HUMAN RIGHTS
INTRODUCTION. The global migration crisis taking place in the world and especially within the European Union provokes debates regarding the necessity to change the current approaches to the regulation of migration issues. Thus, extensive work has been done in the recent years on the new future reform of the Area of Freedom, Security and Justice of the EU including the Common European Asylum System. Besides that, the Lisbon Treaty, which entered into force in 2009, provides that the European Union shall accede to the European Convention on Human Rights. Despite the failed attempt of accession in 2014 blocked by the Court of Justice of the EU, the European Union still must fulfill its obligation, which is bound to happen sooner or later. That is why the topic of the present article is of particular interest at the moment. However, it is important to clarify the understanding of certain terms used in the heading of the article. In particular, it should be noted that the term “aliens” in relation to the European Union legal order covers nationals of states that are not EU-members and do not apply the European Union law concerning migrants on other grounds (for example, due to the membership in the European Economic Area) and stateless persons as well. Further, the reader should take into account that the European Convention on Human Rights as an international treaty is not, strictly speaking, a source of EU law per se as the EU is not a party to the ECHR, at least so far. Therefore, the European Union is not directly obliged under international law to implement the ECHR. Nevertheless, the provisions of the Convention formed the basis for one of the most significant sources of the EU law – the so-called “general principles of the EU law”. Most of them were later codified in the Charter of Fundamental Rights of the European Union, which expressly stipulates that the meaning and scope of the Charter rights which correspond to rights guaranteed by the ECHR shall be the same as those laid down by the ECHR. It means that today the EU already shall comply with the Convention standards regardless of its non-accession to the ECHR as a collective party. Due to objective limits of the text volume the present article concentrates on implementation of the key substantive Convention guarantees concerning forced removal. Consequently, it does not cover the procedural standards laid down by Article 13 of the ECHR. Moreover, the research does not touch upon the general standards of Articles 3 and 8 of the Convention applied not only in the context of removals of aliens but also in other situations (e.g., regarding the conditions of detention). The aim of the present article is to evaluate the implementation of standards of the European Convention on Human Rights regarding forced removal of aliens in the European Union law and to suggest measures to ensure compliance with the Convention guarantees in case of detecting any problematic issues.
MATERIALS AND METHODS. The research refers to the provisions of the European Convention on Human Rights, the primary and secondary EU law, the case-law of the ECtHR and the CJEU, the recent works of Russian and foreign scholars and also the Council of Europe handbooks. The methodological basis of the research consists of general scientific methods (analysis and synthesis, deduction and induction, classification, systematization, prediction) and special legal methods (comparative legal and formal-legal methods).
RESEARCH RESULTS. Today the EU law thoroughly regulates such areas as granting international protection to third country nationals; determination of the member state responsible for examining an application for international protection lodged in one of the member states by an alien and his/her subsequent removal to this member state; removal of illegal immigrants to third countries and also the legal status of third country nationals who are family members of an EU citizen. The provisions of EU legal acts in this regard were formulated inter alia on the basis of the case-law of the ECtHR. Although the ECtHR has found violations of the Convention by the EU member states in a number of cases concerning the application of the EU law in the migration context (for example, within the framework of the Dublin system), all these violations were rather caused by exercising of discretionary powers by the member states than resulted from the content of the EU law itself. Moreover, the human rights-based approach used by the CJEU in the interpretation of certain potentially problematic legal acts (in particular, the Framework Decision on the European arrest warrant) contributed to the fact that the ECtHR has never come to a conclusion that the presumption of equivalent protection granted by the EU law (formulated in «Bosphorus Airways v. Ireland» in 2005) was rebutted in any cases regarding forced removal of aliens. Besides that, as of today in many aspects connected with migration the EU law provides broader protection that the Convention.
