INTERNATIONAL ENVIRONMENTAL LAW
INTRODUCTION. The article covers the legal aspects of the establishment of a new international forum – the Arctic Economic Council – and its role in the existing international legal framework for governing the Arctic Ocean, including the Arctic seas. The status and the functioning of the said international forum, particularly with regard to the activities within its Working Groups, have been examined based on the analysis of the documents adopted by the forum since its establishment. Special attention has been paid to the legal analysis of the coordination of the newly established forum with the Arctic Council and the prospects of such institutional cooperation.
MATERIALS AND METHODS. The research done by the authors on the relevant documents released by the Artic Council, in the context of legal and scientific sources on the topic of the Arctic Ocean and its seas, as well as on the Reports of the Arctic Economic Council submitted to the Senior Officials of the Arctic Council, underlies this article. The article also takes into consideration political and legal research of the Arctic Council’s work, aimed at the sustainable development of the economic activities in the region, as well as respective archive documents from the electronic database of the Arctic Council, including relevant press releases.
RESEARCH RESULTS. The Arctic Economic Council (AEC), established upon the initiative of the Arctic Council in 2014, is a new circumpolar business-forum, which aims at fostering the sustainable development of the Arctic region by substantive cooperation with the entrepreneurs, carrying out economic activities in the region or planning to do so. The new international organization has the potential to become an effective international legal mechanism to promote greener economies in the Arctic; meanwhile, the organization is yet to become a constructive platform for dialogue on fostering the economic activities in the region.
DISCUSSION AND CONCLUSIONS. The AEC foundational documents determine the structure and the course of action of the organization. The article, nevertheless, suggests that the executives and the Secretary of this newly established international forum ensure that the business representatives, committed to conduct activities in the Arctic, seek to comply with the international environmental standards, applicable to the Arctic; particularly that, subject to the unique vulnerability of the Arctic environment, an exchange of best practices takes place. Moreover, in view of the increased shipping and growth of other marine activities in the region, the Arctic business standards not only need to be more environmentally oriented, but also take into account the possibility of diversifying the Arctic economy. The AEC could focus its efforts on enhancing the quality of the regional regulation of the economic activities in the Arctic, paying particular attention to the coordinated self-regulative measures of the legal entities in different countries. In this case, its activities may prove to be more relevant and effective.
МЕЖДУНАРОДНОЕ ПРАВО И ПОЛИТИКА
INTRODUCTION. International legal policy is a new object in international legal studies, although this phenomenon exists as long as the external relations of States. International legal policy is a rare case of research subject, which remains unexplored. International legal policy as a Concept of State's policy towards legal aspects of international relations was formed in the 80-s of last century. Earlier the questions and their particular aspects now embraced by international legal policy were divided between international lawyers and international relations researchers. However international legal policy is an integral system of State's approaches to international legal matters, therefore its punctual research is relevant only from comparative point of view. It would be interesting to compare States' positions on concrete issues or States' tactics at different stages of realization of international legal norms. This article concerns the question whether comparative studies of international legal policy can be integrated into existing fields of comparative foreign relations law or of comparative research of international law.
MATERIALS AND METHODS. The article surveys theoretic questions primarily on the base of doctrinal sources. The retrospective analysis of the comparative method in international law is based on works published by Russian and foreign experts during the XX century. Particular attention is drawn upon works of founders of comparative research in international legal studies. The concept of foreign relations law in the scholarship and practice of the U.S. is researched on the base of national case law, which formulated the principle of executive exceptionalism in State foreign policy. Research work is realized with the use of analysis, synthesis, systematisation, as well as methods of historical and comparative method.
