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Moscow Journal of International Law

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No 1 (2020)
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https://doi.org/10.24833/0869-0049-2020-1

ISSUES OF THEORY OF INTERNATIONAL LAW

6-25 2182
Abstract

INTRODUCTION. This year is the 75-th anniversary of the Great Victory of the Allies – Britain, the Soviet Union and the USA – over Nazi Germany. The most important legal result of this victory has become the Charter of the United Nations – the universal treaty initiated by Great Britain, the Soviet Union and the USA (and later – by China and France) aiming to save succeeding generations from the new world war by establishing United Nations mechanisms to maintain international peace and global security. The UN Charter has since become the foundation of modern international law, respected by States across continents and generations. That seems, however, to begin changing after the collapse of the Warsaw Pact, when its former-members «socialist» European countries (including Bulgaria and Poland) became a part of the Western military bloc – North Atlantic Treaty Organization (NATO). NATO seems to demonstrate now a new attitude to fundamental principles of the UN Charter, first of all, to the principle relating to the use of armed force only according to the UN Charter. NATO States-members launched in 1999 an air campaign against Serbia without authorization by the Security Council; then an ad hoc western coalition, led by the United States, resorted to armed force in 2003 against Iraq and organized in the occupied territory of Iraq the death penalty of the President Saddam Hussein. Even some western European States, France and Germany, first of all opposed such military action of the USA for ignoring the UN Charter. The apparent involvement of the USA in the unconstitutional removal of the Ukrainian President Yanukovich from power in Kiev in 2014 and the subsequent local war between those who recognize such a discharge as legitimate and those who do not (both referring to the right of self-defense) – these facts make the problem of international peace especially urgent. In this political environment, the risks of World War III seem to be increasing. This paper addresses such challenges to modern international law.

MATERIALS AND METHODS. Th background of this research is represented by the teachings of distinguished scholars and other specialists in international law, as well as international materials including documents of the international conferences relevant to the topic. Some of such materials are alarming, noting that the international legal system is in danger of collapse and it is doubtful whether an international legal order will be possible in the coming decades at all. Others are not so pessimistic. The analytical framework includes also suggested interpretations of the UN Charter and other international treaties regulating interstate relations in the area of global security. The research is based on a number of methods such as comparative law and history of international law, formal logic, including synthesis of relevant facts and analogy.

RESEARCH RESULTS. It is acknowledged that there is a need for a more coherent international legal order, with the system of international law being at its heart. Within the context of applicable principles and norms of international law, this article specifically provides the results of analysis of the following issues:

1) centrifugal interpretations of international law as they are reflected in its sources; 2) the need for increasing the role of the UN Charter in the global international legal framework; 3) modern values of the UN Charter as an anti-confusion instrument; 4) the contemporary meaning of the Principles embedded in the UN Charter; 5) comparison of the main principles of international law and general principles of law; 6) jus cogens and the UN Charter.

DISCUSSION AND CONCLUSIONS. After discussing the issues noted above, this paper concludes that it is in the interest of the community of states as a whole to clarify the normative structure and hierarchy of modern international law. Greater discipline will need to be demonstrated in the use and classification of principles of international law and general principles of law in the meaning of Article 38 of the ICJ Statute. The content of jus cogens norms most probably will be gradually identified, after diffi lt discussions across the international community, both at interstate level and among academics. At the heart of such discussions may be the conclusion suggested in this paper on the peremptoriness of the principles of the United Nations Charter – Articles 1 and 2. Such an approach will further promote international law at the advanced quality of regulation of international relations and, for the good of all mankind, assist in the establishment of an international environment much more dependent on the rule of law.

26-43 2389
Abstract

INTRODUCTION. The issue of implementation of international legal norms is extensive and multifaceted, and most importantly, it is always relevant. Despite the long-term development of questions of the operation of international law in national legal systems, the issue remains in the focus of researchers. Russian scholarship is quite rich in research of this area, and the practice of Russian courts is also rich in examples of the use and application of international law. Their presentation at the international level can significantly enrich the basis for analytical comparisons with the practice of other countries and further developments in this area. Nevertheless, the research of Russian authors is not well represented in the international legal discourse: the appearance of works by our compatriots in foreign editions is not so frequent. That is why monographic research papers by Russian authors published in major foreign publishing houses is of great interest to both Russian and foreign readers. At the same time, such publications implicitly set a high bar for expectations from their content.

