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Moscow Journal of International Law

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No 2 (2009)
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https://doi.org/10.24833/0869-0049-2009-2

ВОПРОСЫ ТЕОРИИ

5-21 520
Abstract

Development of international-legal guarantees in the 19-20th centuries is connected with the problem of observance of a significant number of international contracts. A number of states that made part of those contracts demonstrated negative attitude toward obligations arising from them. Gradually, some obsolete guarantees have been replaced by the guarantee of the states, occupation of territories, the mortgage. Guarantees became deeper in its content; the subjects of guarantees agree that a voluntary agreement of the parties should be a basis of guarantee obligations, while a state can act as a guarantor of the contract, not being its initial participant. For the considered period the number of subjects of guarantees was extended and currently includes international organizations. The legislation of the states and realization of a principle pacta sunt servanda play important role in maintenance of the international-legal guarantees. Codification of norms of international law, their registration and publication contributed to realization of guarantees.

HUMAN RIGHTS

22-43 743
Abstract

In the second part of the article its authors continue their research in the field of International Law of Protection and Promotion of Human Rights. They analyze the mechanisms of control over execution of human rights within UNESCO and ILO. Furthermore a concise overview of conventional control bodies is given (Human Rights Committee, Committee on Economic, Social and Cultural Rights, Committee on the Rights of the Child etc.). The article describes international mechanisms for protection of human rights on the regional level. It also covers new trends and developments in the field of International Human Rights Law, e.g. establishment of new protection mechanisms and procedures (in particular Human Rights Council), emergence of new human rights, development of the concept of indigenous peoples’ rights, reform of UN human rights protection mechanism, extension of international courts’ competence, humanitarian intervention. The article also concerns situation with human rights in Russia.

INTERNATIONAL HUMANITARIAN LAW

44-62 964
Abstract

The article analyzes the international legal basis of limitations and prohibition of methods of prosecution of war. The modern sources of international law and the doctrine of international humanitarian law have not introduced a definition of the term “methods of prosecution of war” and the “methods” and “weapons of war” are not distinguished, which complicates qualification of actions of the belligerent states in case of illegal use of force and weapons. The author believes that the methods of prosecution of war are distinguished by a number of features and introduces their classification according to the justification criteria, objects of attack, and the territorial area of hostilities.

63-75 1004
Abstract

The article deals with major international legal regimes that are used by the warring sides during an armed conflict. International legal regime is an international law determined set of rules regulating the activities of the states, their government institutions and officials, as well as the order of exercising their rights and duties in the context of securing and maintaining a state sovereignty, defence, national security and implementation of international commitments. The common target and main designation of their international legal regimes are mostly aimed at setting up legal and managerial barriers that would hamper and eliminate violation of legal establishments.
The author gives special survey to the research of such international legal regimes as military occupation, war imprisonment, internment, medical staff activities, and protection of the civilians.

INTERNATIONAL SECURITY LAW

76-89 655
Abstract

Twenty years after the end of the Cold War there is still no reliable, comprehensive and integrated security environment throughout the OSCE area. The most significant and negative reason for this situation is the enlargement of NATO. Due to this process the CFE Treaty is no more relevant to reality. In order to restore its role in arms control regime in Europe the Agreement on Adaptation of the Treaty should be ratified and domination of one group of states should be eliminated.

RESPONSIBILITY IN INTERNATIONAL LAW

90-100 530
Abstract

International law has always recognized that its basic principle of territorial integrity cannot completely safeguard a State from physical damage originating outside of its borders. The principal response of international law has been to impose liability on a State guilty of causing damage and to accord adequate reparation to the injured State. For these purposes it is necessary to define transboundary damage in international law.

INTERNATIONAL CRIMINAL LAW

101-118 405
Abstract

The article discusses the problem of ethnical nationalism, also known as irredentism, as a flagrant problem that requires urgent and concerted actions of the world community. The article is subdivided into the introduction and four parts. The first part focuses on the definition of ethnical nationalism as it is understood by leading scientists in this field. The second part analyzes the role that the League of Nations played as the main “peacekeeper” and those mistakes it made. In the third part of the article irredentism is seen in the framework of the national legislation of some countries and international law. The fourth part gives the survey of latest and most notable world ethnical conflicts and the role the UN and the ICJ has played to resolve them. The article is ended with conclusions and recommendations for future improvement of the UN dispute settlement mechanism.

PAGES OF HISTORY

119-135 1025
Abstract

The article discusses the aggressive essence of the Munich agreement of 1938 between the Nazi Germany, France, the fascist Italy and Great Britain, which allowed Hitler to divide (separate) Czech Republic and Slovakia and permitted secession of the Sudetskuju province. The recently declassified information by the Foreign Intelligence service of the Russian Federation tests about Poland’s connection to the Munich agreement. The author argues the invalid nature of the agreement. In the article also dwells on the contemporary European diplomacy that did not made adequate conclusions from the Munich agreement and supported aggressive actions of the USA against Yugoslavia (1999). Equally, placing American elements of the defense against missiles to the territory of Czech Republic and Poland create potential threats to European security.

136-145 931
Abstract

The article is devoted to the 40th anniversary of the Vienna Convention on International treaties. The author follows closely the milestones in the process of working out the Convention and shows how it effects the codification of the Law of International Treaties. He describes the work of the UN Commission of International Law over such topics as “Reservations to International Treaties”, “The effect of military conflicts on International Treaties”, “Treaties through the prism of times”.

