HUMAN RIGHTS
The Constitution of the Russian Federation of 1993 not only provided the right for and guarantee of judicial protection of the rights and freedoms but also indicated that mentioned freedoms can be protected in international judicial bodies guarding human rights if several conditions are met.
In the article provisions of the Russian Constitution, European Convention on human rights, the practice of the Russian Constitutional Court and of the European Court of human rights are analyzed. In the analysis the author dwells on different aspects of the protection of human rights and judicial proceedings on the basis of the aforementioned items. Such notions as just judicial proceedings and the principle of presumption of innocence are being emphasized.
The author concludes that national courts should pay more attention and look more closely at the practice of the European Court of human rights as numerous judges’ mistakes, which this Court has to correct are, first of all, breaches of the national laws and only after that they are a contradiction to the practice of the European Court of human rights.
The defense of personal dignity and rights of the victim is envisaged in many universal and regional international law acts. All these international law acts and agreements partially or entirely are devoted to the solution of the problem of defense of those people who became the victim of crimes not only of habitual criminals, but also of the lawbreaking state officials vested with authorities to implement law and justice.
All these international law acts contain the imperative directives for national legislation and legal practice in the sphere of defense of the human integrity, rights and lawful interests of those persons, who suffered moral, physical, physiological and material injury from criminals.
An opinion of the victim must be considered and trustfully examined in all stages of criminal justice from the position of international and national legislation, because the main function of criminal justice is and should remain the paramount defense of the victim’s needs and lawful interests.
Effective protection of the right to health from the viewpoint of law is possible only if there is an efficient mechanism of the realization of norms, which regulate the relations in this sphere. As the problems of healthcare has transcended the national borders and now have a universal character the international law has elaborated a system of rules, standards and prescriptions the aim of which is to resolve international problems in the sphere of healthcare.
In the article international documents related to the issue and the practice of IHO are analyzed as the provisions of international acts regulate various problems in the sphere of healthcare and the practice of international organizations assist in their implementation. This forms the basis for a new international law institute of human right to health to emerge.
The author suggests in the article the complete definition of human right to health on the basis of the provisions of international documents which runs as follows: “Each person without distinction of race, religion, political convictions, economic and a social status has the right to the highest achievable level of health which is characterized not only and not so much absence of illnesses or physical defects, but a condition of full physical, sincere and social well-being. Thus everyone has the right to such standard of life, including food, clothes, dwelling, environment, qualitative and accessible in economic and geographical sense medical leaving and necessary social service which is necessary for find and maintain the specified condition.”
Recovering damages for psychological injuries is a special means of legal relief in case of violation of personal non-proprietary rights. Invasion of privacy is one of torts for which such a relief can be sought. However, the character of its application differs from country to country, which can be seen on the example of Anglo-American and Russian legal practice.
Extensive practice of recovering damages for psychological injuries by invasion of privacy in Great Britain and USA has developed due to long-established system of precedents in this field. In contrast, Russia lacks the appropriate experience and thus must apply to foreign expertise in this matter.
From the point of practical legal application of recovering damages for psychological injuries by invasion of privacy two essential issues concern the grounds for recovery and the criteria for defining the amount of the damages sought. The article deals with detailed analysis of these issues relating to Anglo-American and Russian experience and contains recommendations that may promote more successful application of recovering damages for psychological injuries by invasion of privacy in Russian domestic legal practice.
НАСЕЛЕНИЕ
The author states that in the framework of integrating states the realization of human rights is more probable particularly in the aspect of the rights of foreigners as there is no doubt in positive results of the integration. Only united can the states provide their population with an access to a maximum number of rights and freedoms. This statement is illustrated on the example of integration in Latin America.
The author not only describes the history of integration of LatinAmerican countries in the field of human rights but also provides with the comparison of integration in Latin America and Europe. The influence of the example of the latter is strong in Latin America though integration processes started there earlier than in Europe. Further on the author enumerates and describes official documents and treaties related to the issue of integration.
