and Committee on Environmental Protection (CEP). In the paper the main stages of the development of an ATCM as a main “political” body within the Antarctic Treaty System (ATS) are analysed.

MATERIALS AND METHODS. The article is based on the analysis of the founding documents of the mentioned bodies – Antarctic Treaty of 1959 and Madrid Protocol to it of 1991, as well as the Rules of Procedure of the said bodies. Moreover, functioning of ATCM and CEP is compared to that of the other organs of the ATS – CCAMLR and its Scientific Committee.

RESEARCH RESULTS. The author comes to a conclusion that the Consultative Parties throughout the existence of ATCM managed to effectively use the flexibility built in the Antarctic Treaty by adjusting ATCM to the particular challenges that the they were facing. The efficiency of such an approach is illustrated by the examples of the other organs of the ATS. In particular, the similarities between pairs of ATCM-CEP and CCAMLR - Scientific committee of CCAMLR are demonstrated.

DISCUSSION AND CONCLUSIONS. The analysis and classification of ATCM variations as well as of the other fora under the ATCMs has been comprehensively analysed in Russia last in 2002. With regard to this the tendency of attributing more power to CEP is highlighted. In recent time, this is done to the detriment of the ATCM functioning, when its role is sometimes diminished to only approving decisions taken by the CEP. As a conclusion the opinion is expressed that the attempts to politicise the process and manipulate the statuses of different ATS bodies is counterproductive. 

RESPONSIBILITY IN INTERNATIONAL LAW

114-132 1342
Abstract

INTRODUCTION. The article considers the concept of a succession of states with regard to the responsibility of states, which has become the subject of discussion by the UN International Law Commission and the preparation of the relevant draft articles. The author studies the methodology of considering the topic with a view to substantiating the idea of transferability of rights and obligations in the context of the responsibility of states, which is to a certain extent contradictory, due to the limited practice of states in this area. In this regard, questions are raised as to whether the new project can solve the problem of fill ing the gap between the regimes of state succession and state responsibility.

MATERIALS AND METHODS. The author made a theoretical and empirical analysis of the main sources of international law, the materials of the work of the UN International Law Commission: reports of the special reporter on the succession of states regarding state responsibility, comments and observations of states, state practice, and the practice of international courts on the subject matter. Methodological foundation of research is composed by general scientific (analysis method, synthesis method, systems approach) and private-law methods of obtaining knowledge (formal legal, comparative legal).

RESEARCH RESULTS. Based on the study, it is argued that the key ILC approach – the general rule of the lack of succession in respect of international responsibility is not absolute in nature, also contains potentially conflicting aspects. The author comes to the conclusion that the concept of transferability of rights and obligations in the context of state responsibility is to a certain extent contradictory, due to the limited practice of states in this area.

DISCUSSION AND CONCLUSIONS. This article highlights a number of problematic aspects of the draft articles provisionally adopted by the Drafting Committee of the United Nations International Law Commission, as well as the proposed new draft articles in the regulation of specific categories of succession of States in respect of the obligations arising from responsibility. The author concludes that the norms formulated under the theme should take into account the complex legal regime of state responsibility for internationally wrongful acts, which differs from other regimes of succession. 



Creative Commons License
This work is licensed under a Creative Commons Attribution 4.0 License.


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