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Moscow Journal of International Law

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No 2 (2020)
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https://doi.org/10.24833/0869-0049-2020-2

INTERNATIONAL SECURITY LAW

6-21 2798
Abstract

INTRODUCTION. Outer space is an increasingly competitive environment. This raises incentives for states to place conventional weapons in outer space. The 1967 Outer Space Treaty (OST), the applicable legal regime, is silent on the legality of the placement of conventional weapons, however. Since the early 1980’s, the multilateral diplomatic process on the Prevention of an Arms Race in Outer Space (PAROS) aims to explicitly prohibit the weaponization of outer space by a new international treaty. Yet states have not agreed on such a weapons ban treaty so far. This article analyses the multilateral negotiations’ effects on the applicable international law, namely the legal gap (lacuna) in the OST regime.

MATERIALS AND METHODS. This study analyzes treaty texts, UN General Assembly resolutions, treaty proposals, states working papers, states statements, and reports from international negotiations and meetings. Th analytical framework is the rules for treaty interpretation according to the Vienna Convention on the Law of Treaties (VCLT). Consistent with explanatory and theory–building research, the methods used are those of historical legal research as well as general scientific methods, such as analysis, synthesis, analogy, description, and deduction.

RESEARCH RESULTS. This article identifi s three mechanisms by which the multilateral negotiations on PAROS clarify and inform international law regarding the weaponization of outer space. First, the negotiations led states to communicate their legal positions regarding the issue. This clarifies how states interpret the law. It also allows to assess whether the continuous state practice to not place kinetic weapons in outer space represents subsequent practice of the OST according to Article 31(2)(b) VCLT. Second, the PAROS process produced annual UN General Assembly resolutions that strengthened the principle of peaceful use of outer space and linked it with states general understanding that this implies limits to the weaponization of outer space. As such, this is relevant for the interpretation of the gap in light of the OSTs context and object and purpose according to Article 31(1) VCLT. Third, the negotiations have produced precise language on a prohibition of weaponization in the form of the draft Treaty on Prevention of the Placement of Weapons in Outer Space and of the Threat or Use of Force Against Outer Space Objects (PPWT), which enables the emergence of a prohibition under customary international law. For the interpretation of the OST’s gap, this would constitute “any relevant rules of international law” according to Article 31(3)(c) VCLT.

DISCUSSION AND CONCLUSIONS. This article argues that the multilateral negotiations have broken the legal silence regarding the placement of conventional weapons in outer space. While the three mechanisms help to identify and clarify the law, they also influence the material substance of the law. The PA-ROS negotiations have not led the existing law to clearly prohibit the weaponization of outer space. Yet the negotiations have informed the law such that the existing law hardly authorizes such action. The result is that the issue is unequivocally regulated by international law, i.e. the OSTs gap is undoubtedly a legal gap. Yet the Lotus principle according to which what is not prohibited under international law is authorized falls short of the existing legal situation. This suggests that lex ferenda, the law in the making, has effects on lex lata. Multilateral negotiations – even deadlocked or failed ones – thus may be more than the making of future law but also the shaping of existing law. Accordingly, ongoing multilateral negotiations might be analyzed as supplementary means of treaty interpretation according to Article 32 VCLT. For policymakers, this suggests that negotiations may be used to influence the existing law, even if reaching agreement on a new treaty is not possible.

LAW OF INTERNATIONAL ORGANIZATIONS AND CONFERENCES

22-39 1800
Abstract

INTRODUCTION. The article focuses on the analysis of the international legal personality of the Eurasian Economic Union (EAEU) in the context of its international cooperation. Practical implementation of legal possibilities of the interregional interaction is examined on the example of the legal cooperation of the Union with the UN regional commissions, which have recently been incorporated in its foreign policy concept. The authors have also studied the role of the Russian Federation in the process of the practical implementation of the aforementioned track of the Unions foreign affairs, taking into account Russias chairmanship in the EAEU institutions in 2018.