Regional international organizations such as MERCOSUR also play an important role in the process and are analyzed in the article. On par with the existing ones there are ideas of forming new regional organizations which will be active not only in the economic sphere but will also enhance collaboration in the sphere of human rights. But the author also mentions the existing problems in the process of integration in Latin America which are hard to cope with. Though these hardships cannot stop the on-going process of integration.
This article considers the notions of “foreign citizen” and “dual citizenship”. The issues of “deportation” and “foreigner status” are also addressed, while different types of the latter are compared with legal status of a citizen.
The development of legal status of foreigners after the acceptance of the Charter of the UN is also discussed. The legislation applied to the given category of persons is analyzed. The role of the Constitution of Russian Federation in regulating the issue is revised.
The article touches upon the status of working migrants and members of their families. The authors briefly describe the situation of refugees, who can’t apply for this status, and the problem of monitoring of human rights of this type of population.
INTERNATIONAL HUMANITARIAN LAW
The article characterizes the approach of Russian conservative thought to the problem of legal regulation of armed conflicts.
As conservatives had little faith in the regulative potential of international public law as a whole, their approach to international humanitarian law was in line with this view. This weakness of faith in the possibility of universal peace enforced by exclusively legal means had a strong sociological, culturological and anthropological basis.
From the conservative point of view, limitations of international law, unlike those of national law understood as a “minimum of morality”, went beyond the requirements of Christian morality which was relevant for the conservative understanding of law. Therefore, the respect or non-respect of these limitations may be made totally dependent on the principle of reciprocity.
Conservatives had no doubts that the principle of reciprocity was crucial for fair international relations. In cases of violations of international law in general and international humanitarian law in particular the principle of reciprocity was interpreted as part of the responsibility mechanism. However, possible reprisals must not undermine the basis of State structure and contradict the basic legal principles of the State applying such reprisals.
On the one hand, during the whole period of the development of international humanitarian law (the last third of the 19th and the first quarter of the 20th century) the conservative approach to it did not change significantly. On the other hand, conservatives recognized the necessity of international conflicts and condemned States that gravely breached international agreements during armed conflicts; they welcomed practical achievements in the field of international humanitarian law.
The conclusion is that the proponents of conservative understanding of law were not legal nihilists in their evaluation of international humanitarian law. Their criticism was levelled, finally, against uncritical and misleading overestimation of the potential of legal institutions and procedures, as well as against dishonest attempts by some States or groups of States to use the weaknesses of existing legal mechanisms to the detriment of the other members of the international community. However, when a conservative is convinced that an aspect of armed conflicts may be regulated by legal means he works towards making existing rules more efficient and even insists on further development and adoption of the rules of international humanitarian law.
GUARANTEES IN INTERNATIONAL LAW
Origin and development of contractual practice in the period from ancient civilizations up to the end of the 18th century were accompanied by formation of various means of providing of execution of international contracts.
For the purposes of realization of contractual establishments of the state during this period they used the reference to divine forces, the guarantee of the third states and Roman Catholic Church, institution of hostages, the fine for infringers of the contract, ratification, and institution of keepers of the contract, the international guarantees and other means.
Despite of lacking of objective conditions for realization of means of providing of international contracts, these means have entered into the international practice, it was the forms of prompting to stop infringements of the legal obligations and in such quality in a small degree they provided certain contracts measure of behaviour of the states.
In this sense they carried out function of international-legal guarantees as they could not be considered out of with them. Meanwhile international guarantees have actually arisen and started to function.
ВОПРОСЫ ТЕРРИТОРИИ
After the change of presidents in Russia the interest to the issue of the limits of the continental shelf has increased due to several developments, which took place in this sphere. Apart from reality there are several myths conjured by mass media.
In 2001 Russia has made a submission to the Commission on the limits of the continental shelf, which in its place made several recommendations in respect of the submission. Russia has conducted an extensive and expensive research on the Arctic basin to substantiate the claim according to the recommendations. Simultaneously delimitation negotiations were conducted with Norway and also there are issues with Japan in the Sea of Okhotsk.