MATERIALS AND METHODS. The article presents a critical understanding of the monograph of Professor S. Marochkin, published in 2019 by one of the world's oldest publishers Brill-Nijhoff (Leiden, the Netherlands) – "the Operation of international law in the Russian legal system. Changing approach". The article highlights key elements of the study. Special attention is paid to the reflections and conclusions of the author of the monograph on the theory of international law. The analysis of the research is based on general and private scientific methods.

RESEARCH RESULTS. Th reviewed monograph presents to our attention a wide range of Soviet and Russian general theoretical, discipline-specific and international legal doctrines. The work covers a significant period of theoretical, normative, institutional and practical development of the issue of implementation of international legal norms – more than three decades. This corresponds to the goal set out in the study – to show a changing approach to the issue in scholarship, judicial practice, and rule-making. The monograph consistently exposes the author's idea about the essence of national implementation of the principles and norms of international law, domestic legal and institutional mechanisms for such implementation, assessment and generalization of the practice of Russian courts related to the appeal to international law and the application of international legal norms. At the same time the monograph begs some questions: 1) on the author's understanding of the content of the concerned concepts in the theory of international law; 2) on the methods of law-formation in the national and international legal system; 3) on the constituent elements of the international legal system; 4) on the meaning and nature of self-executing international legal norms; 5) on the problem of international legal personality; 6) on the author's view of the state of modern legal scholarship in Russia.

DISCUSSION AND CONCLUSIONS. Russian scholarship, as well as practice in the law-making, law-application and law-enforcement have gone a long way in mastering and ensuring the constitutional provision on the principles and norms of international law and international treaties of the Russian Federation as an integral part of the national legal system. The reviewed book emphasizes the importance of theoretical justification and competent application of theoretical theses on the place and role of norms and sources of international law within national jurisdiction, on the correlation of the legal force of international and domestic norms. Indeed, both legal scholars and public institutions that directly address questions about the operation of international legal norms need to have a complete understanding about the functioning of the regulatory and institutional mechanism for implementation of international legal obligations in the domestic sphere. In this light, it is reasonable to attach particular importance to the role of the judiciary branch in appealing to and applying international law. The research paper consistently demonstrates changes in the practice and approaches to the perception of international law over time with ups and downs in the estimation of its significance and role in the country's legal order. Although the study claims to offer an exhaustive fundamental analysis of all the problems raised, the author still makes some theoretical mistakes that complicate the correct understanding of his analytical work. Thereby the author challenges himself to continue the research of the issue in order to untangle some knots of doctrinal contradictions.

INTERNATIONAL SECURITY LAW

44-53 6943
Abstract

INTRODUCTION. In the modern world, the number of crimes committed in cyberspace has significantly increased. New types of malware used to achieve illegal goals appear regularly. According to experts, the material damage to the global economy from crimes committed with the help of information and communication technologies amounts to trillions of US dollars. Such a scale requires effective means of legal regulation of relations in cyberspace. Cybersecurity is considered one of the most relevant topics of current international law, which is extremely important for ensuring the national security of states. Information and communication technologies can be used to negatively affect economic, social, cultural and political relations, to damage the economic, military, and defense potential of the state and society. In this regard, the international community is deeply interested in developing a multilateral legal framework for cooperation in the field of cybersecurity. However, a unified approach to solving this problem in the international arena has not yet been developed. Legal regulation of cyberspace is very complex due to the virtual interface characteristics of this area.

MATERIALS AND METHODS. The material for the study is the works of Russian and foreign researchers in the field of international law, international legal

acts adopted in the framework of the UN and the European Union, draft UN conventions, national regulatory legal acts of the Russian Federation, the People’s Republic of China and other states as well as judicial practice of international courts. Th research methodology is based on general and specific scientific methods of cognition (the dialectical method, methods of analysis and synthesis, deduction and induction, comparative legal and historical legal methods).