MATERIALS AND METHODS. Legal acts related to the EAEU foreign policy strategy, theoretical works of scientists on the international personality of regional integration organizations, offi ally published documents and working materials of the Eurasian Economic Commission form the basis of the present study. Its methodological base consists of such methods of formal logic as analysis, synthesis and induction, along with the use of special methods of the legal analysis required for a comprehensive study, including the formal dogmatic and comparative legal approach.

RESEARCH RESULTS. Through the study of the cor-

respondence of the EAEU legal nature to the features of an international organization the authors provide legal justification for the scientific approach under which regional integration associations do not differ from classical intergovernmental organizations from a formal legal point and, as a result, should be considered as fully-fledged subjects of international law. A comparative analysis of the main tracks of international cooperation of the Union over a five-year period has been carried out with the focus on a detailed study of the legal interaction of the EAEU with the UN regional commissions. Despite the fact that in legal acts relating to the EAEU foreign policy strategy all five regional commissions were enshrined in the category of potential partners, remains obvious the imbalance in the practical implementation of this approach: while the most fruitful international cooperation was actually realized by the Union with the United Nations Economic Commission for Europe, to a much lesser extent – with the Economic and Social Commission for Asia and the Pacific, cooperation with the other three regional commissions is either absent or only at the initial stage. At the same time, the Russian Federation played a leading role in realizing the main goals of the Eurasian integration during its chairmanship in 2018, becoming the flagship in the adoption by the Heads of the Member States of the Union on December 6, 2018 of the Declaration on the further development of integration processes within the Eurasian Economic Union.

DISCUSSION AND CONCLUSIONS. With regard to forecasting the prospects for further implementation of the Unions foreign policy strategy, we shall notice, that, first of all, taking into account the obvious growing international cooperation activity of the EAEU with the UN regional commissions, it seems logical, when forming and adopting subsequent acts defining the directions of the Unions foreign affairs and international cooperation, to move from considering them into category “potential partners” to the category of international organizations with which it is necessary to develop existing cooperation mechanisms as well as create new ones. In the context of current geopolitical trends, the importance of strengthening further practical cooperation of the EAEU with the UN regional commissions is due to the need for sustainable socioeconomic development of the Eurasian region and the expansion of foreign affairs of the Union, which can be implemented jointly with the UN working bodies through the expert analytical support of common projects, exchange of regulatory experience in a number of areas of economics and social policy, cooperation in the fi ld of technical regulation and standardization.

HISTORY OF INTERNATIONAL LAW

40-52 677
Abstract

INTRODUCTION. The article analyzes the content of the main legislative acts regulating the activities of pilots and pilot societies in pre-revolutionary Russia. The relevance of the research is provided by the lack of knowledge in domestic science of the specifics of legal regulation of the pilot service in the Russian state in the pre-revolutionary  period.

MATERIALS AND METHODS. Th main sources of the research were normative documents, first of all, legislative acts of national significance, dedicated to commercial navigation and published in The Complete Collection of Laws of the Russian Empire and Code of Laws of the Russian Empire, which regulated the issues of financial security and social status of pilots in the Russian Empire, their responsibility. The methodology consists of the principles used in legal research, as well as general scientific and special methods of legal research (comparative legal, system, formal legal methods, historical and legal analysis).

RESEARCH RESULTS. The Russian experience of regulatory regulation of pilotage is studied: The Maritime Regulations of 1722, the Regulations on Sea Pilots of 1890, the Charter of the Society of Saint Petersburg Pilots of 1896 and other legal acts of this period are considered. The specifics of legal regulation of the pilot service in pre-revolutionary Russia are established.

DISCUSSION AND CONCLUSIONS. It is noted that the regulation of pilot companies as one of the trade unions was carried out under the control of the state. It is stated that the legislation of the Russian Empire, which determines the status of a pilot in the period of the XVIII–XIX century, was, in comparison with the legislation of European States, secondary and in many respects lagging behind the latter. The author focuses on how the structural organization of the pilot service and its legal status changed with the development of legislation.