RESEARCH RESULTS. The Article consistently reveals meaning and the content of international legal policy as one of the authors of the concept, French lawyer and diplomat G. de Lacharriere, presented it. The Article examines the history of foreign relations law in the U.S. and presents its doctrinal estimations from viewpoint of American constitutional law. The research work specifies different points of view on content of foreign relations law and approaches to its justification. Indeed international legal policy and foreign relations law can be compared as two types of State’s approach to its legal position on the international scene. There are six parameters for comparison: sources, functions, subjects of both concepts, questions on allocation of foreign powers in the State, on relationship between international and national law, on the role of national courts in interpretation and application of international norms. In consideration of “national interest” concept the attribution of international legal policy to international organisations or supranational association is judged as incorrect. The article examines the question of applicability of comparative method in the international law within the discourse among scholars on how differently modern States evaluate international legal norms. Analysis of the tendency to contrasting States’ approaches to the international law encompasses its development from notions “international law of transitional period”, “international legal systems”, to notions “national approach”, “legal style”, “legal culture”. Brief survey of comparative international law gives perspective on diversity of approaches to comparable aspects of the international law. Comparative studies of international legal policy could get consolidated among them.
DISCUSSION AND CONCLUSIONS. At first sight the comparative method is hardly applicable to the international law. However the universality of the international law doesn’t exclude variety of approaches to it. The research into international legal policy determined by national interests of every State allows to systemize positions of a State into a single strategy. At the same time comparative method doesn’t only provide classical comparison of States’ positions by issues, but also offers to compare inner-workings of the international legal policy and shaping factors. Nowadays in the context of trends on diversification of international relations (fragmentation, regionalisation), growing popularity of the comparative method translated into comparative foreign relations law and comparative international law. However international legal policy doesn’t correspond with categorial apparatus of comparative foreign relations law. International legal policy is nor able to apply methodological tenets of comparative international law due to its multivalued content. Most likely comparative studies of international legal policy can become a new approach within comparative international law, which should be based on the principles of concreteness and consistency.
LAW OF INTERNATIONAL ORGANIZATIONS
INTRODUCTION. The article discusses the main features of law of the Eurasian Economic Union in field of science, technology and innovation (STI) from the point of view of new challenges of Industry-4.0. The purpose of present study is analysis of current legal regulation of science and technology interconnection of member states and revealing the possible scenarios of its developing.
MATERIALS AND METHODS. In the course of preparation of this study, there have been used the act constituting the Union’s law, namely international treaties and documents (decisions, directions and recommendations) of institutional bodies. Additionally, author took into account the generalization of academic economists as to level of science and technology integration within the EAEU. 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 formally-dogmatic). However, as most important has become the systemic approach allowing to understand the EAEU’s law in appropriate field as a complicated and multi-level system.
RESEARCH RESULTS. Based on conducted analysis, the author has come to following research findings. The law in field of STI is a subsystem of EAEU’s law as such; subject matter of its regulation is a various forms of interconnection (coordination, cooperation and integration). Analyzed legal complex is unity of subsystems of primary and secondary law, while primary law is characterized by fragmentation. In turn, a great importance in regulating the science and technology interaction belongs to recommendatory acts of Eurasian economic commission. The factor of development of Union’s law in regarded field at the current stage is the recognition of science and technology interaction in a kind of separate integrative direction.
DISCUSSION AN CONCLUSIONS. The author has ascertained the controversial issues concerning the completeness of legal regulation of science and technology cooperation and mainstream of its further improvement. The treaty base is needed to be improved first of all. Additionally, removing the imbalance in regulatory environment that means the lag of level of legal regulation of science and technology cooperation in energy sector over regulation in area of industry and agriculture is already in great demand. As a principles of improvement of the Union’s law in field of STI, author has suggested followings: strict adherence to legal model of the EAEU; taking into account the modern infrastructural trends closely connected with diffusion of digital platforms; equilibrium of primary and secondary law; increasing the role of program and strategic regulation; conjunction of differentiation and integration of legal regimes in area of traditional and emerging research and developments.
AIR LAW
INTRODUCTION. Within the context of the theory of ‘the concordance of the wills of States’ developed in the Russian doctrine of international law and on the basis of the contemporary practice of States and international aviation organizations (in particular, International Civil Aviation Organization (ICAO)) the author examines the process of rule-making and the sources of international air law.
MATERIALS AND METHODS. The present research has been conducted on the basis of international air law treaties, the ICAO documents, as well as the works of Russian and foreign international law experts. The methodology of the research is based upon general scientific and special methods, including dialectical method, methods of analysis and synthesis, deduction and induction, comparative legal method.