The author highly criticizes the position of the Ministry of natural resources and ecology and suggests that submission should be revocated. Further on the author points out myths related to the issue of the limits of continental shelf of Russia and particularly pinpoints rude mistakes of the media in this respect.
In the article the author recommends to the Government of the Russian Federation to revocate its submission. Also he suggests starting negotiations with Canada on the delimitation of the continental shelves. Simultaneously such negotiations should be launched with Norway ad Denmark. The author provides a vigorous support for these recommendations and enumerates several reasons for the steps suggested by him.
SPACE LAW
In the article a retrospective analysis of developing space cooperation is carried out within the framework of International Maritime Satellite Organization’ (INMARSAT) activity as an original form of International Mobile Satellite Organization (IMSO) to solve problems of World Ocean and space.
The article investigates into the history of creation and legal foundation for international cooperation of the above-mentioned organization.
The contemporary legal aspects of IMSO are analyzed. In addition, the trends of development of organization activities are revealed for the purpose of protecting the Russian Federation’s interests to provide security of navigation in sea areas, security of Russian-flag vessels, crews and persons aboard the vessels.
PAGES OF HISTORY
The institute of international criminal liability of individuals has undergone a long and complicated process of elaboration. Initially the efforts in this sphere were concentrated only in scientific works of international law scholars who found that war was an acceptable way of solving international disputes. The most important question in the doctrine of international criminal liability was the issue of personal liability of individuals who committed war crimes.
In the article the author points out the tendencies and provides an indepth analysis of the history of elaboration of the institute of international criminal liability on the basis of numerous works of major scholars in this field starting with Hugo Grocius. Primarily the author focuses on the period of the XIX century and states that neither international legal acts nor international law doctrine of the period could not rise up to the fact of necessity of abolishing international war crimes and first of all of abolishing aggressive war. But without these efforts the active elaboration of the norms of international humanitarian law in the period between the world wars would not have been possible.
INTERNATIONAL ECONOMIC LAW
The principle of mutual advantage securing the opportunity for the parties of economic cooperation to accrue benefits on equal and non-discriminatory basis and enshrined in several multilateral international documents is considered to be one of the most important principles of the international economic law.
The article, including six paragraphs besides the introduction and the conclusion deals with the different aspect of the USA activity on the international scene disregarding this principle and leading to unilateral advantages and benefits.
The first paragraph focuses on abusive actions taken on the national level leading to the creation of obstacles and disadvantageous economic conditions for the US partners. The second paragraph describes international economic agreements concluded by Russia on the unequal terms of the USA. Jackson-Vanik amendment removing the most favorite nation clause in the economic cooperation of Russia and the USA is the subject of the third paragraph. The forth paragraph deals with the extraterritorial laws of the USA attempting to restrict the sovereignty and the economic independence of other states. The fifths and the sixth paragraphs are devoted to the country classifications helping to justify the subsequent discriminative actions and economic sanctions against these countries aimed at irreciprocal advantage of the USA.
In conclusion the author offers some actions to be taken at the international level in order to leave the practice of receiving unilateral benefits, secure the fulfillment of the principle of mutual advantage and guarantee the equal economic cooperation.
The article contains examples of the international agreements and of the national laws of the USA.
МЕЖДУНАРОДНОЕ И ВНУТРИГОСУДАРСТВЕННОЕ ПРАВО
At present the right of a state on expropriation of foreign investments is widely admitted. In normative terms it is fixed in many multilateral and bilateral investment treaties as well as in national law.
Expropriation is divided into two groups. In one case the property of an investor is transferred to the state (direct expropriation). In the other case the property of the investor continues to belong to him, but he loses the control over the property (indirect or creeping expropriation).
It is argued that not any activity of the state directed to the deprivation or restriction of the investor’s property right is amount to expropriation.
It is necessary to admit the following actions as non-expropriation: a) tax regulation (which should not have discrimination character); b) compulsory deprivation and refusal of a license, cancellation of a contract for the infringement of stipulated duties by the foreign investor; c) regulation of legal relations connected to the protection of competition; d) regulation of currency relations; e) regulation of foreign trade activity; f) regulation of the protection of environment; g) sanctions for the infringements of the right of the state.
