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Moscow Journal of International Law

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No 4 (2009)
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https://doi.org/10.24833/0869-0049-2009-4

ВОПРОСЫ ТЕОРИИ

4-16 368
Abstract

International legal guarantees are forecast by taking into account their current demand as attractive means for states able to secure peaceful regulation of crisis- ridden situations in Afghanistan, Palestine, Cyprus and other unstable regions. From the point of view of securing peaceful usage of nuclear power, in a number of developing countries the IAEA guarantees will arise in the actuality. The success in the usage of these guarantees will depend on such common behavior towards the above- mentioned states which will correspond with the aims and principles of the Organization of United Nations. The truth is also that international guarantees should be filled with a new content which meets the realities of the current period. At the same time they must be applied irrespective of those or other changes a affecting the interests of their subjects. Liabilities on international guarantees should be carried out strictly whatever sorts or forms they are.

INTERNATIONAL SECURITY LAW

17-33 439
Abstract

Kazakhstan’s foreign policy initiative to convene the Conference on Interaction and Confidence-Building Measures in Asia (CICBMA) is a response to the existing need to create a unified regional system of collective security and cooperation. Such a conference is necessary because, unlike other continents, Asia still lacks a properly functioning mechanism of legal control and regulation. The activities of international institutions operating in this part of the globe are mostly sub-regional and closed in their nature. Therefore, it is necessary not only to establish an inter-regional dialogue between these institutions, but also unite them under a single regional organization.

INTERNATIONAL HUMANITARIAN LAW

34-55 490
Abstract

The author analyses Art. 36 (New weapons) of the Additional Protocol I to the Geneva Conventions of 12 August 1949. The term “new weapons” should be considered in the context of currently existing groups of weapons, taking into consideration that the use of some weapons is limited during armed conflicts while the use of others is permitted. In the author’s opinion, the absence of the term “new weapons” definition in the art. 36 produces difficulties and hinders implementation of the article. The author introduces his definition of the term and discloses its contents. Extensive attention is paid to the need of prohibition of space weapons as a type of new weapons.

HUMAN RIGHTS

56-80 1033
Abstract

The article contains analysis devoted to a research on a definition of “International Standards on Human Rights” (ISHR). The concept has been expanded during last decades in public and legal practice. There is a need to define the expression due to the principle of legal certainty for terms applied in law. The research introduces a review of existing academic research. The article includes also the lexical examination of the term and shows the historical development of “a common standard of achievement for all peoples and all nations”. Looking for the most comprehensive definition the author assessed the basic legal doctrines, namely positivism and natural schools of law. The quest allows finding approaches, which help to find main characteristics and functions for the description of the ISHR. The proposed definition though is open for further perfection since the concept is constantly shaping.

81-99 686
Abstract

The article deals with basic principles, features and specific character of the development of human and citizen rights in Israel. Constitutional and legal consolidation of major part of these rights was achieved in the course of “Constitutional revolution”. The religious law which dominates in regulating private status (marriage and divorce) preserves significant influence in the country. In the absence of a written constitution the main guarantor of human and citizen rights is the High Court. The established status of a person in the State of Israel lets consider the country as a lawful democratic state.

INTERNATIONAL PRIVATE LAW

100-118 527
Abstract

This article covers the conflict of laws issues of cross-border transactions with bills of exchange and promissory notes. The author highlights the main groups of the conflict of laws issues arising in connection with the international debt securities transactions and scrutinizes the legislative approaches to their solution in different legal systems. For the purposes of comparison of the main approaches to such regulation the author analyzes the provisions of the Geneva Convention 1930 for the Settlement of Certain Conflict of Laws in Connection with Bills of Exchange and Promissory Notes, UK Bills of Exchange Act 1882, domestic and foreign doctrinal studies. The article places emphasis on the main discrepancies between the regulatory practices in different legal systems concerning the solution to the conflict of laws problems in the highlighted area, as well as provides the extensive comments on their origin.

119-132 401
Abstract

In the article the analysis of the present-day problems of Russian notary stipulated by international process unification of law is given. The author defines the forms of international unification, points out the degree of the influence of the international law on Russian notary legislation and extracts the ways of its improvement.

133-148 550
Abstract

The article dwells on territorial character of intellectual property rights in the present conditions of globalization. The author shows grounds for applying conflict of law rules to intellectual property. A comparative analysis of Russian legal norms (the third and the fourth parts of the Civil Code of the Russian Federation) and law of other states (Belarus, Ukraine) is given. The possibility and expediency of governing of certain intellectual property questions by international law are proved.
The author shows a trend of gradual restriction of intellectual property territoriality by international legal regulation using as examples the most famous international agreements on intellectual property. It is pointed out that conclusion of a new international agreements restricting territorial character of intellectual property is currently implausible. The author believes that rejection of the principle of the intellectual property territoriality is to proceed within national legal regulation and case law.