RESEARCH RESULTS. On the basis of his research the author has been able to identify and systematize the present-day sources of international air law, i.e. the forms, in which the norms of this branch of interna- tional law exist. Theoretical and practical problems relating to the development and implementation of these sources of international air law have been examined.
DISCUSSION AND CONCLUSIONS. On the basis of the theory of ‘the concordance of the wills of States’ developed in the Russian doctrine of international law and the contemporary practice of States and international aviation organizations the following sources of international air law have been identified: (i) international treaties; (ii) international customs; (iii) ICAO international standards; (iv) Technical Instructions for the Safe Transport of Dangerous Goods by Air. Each of these sources of international air law has been examined in detail both from the point of view of the rulemaking process and within the context of its role played in regulation of cooperation between States in the area of international civil aviation. In particular, the author shows the specific role in international air law of such traditional sources as international treaties and international customs. As for the international standards and the Technical Instructions for the Safe Transport of Dangerous Goods by Air, they are described as special complex forms of creation of norms of international air law emerged as a result of rapid development of civil aviation in the second half of the 20th century and its transformation into the global passengers and cargo transportation network. Overall examination of the currently existing rule-making processes and sources of the international air law demonstrates that they are rather dynamic and well take into account the contemporary development of global aviation and the interests of different States.
INTRODUCTION. The concept of nationality of an aircraft is borrowed from the law of the sea; it is currently enshrined in the Chicago Convention on International Civil Aviation of 1944. Registration performs several functions: firstly, it allows the identification of an aircraft; secondly, it implies the obligation of the state of registration to control its operation; thirdly, it implies the responsibility of the state of registration in the event of failure to exercise such control.
MATERIALS AND METHODS. The research was done on the basis of the Chicago Convention of 1944, Cape Town Convention on International Interests in Mobile Equipment 2001, Protocol on Matters Specific to Aircraft Equipment 2001, acts of Russian legislation and acts of offshore legislation, primarily Air Navigation Order 2013. The research involved historical method, methods of formal logic and comparative legal method. The main objective was to develop proposals aimed at increasing the attractiveness of the Russian registry.
RESEARCH RESULTS. The Russian registration system has several shortcomings: lack of a codified act; presence of two authorities with overlapping competencies (the Interstate Aviation Committee and the Federal Air Transport Agency); high customs duties on the import of certain types of aircrafts. To this should be added the shortcomings relating to the organization of the registration process: a high degree of its bureaucratization, lengthiness, shortage of qualified specialists, etc. The registration of an aircraft in offshore, on the contrary, implies a number of advantages: speed and “friendliness”, confidentiality of beneficiary data, absence of VAT and customs duties, quality of airworthiness control.
DISCUSSION AND CONCLUSIONS. The problem can be resolved imperatively – by fixing the strict obligation of airlines to register aircraft in the domestic registry under the threat of non-issuance or revocation of the operator’s certificate. If, however, this registry does not meet international standards, this measure will adversely affect the development of the aviation sector and the safety of transport. In this regard, the creation of a transparent, holistic and efficient registration system meets the interests of the state no less than the interests of airlines. With regard to the Russian Federation, achieving this goal involves completing a number of tactical tasks, aimed at simplifying formalities, ensuring recognition of the Russian registration system and stimulating trade turnover.
INTERNATIONAL CRIMINAL LAW
INTRODUCTION. The practice of modern international criminal courts and tribunals raises serious questions about the proper enforcement of the rights of the accused. Among these rights, the accused's right to compensation is highlighted. Compensation is given to the accused (regardless of the verdict) for violation of his procedural rights and fundamental human rights and compensation to the acquitted person.