146-168 913
Abstract

In 2005 our northern neighbor Norway celebrated the 100 years anniversary of the state independence. From 1814 up till 1905 Norway was in union (unio realis) with Sweden and formed with this state a single (but compounded) subject of international law. The struggle for independence was determined by the growth of national identity of Norwegian people and as a matter of fact by the difficulties and special traits of the Union. The Union failed of weak legal system and of weak governmental machine. In the article the author analyses the routes, causes and forms in which the process of dissolution happened.

ЭКОЛОГИЧЕСКОЕ ПРАВО

169-185 413
Abstract

An overwhelming international legal act on the status of the Caspian is developed now by the Caspian States. One of the provisions already agreed upon provides for the responsibility of these States for conservation of all the values of the sea for the present and future generations. Main approaches for protection of the sea are formulated in the Frame Convention on the protection of the Caspian environment, developed by States, mostly commercially interested in exploitation of the oil and gas resources of the Caspian Sea. However, it is the oil and gas activity that makes the gravest negative impact on the environment in general, as well as on the sea bottom itself, provoking intensification of the tectonics. This is the factor that makes the adverse influence on the oil and gas facilities increasing the geoecological risks. Integrated management of Caspian resources, taking into consideration all geo and ecological particularities of the region, seems a perspective field of cooperation of the Caspian States.

ВОПРОСЫ ТЕРРИТОРИИ

186-195 499
Abstract

The existence of International water law as fully developed branch of International law raises doubts in lawyers. In this regard the codification of customary rules in this area and the adoption of the UN Convention in 1997 is a very important step towards its recognition. So it might be useful to analyze development of these norms and factors affected such development.

МЕЖДУНАРОДНОЕ И КОНСТИТУЦИОННОЕ ПРАВО

196-211 424
Abstract

After the Second World War, Austria, much like Germany, was divided into a British, a French, a Soviet and a U.S. Zone and governed by the Allied Commission for Austria. Largely owing to Karl Renner’s action a Provisional Government was set up on April, 27 1945. The Austrian Government was recognized and tolerated by the Four Powers. On the 15th of May 1955 Austria regained full independence by concluding the Austrian State Treaty with the Four Occupying Powers. On the 26th of October 1955 Austria was declared “permanently neutral” by an act of Parliament, which remains to this day.
The political system of the Second Republic came to be characterized by the system of Proporz, meaning that most posts of political importance were split evenly between members of the Social Democrats and the People’s Party. The Proporz and consensus systems largely held up to 1983. The most significant feature of the constitutional principles of Austria since 1955 is that the “permanent neutrality” forms part of the Austrian constitution. In 1995 the country became a member of the European Union and retained its constitutional neutrality.

ЕВРОПЕЙСКОЕ ПРАВО

212-227 473
Abstract

The article examines the notion “Area of Freedom Security and Justice” (the “FSJ”), the history of its evolution in the law of the European Union, it investigates the subject matter of this legal institute.
In particular, the author notes, that the difficulty in comprehension and portraying of the FSJ is due to the fact that historically many of its significant trends came into existence before the actual definition and notion of the FSJ were formulated (the author here refers in the first place to the “third pillar” of the EU – cooperation in the field of justice and home affairs). Secondly, certain elements of the FSJ evolved beyond the scope of the European law and were integrated into the European law only at a later stage. The most striking example here is the Schengen Agreements. Thirdly, the FSJ provisions are to be found in many articles of the treaties and protocols thereto, which makes the research of the FSJ notion even more difficult.
The article examines many significant regulatory acts and measures undertaken by the EU, the competences of the EU member states and institutions, which together give an insight to the creation of the FSJ as that of an aim to be reached by the European Union.

228-243 375
Abstract

Partial agreements is one of the most dynamically developing and promising modern forms of cooperation of the states in the framework of the Council of Europe, that is actively used by the states for harmonization of national legislation and law-enforcement practice, as well as for joint solution of such urgent problems as struggle with drug abuse, corrupt practices, natural disasters and some others. Partial agreements are not international treaties; they represent a unique form of activities of the Council of Europe. In many ways, these activities are similar to those carried out in the framework of the programs of the organization. Partnership based on partial agreements of the Council of Europe is effective and multidimensional; it has low level of bureaucratization and high level of flexibility. Russian Federation participates in work of six out of fourteen bodies created based on partial agreements. Among them are such as the Venice Commission, the GRECO group, and the Pompidou group.

VOICES OF THE YOUNG

244-262 496
Abstract

The modern system of the Convention for the Protection of Human Rights and Fundamental Freedoms has united 47 States: from Azerbaijan to Switzerland, from San Marino to Russia. These countries have remarkably different historical and cultural backgrounds as well legal systems.
According to the Doctrine when there is a conflict of interests between the society and a personal freedom it is up to the state to determine which of them shall have the priority. However, this freedom is subject to international control exercised by the Court. Despite being widely used by the Court the Doctrine is often criticized for undermining the consistency of the Convention. The present article analyses the arguments pro and con the use of the Doctrine. Concluding for its appropriateness the article also advocates that the Doctrine provides the flexibility that the Convention needs to be able to unify a great diversity of member states.

263-282 809
Abstract

Over time, the range of issues within the competence of consular institutions has been steadily expanding, and their functions have increasingly become more and more comprehensive. Nowadays, consular institutions are designed to facilitate development not only of economic and business but also scientific, technical, cultural, and in some instances political ties between states. Consular relations are a type of international relations which are primarily established to protect states, the rights and legitimate interests of their citizens and legal entities that happen to be or act in the territory of other countries. Recently, in the course of consular treaty practice, international legal principles have been formed to regulate establishment and performance of consular relations and functions. They can be divided into two groups: 1) general principles of international law and 2) branch (specialized) principles of consular law.

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