DISCUSSION AND CONCLUSIONS. The standards of the European Convention on Human Rights regarding forced removal of aliens have been success-fully implemented in the European Union law despite certain originality of how the Convention guarantees are incorporated to the EU legal order in general. This is confirmed, among other things, by the fact that the ECtHR has never come to a conclusion that the presumption of equivalent protection granted by the EU law was rebutted in any cases regarding forced removal of aliens. However, the theoretical possibility of rebuttal of the said presumption in future cannot be excluded and the whole concept of such presumption has been occasionally criticized. The time will show whether the future EU legal acts (in particular, those adopted in the course of the ongoing reform of the Area of Freedom, Security and Justice in response to the escalation of the migration crisis) will fully comply with the European Convention on Human Rights.
INTERNATIONAL FIGHT AGAINST CRIME
INTRODUCTION. In today’s world, threats to international information security are increasing. One of them is the use of information and communication technologies for criminal purposes. The United Nations has become the centre for the development of measures to counter such practices. The article discusses the role of the United Nations in the formation of a new international legal institution.
MATERIALS AND METHODS. The study was based on resolutions of the United Nations General Assembly, the United Nations Security Council, the texts of relevant international treaties and draft treaties, and academic writings. The methodological basis of the study was the general scientific and private scientific methods of knowledge which are traditional for legal works.
RESEARCH RESULT. As a result of the research, the authors corrected the view of the term "information terrorism" that is being approved in legal science, and highlighted the provisions of UN General Assembly and UN Security Council resolutions that form the normative basis for state ‘countering crimes in the information space, and more broadly, the use of information and communication technologies for criminal purposes.
DISCUSSION AND CONCLUSIONS. The authors note that the formation of a new international legal in- stitution takes place within the framework and under the auspices of the United Nations mainly under the basis of soft law norms. But now a new stage of "switching" is beginning. It is the stage in which the method of developing international recommendatory norms turns to the method of developing international Treaty norms that have a more stringent legal force.
LAW AND POLITICS
INTRODUCTION. A specific feature of the current state of international relations is the existence of elements that reflect the growing antagonism between the leading countries that make up the world order, as well as between such countries and those international associations that are supposed to regulate and sometimes directly manage the cooperation among the subjects of international relations. The totality, the acuteness and the complexity of these antagonisms determine the phenomenon which is defined as a “crisis” by the experts who analyze the nature and the development of international relations. The article below analyzes different opinions of legal experts in relation to the objective needs of legal regulation of international affairs expressed from the view point of prospects and new forms of such regulation, as well as the legal instruments used by the countries when faced with encroachment on them on the part of other players, i.e. states and their associations. The author mentions the fact that the political, economic and legal development of the system of international relations in the last few decades has become sustainably dependent on the integration processes taking place within the framework of the world order in whole, i.e. on something commonly defined as the “globalization”, while the objective prerequisites for the harmonious integration with interests of all countries taken into account are often absent in the designated processes and the main drivers of globalization efforts are those subjects of international relations that get most of the benefits from these processes, such as states, public organizations, specific public figures. As a result, the customary and efficient forms and contractual relations in international law are being re- placed with the ideas of “global law” or “supranational law” based on the intent to implement the “denationalization” of law by way of submitting the legal systems of some sovereign states to the will of international institutions. The activities of such institutions established numerously in the post-war period are of increasingly administrative nature in cases when such organizations are vested with authoritative, supervisory or other similar powers whilst the specific features of national legal order are ignored. A separate issue in the development of international law, both at the doctrinal level and in terms of practices of international administrative and judicial bodies, is the trend towards the stimulating of the loss of the so-called “national legal identity” in favor of various network-based, surrogate and culturally unspecific forms of regulating relationships, first and foremost economic ones. The dilution of legal norms, standards and rules that are customary for the population of the developed countries makes a notable impact on the public con-science, creating the objective preconditions for a boom in “legal nihilism” and the public negation of the necessity to abide with the rules of law, all this going in parallel with such inadequately working principles as the “supremacy of law”, “observance of civil rights”, “democratic basis of social structure” etc. In the opinion of the author, the fact that the Western countries and their closest allies have lost the perception of the necessity to preserve the distinction and the independence of the legal concepts and institutions created during the centuries of the world development and have made their choice in favor of the expansion of the functions of international organizations and associations is the historical phenomenon that characterizes a certain stage in the development of the world order. The creation of economic and political forms at this stage is followed by the development of law that is cyclical, uneven and not always logical from the viewpoint of historical process. The return of the law to its traditional, system-level basics that are clear to everyone taking part in the social relations is often facilitated by crises, such as the one in place today when the existing challenges and problems are complemented by the objective force majeure events like the virus attack in 2020 which the amorphous “network-based” instruments or not entirely just and efficient elements of the “international legal order” cannot cope with, as opposed to the active governmental and legal mechanisms of sovereign states capable of ensuring the balance of legal instruments and administrative levers of management in crisis situations.