RESEARCH RESULTS. The analysis showed that despite the applicability of the principles and rules of current international law to the information sphere, the universalization of the international legal regulation of cyberspace is required, taking into account its characteristics and in order to effectively combat the use of information and communication technologies for illegal purposes. The efforts of states to develop special rules of conduct in cyberspace are currently concentrated on a narrow sphere of issues related to human rights, data privacy, etc. Not all states are interested in creating a modern and effective mechanism for cooperation in cyberspace. Many states are openly opposing the development of new international legal instruments. For this reason, the Russian initiative to adopt the UN Convention on Cooperation in Combating Information Crimes has not been support-ed. This fact has entailed the absence of a full-fledged universal international legal framework for cooperation in the field of cyberspace.

DISCUSSION AND CONCLUSIONS. Based on the analysis of doctrine and practice, the authors conclude that there is a need to create a universal international legal framework for cooperation in the fi ld of cyberspace. In modern international law, cybersecurity is one of the most pressing problems directly related to state security. The difference in the approaches of states to the problem of ensuring cybersecurity at the present stage entails the absence of an effective multilateral legal framework for cooperation in this area.

HUMAN RIGHTS

54-65 2041
Abstract

INTRODUCTION. This study analyzes available remedies for victims who have suffered harm from business activity of transnational corporations. The goal of this study is to evaluate the effectiveness of available remedies for the protection human rights of individuals from adverse impacts of the business activity of TNCs. To achieve the goal, it is necessary to fulfill the following tasks: to consider the obligations of TNCs in modern international law, the role of states in the protecting human rights against the business activities of TNCs, examine the content of the right to an effective remedy, and characterize the existing remedies for the individuals.

MATERIALS AND METHODS. During the research the latest theoretical studies of leading Western scholars was analyzed, as well as the regulatory documents, recommendations and reports of the human rights treaty bodies, international human rights treaties and extensive court practice of the ECHR. For this study formal logical, general scientifi , comparative legal and private scientific methods has been applied. 

RESEARCH RESULTS. In recent years, the importance of soft law in the field of international business and human rights has been increasingly strengthened. The UN Guiding principles on Business and Human Rights have become the basis for a draft legally binding instrument to regulate, in international human rights law, the activities of transnational corporations. It should be noted that the latest innovations in the draft related to the introduction of environmental rehabilitation as one of the mandatory forms of redress. Indeed, when considering mass violations of human rights by transnational corporations, we oft n encounter with serious damage to the environment, as a result of which environmental rights are violated. Increasing cases of such violations have led to the need to improve international and domestic remedies.

DISCUSSION AND CONCLUSIONS. The study concluded that a remedy would be effective if it would be affordable, acceptable, adequate and timely. An effective remedy against the activities of TNCs should provide an adequate compensation or the leveling of the damage caused and bring TNCs to account for human rights violations in order to ensure such compensation. In turn, access to remedies consists of two interrelated elements: the existence of a grievance mechanism that provides a redress for business-related damage and the availability to the mechanism by aff cted persons. Access to remedies should be provided without discrimination on any of the prohibited grounds and should take into account the situation of vulnerable groups. The approach to the calculation of compensation or the choice of remedy should be individualized, taking into account the social and legal status of the victim.

INTERNATIONAL ECONOMIC LAW

66-78 2146
Abstract

INTRODUCTION. Since there are many threats in the modern world, states consider the essence of security in its various manifestations. A rather extensive understanding of security should be noted, as this concept applies to multiple directions of our life. So-called SPS measures are one of the vectors aimed at ensuring safety (protection) of human life and health. The scientific literature covers rather extensively SPS measures, taken by states, which include mandatory sanitary, veterinary and quarantine phytosanitary requirements and procedures. The novelty of the study is that SPS measures will be analyzed in terms of their use as hidden barriers to international trade, as well as how often they are used when a particular sanitary or phytosanitary measure imposed by a state or maintained in force by a member of an international organization restrains or can potentially restrain export of its goods.

MATERIALS AND METHODS. In international trade certain issues of the contemplated problem are regulated by Article XX of GATT, as well as by the Special Agreement on the Application of Sanitary and Phytosanitary Measures (SPS Agreement). Security measures reflected in the Article XXI of GATT-94 are not considered.

RESEARCH RESULTS. Th author concluded that SPS measures construe hidden barriers to international trade. However, it is possible to establish "rules of the game", to agree on this problem in concluded agreements on the rules of application of SPS measures, minimizing the possibility of their unfair use. As for the EAEU law, it affects the development of international norms in the field under consideration.