INTERNATIONAL HUMANITARIAN LAW

53-64 2352
Abstract

INTRODUCTION. In recent years, increased attention has been dedicated at the international level to legal issues concerning the possible employment of artificialintelligence-related technologies in hostilities in armed conflict. Most prominently, discussions in the framework of the Convention on Certain Conventional Weapons (CCW) have addressed juridical aspects relative to emerging technologies in the area of lethal autonomous weapons systems.

MATERIALS AND METHODS. I analyze contemporary intergovernmental debates in the context of the CCW, international legal frameworks pertaining to armed conflict, and developments in relevant technologies. I do so to trace current trajectories and generate an analytical framework to help apply legal responsibility.

RESEARCH RESULTS. A disagreement has arisen among certain States in the context of the CCW as to whether to develop a new primary legal norm or whether existing international humanitarian law is suffi ent. Taking account of that current normative impasse, I propose an analytical framework aimed at ensuring the applicability of international legal responsibility in respect of the employment of AI-related technologies in armed conflict.

DISCUSSION AND CONCLUSIONS. Given the range of relevant technologies, the employment of AI in armed conflict may occur across diverse thematic and functional areas: not only in the conduct of hostilities, including weapons, but also detention, humanitarian services, maritime systems, and many other areas. Identification of the general concepts and specific attributes necessary to apply international legal responsibility across the array of implicated areas may help provide a framework through which to respect the law, guide behavior, pursue accountability, and generate areas of greater normative consensus.

LAW OF THE SEA

65-76 2131
Abstract

INTRODUCTION. On the basis of provisions of the 1982 UN Convention on the Law of the Sea and other legal documents, the article analyzes topical issues of the current and future international legal regulation of the use of maritime autonomous surface ships (MASS), which are capable of completely transforming the shipping and international maritime transportation industry in the near future.

MATERIALS AND METHODS. The issues raised in the article are structurally divided into three main

groups. The first one is connected with the anthropocentrism of the pre-digital era law – that is, with its inability to work with other autonomous subjects except for people and various forms of their organization. The second is determined by specific characteristics of autonomous systems themselves, among which their non-determinism and ability to self-study should be noted. The third group is directly related to the legal support of MASS cybersecurity in the new conditions.

RESEARCH RESULTS. When writing the article, the authors proceeded from the fact that the issue of extending the application of international maritime law to MASS cannot be solved by simply transferring its regulatory impact to new subjects (objects) – artificial intelligence systems or autonomous ships themselves. Such a transfer is impossible, since human and artificial intelligence use completely different decisionmaking algorithms.

DISCUSSION AND CONCLUSIONS. Th  main conclusion of the article is that the widespread integration of MASS into the practice of international maritime transportation will be a turning point not only for the very procedure for its performance, but also for the algorithm of legal regulation of this sphere of public relations. Since the emergence of autonomous ships will mainly result in a gradual decrease of the human component in managing them in favor of artificial intelligence and related automated systems, international law of the sea is unlikely to continue to operate in its current form. It will take a lot of work to adapt and change its norms in accordance with the new realities of the digital era of human development.

INTERNATIONAL FIGHT AGAINST CRIME

77-87 1595
Abstract

INTRODUCTION. Based on the analysis of international acts, as well as the practice of their application, the authors consider the international legal problems of interaction in the detection, investigation and prevention of crimes committed using information and telecommunication networks and in the field of computer information.

MATERIALS AND METHODS. The materials for the study include the Agreement on cooperation of the CIS member States in the fight against crimes in the field of computer information of June 1, 2001, the Agreement on cooperation of the CIS member States in the fight against crimes in the field of information technology of September 28, 2018, as well as other international legal documents in this area. The paper uses comparative, comparative-historical and other scientific methods of research, general and particular ones.

RESEARCH RESULTS. The result of the study is a general assessment of the state of the international legal framework for the interaction of countries in the detection, investigation and prevention of crimes in the information and telecommunication sector, as well as an analysis of the part of it that has legal force for the Russian Federation. The structure, problems and directions of development of international legal regulation in this area are revealed.

