Preview

Moscow Journal of International Law

Advanced search
No 1 (2021)
View or download the full issue PDF (Russian)
https://doi.org/10.24833/0869-0049-2021-1

ISSUES OF THEORY OF INTERNATIONAL LAW

6-27 4478
Abstract

INTRODUCTION. This publication follows up the well-aimed discussion recently initiated by the journal in 2017-2019 [Abashidze, 2017; Nefedov, 2019] and to a certain extent continued in 2020 [Vylegzhanin, Potier, Torkunova, 2020], regarding one of the "pillar problems" for the legal theory pertaining to international law, which concerns its ‘principles’.
The subject-matter of the study is determined by a number of circumstances that are atypical for any field of any science, when there is a variety of terms differed not only in name, but also in content, which relate to the cornerstones of relevant field or section of a particular branch of knowledge. As far as the international law science, this situation has been due to the availability of a wide range of different designations concerning its principles, and resulting the need to thoroughly peruse the same. Due to the above, genesis, historical evolution, nature, functional destination and role of the principles in the theory and practice of international law, including its basic principles as its normative grounds, which belong to the entire system of international law, should naturally be under thorough consideration. They seem to constitute the most sensibly weak point in the modern theory of international law due to obviously "multicolored" conceptual and terminological spectrum. It is important that the list of terms forwarded in relation to the principles is growing from day by day, and new ones are being added to the designations as "set-forth" to date. Thus, the afore-referred list encompassing "basic principles" and "generally recognized principles and norms of international law", "principles of general international law", "general principles of co-operation" (Article 11, para 1, of the UN Charter) in a particular field, as well as "general principles of law", "general principles of law recognized by civilized nations", etc., has recently been supplemented with "general legal principles", "basis principles" and "general principles of international law".
The impressive range of the above concepts that are somehow found in the scholars’ writings and practice of international law frequently implicates the contradictory interpretations and unavoidable collisions in the course of conceiving the sense of and applying the norms, which accordingly require reducing ambiguities and therefore ensuring better regulation. To achieve the same, the only one thing may be effective – that is by way of revealing the fundamental properties of respective phenomena.
Increase of negative assessment of current legal regulation of international relationships happening not only in literature, which the occurrences are quite frequent, evidences that the topics related to the principles of international law, are, firstly, not only fundamental issues to qualify the substantive component of the theory of international law, since it is directly n with the core matters of legal science that studies the captured system of law, but also stand as extremely acute point because of the continuous attacks on the effectiveness of international law as such (to the extent of complete denial of the same even in public statements made by official spokesmen of States), – secondly. Resultant from this, the growing skepticism about the effectiveness of principles gives raise mistrust in international law in whole. Therefore, the major steps required towards achieving the most important goal in the matter of raising high the credibility of the international law shall be deemed as follow: to conceive the essence of the concept of "principle"; identify and differentiate the phenomena corresponding to individual positions in the afore-referred list; construe the typology thereof, as well as reveal the relationship between some of them. A number of the said aspects are subject to be examined herein, while the rest of them should be given specifically a place within the scope of another publication.

MATERIALS AND METHODS. The analysis undertaken in the article is based on normative and doctrinal materials that reflect the positive international law and law enforcement acts, other documents, including reports and research presentations of the UN International Law Commission, judicial decisions or advisory opinions of the International Court of Justice and other international judicial institutions, acts of international organizations, as well as the teachings of the most highly qualified publicists and practitioners in the field of international law and its history, which relate to the topic of this publication. The research enjoys both general and specific principles and methods of analysis: dialectical materialism, structural and system approaches, formal logics, deduction and induction, comparative law, historical and retrospective approach. The latter one is particularly fruitful for study of genesis and essence of the concept "principle of law", legal nature of principles in international law.

RESEARCH RESULTS. The essay purports to reveal the essence of various designations construed on the basis of the element "principles", or similar phenomena in the aspect of international law. In the course of research
aiming the system-forming role of the basic principles of the IL and the comparative analysis thereof with jus cogens ("peremptory norms of general international law»,) the findings are that there is no reason for wide international practice to ignore the term and the concept of "basic principles" in cases when approaching to the concept of "peremptory norms of general international law" (jus cogens), since they do not substantially differ in a number of parameters. In both categories, sometimes it seems to appear a discrepancy or incomplete compliance with the criterion of "peremptory norms of general international law" (e.g. partial "opinio juris cogentis" / "non-derogability"), especially from formal-dogmatic stand, viz. with no comprehensive view on full legal scope of a rule of law. The totality of the theses put forward to solve the listed and other related problems on the basis of the approach laid down in the study from a theoretical point of view, as a whole, seems to form a new vector in legal theory, not only domestic, but also international, due to the lack of full-fledged, detailed research on the subject with such a discourse on a global scale.