DISCUSSION AND CONCLUSIONS. The urgency of the issues dealt with in the article is based on the fact that every resident of any state in one way or another wants to be sure of the safety of all that he consumes and that the state or a number of states within the framework of an international organization are obliged to ensure this. The Eurasian Economic Union (EAEU) is no exception, it also faces similar tasks. The article analyzes the results of activities in the sphere of decision-making on SPS measures and the framework of the international organization of regional economic integration – the EAEU.

INTERNATIONAL FIGHT AGAINST CRIME

79-89 3169
Abstract

INTRODUCTION. The article is devoted to the problem of identifying the ideological and legal foundations of international cooperation of the criminal police. The paper considers International law as a special ideological form of law. One of the functions of this law is the function of organizing cooperation in combating crime at the international level. The segment of international law governing criminal police cooperation within an organization such as Interpol is primarily involved in the implementation of this function.

MATERIALS AND METHODS. Using a socio-axiological approach, which studies the law not as a set of norms, but as a system of conventional values based on needs and interests of social actors in the process of legal discourse, the authors analyse the legal values and ideas that underlie the activities of Interpol. The paper studies international regulations of the Interpol activities as well as the regulations of the activities of the National Central Bureau of Interpol of Ministry of Internal Affairs of Russia, also studies theoretical materials (articles and studies), that could shed light on the aspects of formation and development of these ideas and values on the doctrinal level. The paper undertakes functional and structural analyze of the legal ideology of Interpol. It utilizes dialectical, system, formal-logical and comparative law methods.

RESEARCH RESULTS. The authors build the theoretical model of the legal ideology structure and determine its basic functions. Its contents, i.e. values, ideas and principles, could formally manifest themselves in legal documents on both international and/or national levels, or informally emerge in the public legal discourse in the law enforcement field. On the functional level, the legal ideology of Interpol creates ideological foundations for law enforcement, including legal data base for combating crime and co-operation in law enforcement field and law enforcement practices, legitimizes international co-operation in combating crime, brings together international eff ts in combating crime, and strengthens international co-operation in this field. It also facilitates the universalization of the international law order and creation of legal policies in combating crime.

DISCUSSION AND CONCLUSIONS. The legal ideology of Interpol is a complex system employing functional potential, that remains to be studied in details. The unique nature of ideas and values (law values), that lay ground for the legal ideology of Interpol, their high effi ency, derive from its particular functions, proven to be valuable on the modern stage of international co-operation in law enforcement field. The legal ideology of Interpol, in terms of its contents, tends to be very specific on the values level, because it encompasses legal values of conventional nature, as well as legal ideas supporting these values, and principles directed at them. Its contents never stop transforming accordingly to ever changing realities of international relations in the process of uninterrupted public legal discourse in law enforcement field. At the present moment, both its flexibility in terms of contents and functional potential allow us to see it as an important factor contributing to the development of the international law.

LAW OF THE EUROPEAN UNION

90-102 1276
Abstract

INTRODUCTION. Interaction between different legal systems is a substantial challenge for the international law science. Such an interaction becomes even more specific in integration states’ associations which peculiarity is direct effect of the legal acts of such associations with regard to individuals. The article examines various approaches to the interaction between international financial law as a brunch of international law and the EU law. Author outlines different types of the interaction.

MATERIALS AND METHODS. Author researched different types of the interaction on the basis of legal empirical materials in the sphere of finance including international agreements, court decisions, recommendations and working documents. Th methodological basis of the research contains general scientific and special methods including logical, historical, analytical comparative and prognostic methods.

RESEARCH RESULTS. Interaction typology can be made on the basis of various criteria. International financial law and the EU law use a model of interaction between general and special regime of international law as well as a model of implementation of international law in a domestic legal system. The first model has been applied in two cases. When the European Economic Community was established and when mew Members entered in it (genesis interaction) as well as when Member state left the EU (terminal interaction). In the course of current functioning of the EU gives the priority to the second model. The latter contains two methods of interaction: incorporation and reference. Incorporation of soft law rules has specific features since it may be realized not only via legal instruments but also via recommendations of the EU institutes and bodies.

