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Moscow Journal of International Law

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No 4 (2011)
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https://doi.org/10.24833/0869-0049-2011-4

ВОПРОСЫ ТЕОРИИ

4-18 404
Abstract

Discussed in the article are actual theoretical and practical questions of the international governing concept. Shown is the connection of the concept with conflict and crisis situations in different regions and states, the peculiarities of the use of external force in such situations, the role of United Nations Organization and other international organizations in this question.

INTERNATIONAL HUMANITARIAN LAW

19-36 692
Abstract

Among the main advantages of the Guidance the author distinguishes a classification of persons in non-international armed conflicts, use of the purpose as a defining feature of the notion of “hostilities”, inclusion of unlawful attacks against the civilian purposes in this notion, application of the principle of military necessity as one of the restrictions of the use of force. Several issues of the Guidance are subjected to criticism: a limited scope of application of the minimum threshold requirement to the harm, a dogmatic position on absolute impossibility of qualification of attacks on the persons under authority of a party to the conflict as “hostilities”, a requirement of existence of a link between a civilian and a party to the conflict, elusion from qualification of general planning and leadership. Finally, the author comes to the conclusion that the process of clarification of the notion “direct participation in hostilities” should be continued.

МЕЖДУНАРОДНОЕ ЭКОЛОГИЧЕСКОЕ ПРАВО

37-51 401
Abstract

The article analyzes “Debt-for-Nature Swaps” concluded by the states of North America, Latin America, Europe, Africa and Southeast Asia. The characteristic features of three types of “Debt-for-Nature Swaps” ‒ commercial or three-party, bilateral and multilateral ‒ are examined. The legal content of the principle of permanent sovereignty of states over their natural resources is explained and it is concluded that “Debt-for-Nature Swaps”, not only do not contradict this principle, but on the contrary, contribute to its implementation in practice. The ways, suggested by the authors, how further improve “Debt-for-Nature Swaps” include, inter alia, the spread of their application to the spheres of sanitation, water supply, infrastructure development, the mechanisms of combating global climate change.

52-62 393
Abstract

Climate change has been recognized as a major challenge for the humankind to cope with in the 21st century. An increasing threat of unbalancing global climate system poses questions regarding elaboration of urgent measures for handling the new global situation and securing humankind and the environment from the adverse consequences of these developments. In the circumstances, a mechanism for the implementation of the Kyoto Protocol and the UN Framework convention on climate change is being created.

INTERNATIONAL ECONOMIC LAW

63-76 401
Abstract

The article is devoted to the questions of regulating relations connected with the use of United Economic Space by means of national and international law. Special attention is given to problems of unification and codification of national legislation in the process of implementation of corresponding international treaties. Investigated are the peculiarities of international law regulation of usage of special kinds of United Economic Space (information, energetic ones), the activity of Custom Union, pre-boarder cooperation, competition.

МЕЖДУНАРОДНО-ПРАВОВЫЕ ОСНОВЫ БОРЬБЫ С ПРЕСТУПНОСТЬЮ

77-99 551
Abstract

The author explores legal prospects of a civil complaint filed in January 2011 in the U.S. district court for the District of Columbia against the incumbent President of Sri-Lanka. Plaintiffs accuse Percy Mahendra Rajapaksa of sanctioning extrajudicial killings of their relatives during the civil war with Tamil separatists. In this connection, the author examines current international law and legal writings relating to the personal immunities of incumbent heads of state from foreign criminal and civil jurisdiction, as well as practice of U.S. courts in this field. She describes the history and contents of a U.S. common-law doctrine of head-of-state immunity. Special attention is given to the question whether senior State officials preserve their immunities ratione personae when they commit such serious international crimes, as torture and extrajudicial killings.

МЕЖДУНАРОДНОЕ И ВНУТРИГОСУДАРСТВЕННОЕ ПРАВО

100-113 406
Abstract

In the second part of this article analyzes the content of the question of whether the entry of Austria in the North Atlantic Treaty Organization. This issue is currently being widely discussed not only in formal (political) circles of the country, but is often the subject of scientific dispute between representatives of the various research schools and directions. In most cases, expressed opinions suggest mutually exclusive, not complementary and are separated accordingly to the positions for and against. However, there are some scientists and developed «balanced» approaches to more responsive and arguments of various “opposing” parties under the necessity of forming a unified, consensus position. However, the obvious is the fact that the question of possible membership in NATO in Austria as in the case of its involvement in the military structures of the EU should be carried out by the State with indispensable in view of its international rights and obligations arising from the status of permanent neutrality.

114-127 394
Abstract

The article is dedicated to the institution of a Government. It touches the issue of functions and indications of executive power as well as unique models of a Government in different countries. A Government may be a deliberative body under individual or collective Head of State (monarch, president, Revolutionary Council, Military junta). During military regime even structurally a Government may not be singled out from a Military Council (Security Council etc.). The article also tackles the issue of a Government Apparatus, its membership, organizational and legal forms of its functioning.

INTERNATIONAL PRIVATE LAW

128-141 780
Abstract

The article is dedicated to the principle of the territoriality of IP rights of Intellectual property law. The article pays special attention to the problem of conflict of laws and Intellectual Property Rights and analyses some of international conventions.

142-155 443
Abstract

In the judgment of the Federal Court of Justice of Federal Republic of Germany on 29 March 2011 published hereunder is presented its attitude concerning jurisdiction over the disputes from the publications in the Internet. The Court held that there was no jurisdiction over the dispute between Russian citizens in spite of the plaintiff’s domicile in Federal Republic of Germany. The Court held that there was no sufficient connection between the material legal relation and Federal Republic of Germany. In the commentary to the judgement is presented the evolution of this approach and indicates the debatableness to recognise such a connection the plaintiff’s domicile in Federal Republic of Germany.

ИЗБРАННЫЕ ДЕЛА КОЛЛЕГИИ АДВОКАТОВ “МОНАСТЫРСКИЙ ЗЮБА СТЕПАНОВ И ПАРТНЁРЫ”

VOICES OF THE YOUNG

166-175 404
Abstract

Liberalisation of the EU aviation market laid the foundation for the present-day legal regulation of air services in the EU. Regulation No. 1008/2008 consolidated provisions on EU air carrier licensing, their access to internal air routes of the European Union and fares for air services to increase the efficiency and consistency of applicable EU law, in an attempt to raise the EU internal aviation market to a qualitatively new level of development. With a view to better grasp the achievements of the EU in this field, this article studies the modernisation of air services regulation through the comparative analysis of the main rules of the new Regulation and earlier acts, practical and scientific issues arising in the course of their application on the regional and global levels.

176-188 662
Abstract

The article deals with the system of sources of Islamic law in its historical development and its possibility of applying acts of the international law in Muslim countries. Special attention is paid to the Islamic legal doctrine and its influence on the formation of international legal regulation of social relations in the Islamic countries. Islam can be treated as universal outlook, containing its own concepts of culture, politics and rights, including an original perspective on the construction of legal system different from Europe, whose experience could be useful for the development of world-wide legal system. A key feature that distinguishes the Islamic law from other legal systems is the reliance on the moral authority of the Muslim religion and the basis of its legitimacy are not public service, but divine will. The main interest in a practical sense provides the final part of the article concerning the transformation of Islamic law in national legal systems.

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