DISCUSSION AND CONCLUSIONS. Based on the problematic analysis of the current experience of international legal regulation of cooperation in the fight against crimes committed using information and telecommunication networks and in the field of computer information, the authors concluded that the existing international legal framework for such cooperation is insuffi ent and needs to be improved both at the universal and regional level.

INTERNATIONAL SPORTS LAW

88-101 1061
Abstract

INTRODUCTION. In some areas of international sports regulation, it is lex sportiva (for example, the establishment of rules for sports competitions) or the law created by the State / States (for example, the fight against crime in sports) that plays a dominant role. In a number of areas, international sports law and lex sportiva exercise regulatory impact simultaneously. The purpose of the article is to examine how these two sets of regulations contribute to the observance of human rights in sport. The author's three goals were to analyze the process of interference of regulatory efforts based on examples of prohibiting discrimination, using lex mitior, and countering doping in sports.

MATERIALS AND METHODS. In each case, the author listed the applicable international legal acts and acts of lex sportivа, studied the domestic and foreign doctrine, used the jurisprudence of the European Court of Human Rights (ECtHR) and the Court of Arbitration for Sport (CAS).The author utilised such general scientific methods as the substratum (content), structural and system approaches. The comparative and hermeneutical approaches should be named as specific scientific methods that were used.

RESEARCH RESULTS. Th  author characterised the content of the international legal and corporate standards that have been formed in the spheres of prohibiting discrimination, using lex mitior, and countering doping. As a result of their comparison, she comes to the following conclusions: international law and lex sportiva are unanimous in their intent to eliminate discrimination in sports; lex sportiva seeks to apply the legal standard of lex mitior; in the field of anti-doping, a number of inconsistencies have been identified between international legal and corporate standards recognized by lex sportiva.

DISCUSSION AND CONCLUSIONS. The prohibition of discrimination is an example of harmonization, as a result of which the requirements of international sports law and lex sportiva complement and strengthen each other. The second case is an example of the successful reception by lex sportiva of the legal concept of lex mitior, which is well-known to national and international law. When countering doping at the present stage, it is lex sportiva that dominates, and the failure to fully comply with the requirements of "due process" and, in particular, with the presumption of innocence in respect of professional athletes is a cause of concern to the academic community and the ECtHR.

102-109 810
Abstract

INTRODUCTION. The article examines globalization processes in terms of their impact on sport, namely the integration of sport into current UN programmes based on the acts of the General Assembly and the accompanying framework standards. The author analyses the practices of Member States, the United Nations system and international sports organizations to lay the groundwork for joint action in the field of sport. The relevance of the study in the analysis of the latest UN incentive standards: the Kazan Action Plan and the Global Action Plan to increase the level of physical activity for 2018-2030, thus Russia plays an active role in their implementation.

MATERIALS AND METHODS. In conducting the study, the author relies on foreign doctrine, the practice of the subjects involved in the international sports movement, UN acts. Research methods: a dialectical approach to the knowledge of the WORK of the UN, allowing to analyze it in historical development and functioning in the context of coordination of cooperation in the field of sports. Comparative-legal method and dialectic determined the choice of specific methods of research: comparative and formal-legal.

RESEARCH RESULTS. Based on the analysis of UN acts affecting the impact of globalization on sport, thdevelopment of international relations in the systems of integration sports relations is considered, it is concluded that in the field of international tools A new model for regulating sport is being developed, a holistic conglomeration of rules and regulations that drives the globalism of sport and the achievement of the UN's socially significant goals.

DISCUSSION AND CONCLUSIONS. The author has proven the potential of the UN's analysis of international sporting events, and has come to the conclusion that it is necessary to promote it through sports initiatives as a means of promoting development and peace and topics it is inevitable that permanent cooperation of nations within the world sporting movement is on the development agenda. The arguments in the article in favor of a new model of sports-legal regulation are intended to streamline the international legal set of rules affecting sport.

МЕЖДУНАРОДНОЕ И ВНУТРИГОСУДАРСТВЕННОЕ ПРАВО



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