DISCUSSION AND CONCLUSIONS. "Principles of international law", including the initial point, i.e. the concept of "basic principles", as well as a number of other notions connected with them, are subject to examination in the article, both as a phenomenon of positive international law and as a category of legal science (that one of international law). For Russian science of international law, the concept of "principles" / "basic principles of international law", securing the integrity and entirety of the IL system, performs the role of one of its major categories. The differences between "concept" and "category" in the tools of the theory of international law are determined by the postulates substantiated by philosophy. At the same time, in part of concepts and terminology, the international legal theory is characterized by a certain gap in the positions forwarded by domestic and Western jurisprudence. Conceptual approaches to the "principles" ("basic principles") and the resulting discrepancies in opinion quite radically differ, whereas to the term "principles" it is often attributed rather non-normative, ideological or teleological significance, while the functions of the norms having hierarchically superiority over other rules in international law, are allocated to the category of "peremptory norms of general international law (jus cogens)".

LAW AND POLITICS

28-45 1202
Abstract

INTRODUCTION. One of the conditions for the effectiveness of the foreign policy of any state, including its international legal policy, is its scientific character, conceptual validity, reliance on understanding both the objective laws of world development and an accurate assessment of the place and role of the respective state in this process. The creation of such a trend should be based on the synthesis of natural, social, economic, political and cultural factors that characterize the state of the country, an assessment of its participation in the international division of labor, joint projects and development programs, its role in ensuring sustainable development and globalization processes.

MATERIALS AND METHODS. The article analyzes the doctrines and tendencies of the foreign policy of the Russian Federation, international treaties of Russia, statements by the leaders of states, as well as the political practice of interstate relations. During the research general scientific methods were used: system analysis, historical, formal legal, comparative, etc. In addition to the materials of the doctrine of international law, scientific categories and constructions of other social sciences (historiosophy, political science, sociology, theory and history of state and law) were used.

RESEARCH RESULTS. The study made it possible to come to the conclusion that one of the main concepts of modern international politics is the provisions of the classical Eurasian doctrine. The geopolitical concept of Russia Eurasia is designed to ensure a balance between the western and eastern vectors of the country's foreign policy, predetermines its entire political history, determines the principles and standards of modern life. Of great importance for the foreign policy doctrine of Russia is the Eurasian postulate about the "local development" of our country, the peculiarities of its culture, the existence of a civilizational community. A civilizational approach to assessing the potential of Russia Eurasia should underlie the determination of the scale and nature of Russia's foreign policy. In terms of its historical scale, our country cannot be regarded as a "regional power" even despite its problems and difficulties of the current stage of development. The Eurasian doctrine, the main postulates of which are reflected in the foreign policy concept of the Russian Federation, makes it possible to find the right approaches to solving modern problems of world development, in particular, such challenges for our country as globalization, modernization, the ideology of nationalism, etc.

DISCUSSION AND CONCLUSIONS. The discussion of the conceptual base of the foreign policy of theRussian Federation in the doctrine is fragmentary, often carried out in isolation from the search for the national idea of Russia. The difference in approaches to solving this problem significantly complicates the development of an official doctrine of the country's foreign policy and does not make possible to clearly define its national interests. It is obvious that the discussion of these problems should be carried out within the framework of a single cognitive process, the national idea should, on the one hand, become the basic category of the concept of Russia's foreign policy, and on the other, the final result of its creative development. The practical implementation of the Eurasian project by Russia will require making serious adjustments to the country's diplomacy, ensuring its multi-directional, western and eastern balance in the diplomatic, political, humanitarian, legal and other scopes of life.

46-56 1269
Abstract

INTRODUCTION. The article examines problematic issues of Russia’s participation in the European Convention for the Protection of Human Rights and Fundamental Freedoms. According to the authors, the form of Russia’s participation in the Convention, associated with membership in the council of Europe, is unacceptable for its sovereignty. When ratifying the Convention, the degree of objectivity and impartiality of the ECHR in relation to the Russian Federation and the properties of the legal norms of the Convention were not taken into account.

MATERIALS AND METHODS. The materials for the research are international agreements, resolutions of international organizations, decisions of the ECHR and the Constitutional Court of the Russian Federa- tion, as well as doctrinal sources on the topic. The methodological basis of the article was formed by general scientific and special research methods. The article critically analyzes the arguments in favor of Russia’s participation in the European Convention and examines the reasons why the ECHR can hardly be called an objective court for a country that is not a member of the EU.