MATERIALS AND METHODS. The methodology of the analysis is comprised of the system-based and formally jurisprudential methods that analyze not only the theoretical works of the leading Russian and foreign scientists, but also a considerable bulk of legal standards, judicial acts and sources pertaining to the activities of international organizations. This allows to look upon the general trends in the development of Russian domestic law and international law institutions, statutory acts and relevant legal doctrines, as well as to demonstrate their interdependence and the similarity in some of the lines of their development. The issue of conflict interaction of national (in particular, Russian) legal systems and the activities of international judicial bodies is discussed separately in the article. The obvious dependence of the activities of international judicial bodies based on the relevant international agreements and conventions on the political situation in the world is also shown in the article. A conclusion is drawn as to the advisability of revision of the key provisions of international acts adopted in different times and regulating the procedure for the formation and operation of international judicial bodies, such revision required so as to provide for the supremacy of the Russian Constitution in cases of conflicts between the court orders and the provisions of the fundamental law of Russia.
RESEARCH RESULTS. The articles outlines the results of the analysis of the issue of state sovereignty and national jurisdiction from the viewpoint of the efforts taken by the leading Western countries with a view to ensure the advantages of their legal and judicial systems in the process of international, first and foremost, economic cooperation. Conclusions are drawn in the article as to the ways and forms of competition in the sphere of law whereby the separate groups of countries, seeking to constrain its economic rivals, impose such ways of regulating the economic activities that give advantages to specific economies to the detriment of the others. One of the aspects of such competitive practice, as the author believes, is the set of anti-offshore measures extensively implemented at the initiative of the US tax agencies and the international tax agencies marching in their lockstep in order to undermine the reputation of major Russian companies and create the conditions for the worldwide persecution of Russian businessmen and government officials.
DISCUSSION AND CONCLUSIONS. Based on the examination of new phenomena in the international law practice, the author concludes that the efficiency of legal instruments aimed at the protection of Russian national interests, including those of the Russian private business, against various abuses and discriminatory acts on the part of foreign laws enforcement agencies and judicial bodies, must be enhanced. The application of the principle of “extraterritorial jurisdiction” intensively applied in the US courts is demonstrated by the examples of UD doctrines, such as “arm’s length” and Alien Tоrt Statute that are actively used in the American judicial system contrary to the principles and rules of application of the decisions of national courts enshrined in the relevant international covenants. A conclusion is drawn in respect of the growing influence of the social and political processes on the development of international law institutions and mechanisms for the regulation of public processes. As noted by the author, it is necessary to integrate the efforts of legal experts from different law schools and traditions in order to preserve the role of the main public regulator played by both national and international law.
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 subsidiary rule-making processes in international air law as the integral part of the whole rule-making process of this branch of international law.
MATERIALS AND METHODS. The present research has been conducted on the basis of international air law treaties, the resolutions and documents of ICAO, 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 achieve the following results: (1) detailed and precise classification of all acts, decisions and documents (including, in particular, numerous ICAO documents) concerning the activities of international civil aviation and adopted or approved within the framework of the subsidiary rule-making processes in international air law; (2) defining the practical importance of these subsidiary rule-making processes within the context of the whole rule-making process of international air law; (3) discovering current problems of the rule-making process in international air law and proposing possible ways of its improvements in view of the interests of the Russian Federation and international aviation community as a whole.