It is concluded that lawful expropriation can be performed under only two conditions: a) on non-discrimination basis; b) with the payment of compensation. The size and order of payment of compensation in case of expropriation must be defined in treaties and national law.
ПРАВО ЕС
This article examines the structure of the Treaty of Lisbon (the Treaty) which was adopted on December 13, 2007. In doing so, the article provides a short review of the emergence of this document and subsequently conducts a comparative analysis between the Treaty and the rejected European Constitution of 2004 highlighting both the differences and similarities between those two acts. The author argues that the differences between the Treaty and the European Constitution essentially of cosmetic nature. Although structurally the Treaty still resembles the previous Treaty of Nice of 2001, the contents of the Treaty of Lisbon incorporate the overwhelming majority of the provisions of the European Constitution. Simultaneously, the article points out the problems of the European integration arguing that further considerable enlargement of the EU would not promote the consolidation and deepening of the integration processes within the EU. Summing up the article, the author makes a conclusion that the Treaty of Lisbon, being an adapted version of the European Constitution, would certainly contribute to the transformation of the EU into a more effective structure. At the same time, the Treaty is just another stage in the history of the constitutionalization of the EU and on its (still very long) way to the political union.
Two years ago in Russia became effective the new antimonopoly legislation. The necessity of making radical changes in the competition law was evident as it did not meet the demands and requirements of the growing Russian economy.
The new Russian Law on protection of competition replaces two laws that regulated competition on financial and goods markets. It introduces new definitions and concretizes already existing antimonopoly terminology and notions. The amendments that were made are based on the existing local and international court practices and cases and related decisions of the Russian and EU antimonopoly bodies.
In particular, the article considers the following problems and issues:
1. the newest statutory interpretation of the meaning “goods” and “market place”;
2. amended meaning of the term “dominant position” and “abuse of dominant position”;
3. amended meaning of the terms “agreements” and “coordination of economic activities”;
4. amended and clarified meaning of the terms “monopoly low price” and “monopoly high price”.
In the article also considered some related aspects of the EU antimonopoly practice with the respect of possible application of the existing EU experience for the Russian competition regulation and practice.
ИЗБРАННЫЕ ДЕЛА МЕЖДУНАРОДНОЙ ЧАСТНО-ПРАВОВОЙ ПРАКТИКИ КОЛЛЕГИИ АДВОКАТОВ «МОНАСТЫРСКИЙ, ЗЮБА, СТЕПАНОВ & ПАРТНЕРЫ»
BOOKSHELF
The main asset of the book is first of all that it managed to include all its author’s major scientific achievements made in different areas of the contemporary international law, which according to his own opinion require further fundamental studies and deeper knowledge. Among these fields of international law theory the most important are the following issues: essence of international law conceived as integral system; legal personality of international (intergovernmental) organizations; relationship between international law and private international law; evolution and the periodization of the history of international law theory; system of the contemporary international law; theoretical issues of relationship between the international and municipal law; relationship and inter-action between international and national law with regard to the Constitution of Russia; acute problems of the so-called “extraterritorial effect” of the expatriate laws; the Decree of Peace – the international legal Declaration of the October Revolution; non-violent peace – the fundamental principle and target of contemporary international law. The list of issues mentioned above reflects the structure and composition of the book, which consists of 11 essays. The main part of the monograph is the author’s solution to the problem of the system of international law that represents the theory developed by E.T. Usenko in his earlier publications.
In the frameworks of the short book-review, it is hard indeed to give an overwhelming analysis of the work. Still it will not be an exaggeration to say that a profound study of the “Essays on the Theory of International Law” from the point of view of ideas, conclusions and statements contained therein would certainly be of vital interest for scholars within a long time in the forthcoming future.
ЮБИЛЕЙ
ДОКУМЕНТЫ
НЕКРОЛОГ
ISSN 2619-0893 (Online)