RESEARCH RESULTS. The authors believe that the unenforceability of ECHR judgements is only part of the problem of enforcing binding decisions of international organizations. According to the authors, it is necessary to determine the fundamental foundations of Russia’s participation in international organizations that can make decisions legally binding for our country, and to limit their circle to the participants of the integration association with Russia, organizations of strategic partners, as well as organizations in which Russia can influence the adoption decisions. The principles of Russia’s participation in international organizations that make legally binding decisions should be included in the Federal Law “On International Treaties of the Russian Federation”.

DISCUSSION AND CONCLUSIONS. The subordination of Russia to the jurisdiction of an interstate human rights body must meet a number of conditions that the ECHR does not meet. Because of this, problems arise with the implementation by Russia of the decisions of the ECHR. The authors share the point of view that the ECHR is an effective mechanism for the protection of rights and freedoms, but only for a group of states – European integration participants bound by common interests, values, and coordinated foreign and domestic policies. Therefore Russia needs to return to the rules of cooperation in the field of human rights with European states, set out in the Helsinki Final Act on Security and Cooperation in Europe.

57-69 1012
Abstract

INTRODUCTION. Over the past decade, the International Court of Justice has been requested to adjudicate on claims under 1965 Convention against Racial Discrimination (CERD). While adjudication under treaty compromissory clauses is not uncommon, the Court’s jurisdiction under CERD is subject to conditions that are not replicated under other multilateral treaties. Therefore, the Court’s use of compromissory clause under CERD raises complex issues of treaty interpretation as well as of the Court’s compliance with consensually established limits of its own authority.

MATERIALS AND METHODS. The article proceeds to examine the Court’s application of jurisdictional clause under Article 22 CERD in the case of Ukraine v Russia from the positivist legal perspective. It assesses the Court’s use of treaty interpretation methods relating to the text and context of Article 22, as well as CERD’s object and purpose. After assessing the Court’s analysis of its jurisdiction, the article proceeds to examine the Court’s use of the rule on exhaustion of local remedies which is one the condition of the admissibility of claims in cases relating to treatment of individual and their groups.

RESEARCH RESULTS. The article demonstrates that the Court’s interpretation of Article 22 CERD does not accurately identify the meaning of this provision, especially the meaning of the word “or” contained in it. As a consequence, the Court ends up asserting jurisdiction in the case before the Committee established under CERD has dealt with it. Moreover, the Court concludes that the victims of alleged racial discrimination do not have to exhaust local remedies. This conclusion places the Court at odds with previous jurisprudence of all major international tribunals.

DISCUSSION AND CONCLUSIONS. It becomes clear that the Court has asserted jurisdiction over the case even though CERD provisions did not confer that jurisdiction to it, and that local remedies were not exhausted anyway. As this face forms one rather small part of overall Russia-Ukraine relations, a temptation could obviously arise to justify the Court’s flawed legal reasoning by considerations of ethics, politics, ideology or justice. However, positivist legal reasoning requires maintaining that the Court operates on the basis of State consent, and any neglect for that fact risks negative consequences for the overall efficiency of international adjudication.

INTERNATIONAL HUMANITARIAN LAW

70-80 1798
Abstract

INTRODUCTION. The article analyses the problem of cyber espionage in the context of armed conflict in cyberspace. The relevance of this research, as part of the problem of international humanitarian law applying in cyberspace, is confirmed by the rapid development of cyber technologies that can be used during armed conflict, as well as the availability of the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations.

MATERIALS AND METHODS. The main sources of this research are the provisions of the Tallinn Manual 2.0 on the International Law Applicable to Cyber Operations, the rules of Additional Protocol I of June 08, 1977 to the Geneva Convention of August 12, 1949, the rules of the Hague Regulations on the Laws and Customs of War on Land of 1907, and the rules of custom- ary international humanitarian law. The methodology consists of the principles used in legal research, as well as general scientific and special methods of legal research (system and formal legal methods).

RESEARCH RESULTS. The provisions of the Tallinn Manual on cyber espionage were examined for compliance with the relevant provisions of Additional Protocol I of June 08, 1977 to the Geneva Convention of August 12, 1949, the Hague Regulations on the Laws and Customs of War on Land of 1907, and the rules of customary international humanitarian law, as well as the problems that may arise in the process of possible practical application of this provision of the Tallinn Manual.