DISCUSSION AND CONCLUSIONS. After examination of the subsidiary rule-making processes currently existing in the international air law it can be concluded that these processes are rather dynamic and well take into account the contemporary development of global aviation and the interests of different States. At the same time, the recent trends within ICAO and other international aviation organizations towards simplification and acceleration of such rule-making processes by way of shifting many substantial provisions from mandatory into non-mandatory acts and documents or through limitation of the States’ participation in these processes can negatively affect the States’ interests, impede the achievement of universal uniformity in regulations, standards and procedures and, eventually, even jeopardize the global aviation safety.
INTERNATIONAL HUMANITARIAN LAW
INTRODUCTION. The article analyses the sources of international law, national legislation of the Russian Federation, as well as that of certain foreign States regulating the operation of private military and security companies (PMSCs) in armed conflict. The article highlights the out-comes of the work of the UN Special Rapporteurs and Working Groups to study the activity of PMSCs and the impact it had on the observance of human rights. The authors further analyze the status of PMSC personnel under international humanitarian law. The article also looks at the positions expressed by the delegations of Member States during the discussion of the 2010 Draft Convention on Private Military and Security Companies (PMSCs) and provides recommendations for developing an appropriate international regulatory framework. The authors also examined State practice of the implementation of the The Montreux Document on Pertinent International Legal Obligations and Good Practices for Statesт Related to Operations of Private Military and Security Companies During Armed Conflict related to the operation of private military and security companies during armed conflict.
MATERIALS AND METHODS. The article contains an analysis of the main sources of international law, the documents drafted by the United Nations International Law Commission, special rapporteurs and working groups on the matter, and State practice. It also addresses Russian and foreign legal scholarship. From a methodological perspective, this study relied on the general scientific (analysis, synthesis, systemic approach) and private legal methods of knowledge (formal-legal, comparative legal studies).
RESEARCH RESULTS. Based on the study, it is argued that an international treaty should be adopted to regulate the activities of PMSCs, which would establish mechanisms to monitor and hold PMSCs and their employees legally accountable.
КОНСУЛЬСКОЕ ПРАВО
INTRODUCTION. The article analyzes the current problems of the consular service. In the practical work of officials of the consular service of the Russian Federation, periodically arise situations in which it is necessary to make decisions taking into account the hierarchy of national legal acts and norms of international law, which are an integral part of the legal system of Russia. The situation complicated by the lack of a normative document that clearly and unambiguously regulates the hierarchy of legal acts that make up this system. The present article, based on the experience of the authors' work abroad, is a comprehensive study for making possible decisions within the framework of the issue under consideration on those non-standard issues that periodically are faced by employees of consular offices.
MATERIALS AND METHODS. This article is based on the analysis of the provisions of article 15 of the Russian Constitution (taking into account the recently introduced amendments to the Constitution), on the decisions of the Constitutional and Supreme courts of Russia, laws of the Russian Federation, in particular, of the Civil code of the Russian Federation and the Federal law «On international treaties of the Russian Federation», and also in comparison of the legal systems of Russia, USA and Norway in the question of the primacy of national or international law, as well on real situations that occurred during one of the author's work in the consular service of the Russian MFA. The research method is based on the General scientific method of cognition.
RESEARCH RESULTS. The article leads to the conclusion that in the question of the primacy of national or international law in the domestic legal system of a state gives its legislation different degrees of freedom to the Supreme state bodies in a flexible approach to the implementation of international legal obligations within the framework of the generally recognized principle of international law «pacta sunt servanda» – «treaties must be observed». Besides, within the framework of Russian national law, there are legally established opportunities to implement the norms of subordinate normative acts in the presence of a law that regulates the same type of relations in a different way.
DISCUSSIONS AND CONCLUSIONS. The article provides a regulatory framework that can be used by Russian foreign offices and the MFA in case of violation by the authorities of the host country of the norms of bilateral and multilateral treaties to which Russia and the country concerned are parties. As a conclusion, it is suggested that a clear understanding of the hierarchy of normative acts in the Russian legal system is necessary for its competent application by officials of Russian foreign offices in solving issues in the field of national legislation, as well as the use of international law by these persons in protecting the rights and interests of the Russian Federation, its legal entities and individuals.