DISCUSSION AND CONCLUSIONS. Basing on the analysis of rule-making and application of law in the EU finance sphere author argues the distinction between monism and dualism is performed using the criterion of the self-execution of international agreements. Interaction of international financial law and the EU law is pursuing on the level of principles and global ideas and values of contemporary world. These principle and values may be declared in the framework of international fora and organizations. Interaction is pursuing on the level ‘general international law and the EU law as a whole’ as well as on the level ‘international financial law and the EU financial law’.

103-122 2147
Abstract

INTRODUCTION. One of the main tasks facing states in the context of growing world population is to satisfy the growing need to provide stable, cheap and environmentally safe energy. These issues can be addressed both through legal regulation and through the introduction of new technologies, including the gradual transition to renewable energy sources. Th European Union can be considered an undisputed leader in this field, which has carried out a major transformation of its internal energy market over the past two decades, resulting in a revision of traditional mechanisms of its functioning. However, the new legal order has led to new challenges, including those of an international nature, which must be addressed exclusively within the framework of international law. In this regard, this article analyzes current legal issues related to functioning of the EU energy market and their relationship with international law, including obligations arising from the WTO agreements, the UNCLOS as well as environmental treaties. In particular, special attention is given to the analysis of the main gas-related provisions of the Third Energy Package as well to the implementation of the cross-border gas pipeline project Nord Stream 2. Finally, the article covers the key points of the recently adopted Clean energy for all Europeans package.

MATERIALS AND METHODS. The study is based on multilateral international treaties as well as legal acts and other offi al documents adopted within the European Union. The study is also based on the teachings of domestic and foreign researchers. The authors use general scientific methods as well as special methods such as historical, systematic, formal and comparative.

RESEARCH RESULTS. The study shows that the acts adopted within the European Union in the field of energy may be in conflict with certain international rules, enshrined in the WTO agreements and the UNCLOS. In addition, the authors show that the implementation of the Third Energy Package by the EU Member States should be carried out taking into account the compatibility of the adopted norms with international legal standards on environmental protection.

DISCUSSION AND CONCLUSIONS. Th authors conclude that despite the severity of the European legislation, it should be based on international law, which can restore the broken balance in relations with involved parties, primarily with Russia. The authors also propose to develop and adopt a number of instruments on environmental protection from damage caused by energy activities, including the prevention of transboundary air pollution over long distances and in the course of development and production of fuel and energy resources of the seabed.

INTERNATIONAL AND NATIONAL LAW

123-132 1573
Abstract

INTRODUCTION. The main purpose of current article is to analyze the measure taken in order to successfully implement mediation in the Republic of Uzbekistan and identify areas in need of further reform. This article reflects the existing situation on the implementation of the mediation procedure in the Republic of Uzbekistan, reveals the existing legislative framework and draws attention to the gaps. It contains changes in legislation made in connection with the entry into force of the Law “On Mediation”, namely, changes made in the Civil Procedure, Civil, Tax, Economic Procedure Codes, as well as to the Law “On Domestic Arbitration Courts”.

MATERIALS AND METHODS. In preparation of the article the author studied the experience of Singapore, China, Germany, Italy and other states on implementation of mediation, there is a comparison of court annexed and private mediation, the advantages and disadvantages of mediation have also been noted, as well as features of the introduction of mediation have also been identified. There are several methods that have been applied during the research such as comparative, empiric, historical and legal ones.

RESEARCH RESULTS. The article reveals some problems of introducing mediation at the present stage of development of society, briefly reveals the content of the law “On Mediation”, which regulates relations connected with the use of mediation to disputes arising from civil law relations, including in connection with business activities, as well as individual labor disputes and disputes arising from family relations. This article also provides some recommendations for the successful implementation of the institute of mediation in Uzbekistan, as well as the popularization of this institution among the population.

DISCUSSION AND CONCLUSION. In the article there is the recommendation to develop a strategy for the development and promotion of mediation, to train all students of the jurisprudence in the “Mediation” discipline, to identify commercial mediation as one of the training directions for mediators, to introduce judicial mediation and to make the mediation procedure mandatory for a certain types of cases. First session of mediation is advised to be obligatory and the continuation of the procedure is left to the will of the parties. Besides that, there is a proposal to amend the legislation noting that organization with state ownership should add mediation clause to their contracts.



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