DISCUSSION AND CONCLUSIONS. It is noted that the provisions of the Tallinn Manual 2.0 on cyber espionage are based on the relevant rules of international law. In fact, the relevant provision of the Tallinn Manual is completely copied from the relevant rules of IHL. However, based on the results of this research, the author comes to the conclusion that such blind copying does not take into account the specifics of cyberspace and leads to the following problems in the possible practical application of this provision of the Tallinn Manual: firstly, due to the anonymity of users, it will be difficult to distinguish between a cyber intelligence officer and a cyber spy in practice. Secondly, due to the difficulties in establishing clear state borders in cyberspace, including due to the use of blockchain and VPN technologies, in practice it is impossible to reliably establish whether secret information was collected on the territory of the enemy, which, in turn, leads to difficulties in qualifying such an act as cyber espionage. Finally, in the context of modern armed conflicts, espionage has ceased to be a phenomenon exclusively of international armed conflicts, and therefore it is likely that cyber espionage can be carried out not only in the context of an international armed conflict, but also in the context of a non-international armed conflict. Based on the results of this research, suggestions were made to develop state practice on this issue. It is desirable that States raise the discussion of the above issues at the UN General Assembly, which would help to identify the main trends in the development of such practices. Only And only after the practice of States on this issue becomes more obvious, the question of developing an appropriate international treaty, preferably within the UN, can be raised.

LAW OF THE SEA

81-88 1302
Abstract

INTRODUCTION. The development of public relations in the field of international trade transportation presupposes new conditions for their safety. This work represents a failure of an attempt to conduct such a study and a comprehensive understanding of the problems existing in this area, as well as the search for ways to solve them by international legal mechanisms. In parallel, certain organizational and legal measures were proposed, and the problems of certain aspects of merchant shipping were also raised.

MATERIALS AND METHODS. For the preparation of this work, the normative legal acts, both domestic and international, were considered, the positions of scientists – representatives of different states. A comparison of legal norms and practice of their application was carried out on the basis of available information materials. Within the framework of this work, methods of analysis, comparative legal method, deduction were also used. On this basis, the modeling of ways of possible optimization of the activities of subjects of international law, specializing in security issues, was carried out.

RESEARCH RESULTS. In essence, the content of the article is the main part devoted to the problems of ensuring the safety of maritime transportation, introductory and concluding parts. The latter reflects the main conclusion devoted to the formulation of the question of the possibility of combining the efforts of various actors to ensure the integrated safety of merchant shipping, which can be combined in a single international legal document. At the same time, it is not at all necessary to place special emphasis on mandatory law enforcement and other punitive measures. Economic and reputational mechanisms are quite applicable, stimulating the activities of states to create all the necessary conditions for safe navigation in the relevant waters.

DISCUSSION AND CONCLUSIONS. The application of this proposal in practice can potentially have an organizational and legal impact on the policies of various states and individual subjects of commercial activity in terms of ensuring maximum protection of the widest range of subjects of sea trade.

INTERNATIONAL AND NATIONAL LAW

89-102 1390
Abstract

INTRODUCTION. The article, using the example of the Republic of Finland, analyzes the activities of the European Union (hereinafter referred to as the EU) to improve the legal regulation of countering extremism. The influence of the EU on the tackling against extremism and radicalism in the Republic of Finland is examined. The role of the EU in countering global threats, the position of Finland in relation to international co- operation in countering extremism and radicalism is assessed. The methods used in Finland to counter violent extremism are being studied.

MATERIALS AND METHODS. The article examines the conceptual documents of the UN, EU and Finland; Report of the Secretary-General of the United Nations, an action plan to prevent violent extremism, Commission Staff Working Paper; Comprehensive assessment of the EU security policy; Message from the Commission to the European Parliament, European Council Ninth report on progress towards an effective and genuine Security Union; Finland's response to OHCHR's request for information on how the protection and promotion of human rights contribute to preventing and combating violent extremism; Finland's Chairmanship Program for the Sustainable Europe Sustainable Future program; Decision of the Commission on the creation of the Expert Group of the HighLevel Commission on Radicalization, Report of the Council of Europe Committee on Counter-Terrorism, Anti-Terrorism Profiles Finland, Report of the Government of Finland on human rights for 2014; decisions of the Expert Group of the High-Level Commission on Radicalization; Human Rights Council materials.

RESEARCH RESULTS. The author puts forward the thesis that the measures used to counter violent extremism depend on the needs of Member States and require the development of various approaches, depending on specific circumstances. In the addition, there is a common interest in EU member states in further expanding the exchange of experience and close cooperation between various national actors at the pan-European and international levels to counter extremism and radicalism. These measures require the development of new regulatory measures, including international ones. The author believes it is possible and interesting, using the example of the Republic of Finland, to study the level of interaction and cooperation between the Member States and the European Union in the field of im- proving the legal regulation of countering extremism, as well as the measures used in Finland to prevent and combat violent extremism.

DISCUSSION AND CONCLUSIONS. In EU Member States, the European Union plays a key role in shaping international cooperation, which includes strengthening the existing governance system and, when necessary, reforming the existing system for preventing and countering violent extremism, subject to the fundamental principles of the United Nations. The Republic of Finland fully supports the efforts of the international community to prevent and counter extremism, through the development of international anti-extremism instruments to help states collectively combat this threat. The educational system of Finland can successfully form the fundamental foundations for countering violent extremism.



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


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