149-162 358
Abstract

This article presents the French conception of the international commercial law, through the analysis of the manual of the same name widely used in France. Thus, the following number of problems are briefly examined in this article: the subject of the international commercial law, its sources, purposes and “actors” – the 1st chapter; transactions of the international commercial law – the 2nd chapter; dispute settlements (jurisdiction, arbitration) – the 3rd chapter. The conclusion is devoted to the “context-method” teaching recommended by the author to master professional communication.

INTERNATIONAL ECONOMIC LAW

163-182 1441
Abstract

At present time the conception that International Investment Law is a separate subdivision of International Economic Law is generally accepted. Historically formation of international and national regulation of foreign investments continued as two interrelation processes. The regulation of foreign investment activity on two levels based on priority implementation of norms of international treaty foresee of combination international and national regulation. In the opinion of author research doctrinal bases of International Investment Law will be promote improve of investment legislation to mission as far as encourage of foreign investments and protect national market of their possible negative influence.

ЕВРОПЕЙСКОЕ ПРАВО

183-189 551
Abstract

In conditions of financial crisis, a prominent aspect of a safety of the European Union is formulation of new approaches to migration policy and Law. Currently, it is possible to allocate two levels of problems in the field of migratory policy and Law. First, it is the search of the ways of migratory streams regulation mechanisms’ optimization during the extreme rate of unemployment growth. Secondly, the important problem of migratory policy of EU is the formulation of a general strategy in the sphere of integration of migrants into the national environment. Till now, in EU the given question has been solved incompletely. It is necessary to note, that at the present stage the necessity for the EU structures responsible for taking such decisions, to formulate a complex anti-recessionary approach to the problem has become evident.

МЕЖДУНАРОДНОЕ И ВНУТРИГОСУДАРСТВЕННОЕ ПРАВО

190-205 614
Abstract

The most important legal institution concerning Austria’s peaceful relations with other States is its status as a permanently neutral state which was declared unilaterally by Austria in 1955 by adopting the constitutional bill on permanent neutrality. After the accession to the EU Austria confirmed to accept the rights and obligations within the Union and its institutional framework, in particular the principles and the political goals of the EU. Austria’s accession to the EU constituted the most important transfer
of jurisdiction in the history of the Federal Constitution. On this occasion the Austrian legislature passed an amendment to the Federal Constitution which provides for the participation of Austrian organs in the decision-making process of the European Union.
First of all, provisions on the election of Austrian members to the European Parliament were introduced by the amendment into the Constitution. Secondly, the amendment contains a procedure for participation of the Austrian lands and local governments in the decisions of the European Union. Thirdly, the legislative bodies on the central government level (National Council and Federal Council) are also accorded the right to participate in decision-making of the EU. Finally, a special provision confirming Austria’s participation in the Common Foreign and Security Policy of the Union was introduced.

VOICES OF THE YOUNG

206-219 774
Abstract

The intensifying international relations have affected changes, increase, and creation of new kinds of commercial interaction forms by multinational structures. For years, legal science have been seeking legal instruments, regulating international commercial relations. With the undergoing change and complexity of forms, subjects and objects, the international relations are not regulated neither by international law, nor national law. Thus, the problem of searching the new legal mechanisms, sufficient for legal regulation of the international relations, appears.
The American international law doctrine, in the person of Philip C. Jessup, found a theory of “transnational law”. Due to the increasing impact of international economic relations and with the growing role of transnational corporations this theory has evolved. The main conclusion of the article is that the circle of international law subjects should not be expanded arbitrarily. Mainly, it should be noticed in view of the jurists’ attempts to provide legal entities with international legal personality.

220-237 329
Abstract

The European Court of Justice recalled in its decisions in 2001 and 2006 that any citizen or business who suffers harm as a result of a breach of EC antitrust rules (Articles 81 and 82 of the EC Treaty) must be able to claim reparation from the party who caused the damage. This right of victims to compensation is guaranteed by Community law. However, despite the requirement to establish an effective legal framework turning exercising the right to damages into a realistic possibility, to date in practice victims of EC antitrust infringements only rarely obtain reparation of the harm suffered. The article considers the newest tendencies of the EC antitrust legislation and policy, courts decisions in the field of private actions for compensation of damages to the parties suffered from illegal agreements, actions and behavior that falls within the Articles 81 and 82 of the EC Treaty.

BOOKSHELF

238-245 650
Abstract

Review on the “Handbook of International Humanitarian Law” (Ed. D. Fleck) contains the comparative analysis of the first and the second edition of the “Handbook”. It highlights the advantages of this treatise and draws attention to some disputable issues. A positive evaluation is given to the transformation of the concept of the “Handbook” from a commented manual for German military to the “modern universal handbook for the military forces”, which has not only a practical importance, but could also be used in the research on different problems of International Humanitarian Law and in the study process.

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