MATERIALS AND METHODS. The analysis of ensuring the human right to compensation in the event of an unjust sentence is carried out on the basis of international human rights treaties, treaties on the creation of international courts, including appeal to the travaux preparatoires of the Statute of the International Criminal Court (ICC) and the practice of international criminal courts and tribunals, especially the ICC, as well as the International Tribunal for Rwanda and the International Tribunal for the Former Yugoslavia. The study was conducted using general scientific methods of cognition (in particular, analysis and synthesis), as well as comparative legal, historical legal and formal dogmatic methods. To achieve the corresponding conclusions, various methods of interpretation of the rule of law are used, in particular, grammatical, systematic, teleological, harmonic, etc.
RESEARCH RESULTS. In the activities of international criminal courts and tribunals, a violation of the accused’s right to a hearing within a reasonable time is systemic, including due to the absence of any procedural deadlines on the one hand, and the absence of any rules (or their non-application) to restore the rights of the accused and punishment of the party who committed the violation of these rights. This situation poses serious problems of ensuring the rights of specific accused (including justified), but also the development of modern international criminal procedural law and international human rights law.
DISCUSSION AND CONCLUSIONS. National legislation and international human rights instruments provide for the right of an acquitted person to compensation. In international criminal courts, this issue, however, is addressed in different ways. The statutes of international criminal courts ad hoc created by the UN Security Council do not mention the right to compensation for an accused or acquitted person. At the same time, the International Criminal Tribunal for Rwanda recognized that the absence of a reference to law in the Statute of the Tribunal does not mean that the persons concerned do not have the corresponding right. At the same time, this recognition did not have practical consequences. The Statute of the International Criminal Court recognizes the right to compensation, however, does so to a limited extent. Thus, in international criminal courts and tribunals, the provision of the human right to compensation (primarily compensation to an acquitted person) is performed at a lower level than that established in international human rights treaties.
INTRODUCTION. While abroad over the past decades both comprehensive research and publications touching on individual aspects of amicus curiae in international law have been edited, it garnered only very little scholarly attention in Russian scientific literature. The frequency of its use and the nature of its impact on international judicial and quasi-judicial proceedings vary among branches of international law. This article considers one of the functions that an amicus curiae may perform in international criminal proceedings – the function of expertise.
MATERIALS AND METHODS. The article is based on the existing volume of scientific knowledge in different branches of international law, such as law of international treaties, international criminal law, law of international organizations, human rights law, international economic law, history of international law and others. The research is based on the conclusions and inferences achieved mainly in the foreign doctrine of international law including publications of this year, due to the low degree of development of the topic in Russian literature. The empirical basis of the research is formed by international legal acts, internal acts of international criminal tribunals, materials of proceedings relating to interstate disputes, international advisory proceedings, practice of international criminal courts. The methodology used is a combination of general scientific methods of cognition (methods of analysis and synthesis, induction and deduction, critical and dialectical) and private scientific methods typical for legal sciences (historical, comparative).
RESEARCH RESULTS. International criminal courts actively rely on the amicus curiae mechanism to obtain information, both legal and factual, on issues under consideration in criminal proceedings. The admission of amicus curiae to international criminal proceedings is entirely at the discretion of the judiciary. In practice, amicus curiae applications are submitted by subjects of international law, international non-governmental organizations, natural and legal persons and professional associations.
DISCUSSION AND CONCLUSIONS. Too frequent use of amicus curiae mechanism seems to be difficult to reconcile with the iura novit curia maxima. Its current practice provides fertile ground for all kinds of abuse and needs to be reviewed. In particular, the experience of the UN International Court of Justice, the International Tribunal for the Law of the Sea and the UN Commission on International Trade Law could be instructive in this regard.
BOOK REVIEW
INTRODUCTION. The article contains a comprehensive analysis of one of the fundamental works on international law, which was published in the post-Soviet space - “Encyclopedias of International Law” in three volumes. The work was performed at the Institute of State and Law. V.M. Koretsky NAS of Ukraine and its methodology is based on the sociological approach of establishing the laws of social development. Its timeliness at the time of the crisis of international law is noted. This requires its adaptation to new, changing conditions of social development. However, moving forward, it is necessary to fix the clear legal structures of international law. Inaccurate definitions of legal concepts, allow their ambiguous interpretation, complicate law enforcement and allow abuse. The encyclopedia is a basis that has fixed the most advanced views to date in the field of international law. It contains the best practices of the Russian, Soviet and, in a new quality, post- Soviet school. Given the volume of material, the article highlights the 1st volume of the Encyclopedia, which adequately characterizes the entire huge array of work.