LAW OF THE SEA
INTRODUCTION. Currently, states can apply a whole range of law enforcement measures at sea in order to prevent such unlawful phenomena as piracy, slave trade, drug trafficking, migrant smuggling, etc. However, the problem of the exercise of jurisdiction by states within various maritime areas is the main sticking point during the implementation of these measures. In an attempt to exercise the law enforcement function at sea, the state can't ignore the fact that its ability to create legal norms and ensure their effective implementation depends not only on its will as a sovereign, but also on the restrictions imposed by international law. Therefore, maintaining a balance between limiting the “territorialization” of maritime areas and the need to carry out a law enforcement function logically entails the need to determine the nature and content of the concept of “jurisdiction of the state” within different maritime areas, as well as to identify specific features of this legal category. The present article focuses on this and other related issues.
MATERIALS AND METHODS. Historical and comparative analysis along with dogmatic research approach were used in the research process and the entire research is well grounded in focusing on the norms of international treaty law and customary law. In addition to that this research focuses on the norms of national law governing issues related to the application of law enforcement measurement at the sea. Apart from those given material and methodical inputs, the doctrinal works of the relevant jurists have been used in this research.
RESEARCH RELULTS. The author comes to an alternative conclusion that territorial jurisdiction within the maritime territory is not absolute, which is due, apparently, the principle of freedom of the high seas which have a longer support by the international community. The definition of jurisdiction as extraterritorial is not self-sufficient, since in case of conflict of jurisdictions, additional legal criteria are required to resolve such a conflict. The classification of extraterritorial jurisdiction depending on the principles on which it is based also does not solve the problem, since some principles, such as protective or universal, in turn, require additional criteria in order to become a self-sufficient tool to overcome legal uncertainty. The author notes that the ability to exercise territorial jurisdiction within maritime areas, as a rule, determines the ability to exercise legislative and executive jurisdiction, which are also not absolute. The exercise of extraterritorial legislative or executive jurisdiction at sea is potentially permissible only on the basis of international law to solve a specific function, for example, law enforcement.
DISCUSSION AND CONCLUSION. The main problem of the varieties of jurisdiction proposed by in- ternational legal science is that each of them only supplements each other, describing a possible choice, but not explaining why a particular choice should be preferred in case of conflict. It is obvious that current uncertainty has created some severe impacts upon the institution of law enforcement measures at sea as a result of the absence of standards for enforcement measures that could make a balance to the mechanism. Hence the law enforcer has to be cautious with a number of factors in deciding the implementation of law enforcement measures within the sea.
REVIEW OF JUDICIAL PRACTICE
INTRODUCTION. The article is devoted to the analysis of the position of the Russian Federation in ten investment cases initiated by Ukrainian investors after the events in Crimea in 2014. The article also highlights current trends in the issue of confidentiality of international investment disputes. The authors analyze whether Russian strategy is effective based on the experience of foreign states, and also make assumptions about the enforceability of arbitration awards. Where the tribunals rendered awards on the merits, the authors highlight the problem of recognition and enforcement, and also assess Russia’s the arguments to set aside these awards.
MATERIALS AND METHODS. This study is based on arbitral awards and information from public sources,including official press releases and interviews with Russian representatives in connection with the pending investment disputes. The authors employed the historical method, as well as such general scientific methods as analysis, synthesis, analogy, description, modeling.
RESEARCH RESULTS. The result of the study is the identification and formulation of patterns in investment disputes with respect to investments in Crimea to which Russia as a party of Russia, the identification of typical arguments of the parties and the conclusions of arbitral tribunals on this type of disputes.
DISCUSSION AND CONCLUSIONS. Having analysed the awards rendered against Russia by international investment tribunals, the authors presented an overview of the parties’ arguments that were presented when the arbitration considered the issue of jurisdiction and resolved the dispute on the merits. The authors assessed these arguments in terms of their credibility on the basis of existing in international investment case-law.
ISSN 2619-0893 (Online)