MATERIALS AND METHODS. The article considers the 1st volume of the Encyclopedia of International Law in three volumes, uses scientific works presented in domestic and foreign science on the international legal regime of the Arctic sea spaces, the application of estoppel rules, regulatory and analytical material, and international judicial practice. The study is based on general scientific methods of cognition (systemic and structural approaches, analysis and synthesis, induction and deduction), as well as special methods (comparative legal, historical legal, modeling).
RESEARCH RESULTS. The 1st volume contains articles on international treaties, which are included in the textbooks of the course of international law and are little-known. There are articles on international organizations, specialized bodies and institutions; terms and concepts. A significant place in the Encyclopedia is given to international legal practice, including international judicial and arbitral awards. The authors of the Encyclopedia are leading scientists, many of whom have earned authority on a global level. The Preface focuses on the fact that numerous crisis phenomena and military conflicts of the last period in the world, including Ukraine, bring chaos to international relations and threaten peace and security. The Encyclopedia reflects the influence of modern challenges and threats on the level of effectiveness of the application of the principles and norms of international law, highlights the role and significance of the UN Charter. A significant place in the Encyclopedia is devoted to the historical aspects of the development of international law, starting with the treaties of Kievan Rus with Byzantium. The participation of Belarus, Russia and Ukraine as part of the USSR in the founding of the UN. Considered the collapse of the USSR, its consequences for international law. The way out of this situation is possible only by restoring the balance of forces and establishing a new world law and order on the basis of strict observance of the norms and principles of international law. Attention is paid to sharp historical topics. The encyclopedia contains a large selection of articles about personalities, among which are the founders of international law and current scientists. Some of them are given special attention in the article.
CONCLUSIONS. It is concluded that Russia could revise its position, voiced by the USSR, regarding the width of territorial waters in the Arctic Ocean. The encyclopedia of international law is the first systematic work that has collected knowledge in the field of international law in the post-Soviet space. The Encyclopedia reveals the features of the legal nature of international law and the content of its basic concepts and categories.
INTRODUCTION. The review reflects the specifics of the methodological approach, implemented by Yu.S. Bezborodov in the analysis of the current phase of interaction between national legal systems and international law. Reference is made to the creation of a new conception that employs the notion of legal convergence to reveal the mechanism of getting national legal systems affinitive to each other. Attention is drawn to the content of legal convergence, the reasons for its dissemination, the link with international law as well as the correlation of convergence with related categories – globalization, universalization, sovereignty, etc. The author’s views on the interrelation between sovereignty and supranationality, universalization and localization as conditions of functioning of international law, constituting the predominant basis of convergence of national legal systems, are presented. The evaluation is given to the author’s position concerning the methods of legal convergence, in particular international legal integration. The emphasis is given to correlation of the presented forms of legal convergence. It is pointed out that comparative and legal analysis of integration in different regions of the world, including in the post-Soviet space, is important for understanding the current results of legal convergence.
MATERIALS AND METHODS. The study is based on the conclusions and approaches formulated in the peer-reviewed monograph as well as the materials of the domestic and international legal doctrine on the subject-matter concerned. In writing the review the author used general and special scientific methods.
RESEARCH RESULTS. The convergence of national legal systems and international law is influenced by different processes either inherent to the mechanism of international legal regulation or extraneous to it. They are distinguished by their considerable specificity and varied character. However, they do not impede legal convergence to be realized through various forms and methods.
DISCUSSION AND CONCLUSIONS. The review of the scientific work led to the following conclusions: a) the author managed to present his own non-contradictory conception of convergence of national legal systems and demonstrate its connection with a number of current social phenomena; b) the monograph provides convincing arguments for the proposed forms and methods of legal convergence; c) the comparative legal characteristics of the regional international integration organizations are detailed and allows to form quite complete and correct comprehension of them. In addition, the review outlines a number of issues interesting for further discussion.
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