ВОПРОСЫ ТЕОРИИ
The foreign investments have not only favorable opportunities and some risks. The massive transnational capital flows exert influence on economic sovereignty of developed countries. The state sovereignty is the base of foreign investment regulation. The State independently defines its foreign investment policy, established in correspondence with the national legislation the rules of access oversees capitals. The revival of Russian real economic system could be achieve only by way of massive and balanced attractive of national and international investments, reasonable combination capricious public and private interests. The world experience shows that the foreign investors using their supermobility capable of fast accumulate the huge financial resources into separate branches of national economy for extraction maximum profit and with speed take them from state-recipient out. That is why it is need to find the optimum correlation interests of state and foreign investors improving the regulation on international and national levels. The legal regime of foreign investments includes national legal and international legal regulation. An interaction of this two independence constantly close cooperating law systems is a great factor of legal development in the contemporary issues.
HUMAN RIGHTS
Authors have undertaken initiatives aimed at actual problems of protection of ecological human and citizen rights by Russians witch caused by a divergence of norms of the national legislation of the Russian Federation with standards of the Council of Europe.
Authors offer alternative sight at reference points for the further development, implementation and legislative definition of ecological human rights in Russian law and also at realization mechanisms of their protection intended to make contribution to respect for human rights in Russian courts.
On the basis of the analysis of judiciary practice of the European court of human rights as well as statistical data and the Russian legislation authors formulated practical recommendations of developing a coherent and consistent policy for human rights
INTERNATIONAL HUMANITARIAN LAW
It is stated in the article that from the formal point of view treaties in respect of the international humanitarian law (IHL), to which Russia is a member, are addressed to the state armed forces, which are the basis of the defense of the Russian Federation According to the art 1 item 5 of the federal law «about the Defense» the defense of the state is also provided by the internal troops of the Ministry of internal affairs of Russia. The principles and norms of IHL should be fully used in respect of these troops during the armed actions.
During the international armed conflict norms of the IHL also cover: internal affairs authorities of Russia if they are included in the Russian armed forces; internal affairs authorities’ personnel, which takes part in UN peacekeeping operations, protects the rights and interests of the civilians during armed conflicts including fugitives and stateless persons, provides assistance in searches, conducted by the members of the families dispersed by war, and also searches of persons who committed serious breaches of the norms of international humanitarian law.
INTERNATIONAL SECURITY LAW
The article covers essential legal aspects of international (global) energy security, based on the analysis of Energy Charter Treaty (1994) and G-8 summits documents. The balance between producers and consumers of energy and transit countries, energy efficiency and ecological aspects are the key issues for international energy security today. The Energy Charter Treaty provides a tangible contribution in the area of global energy security. Treaty’s binding mechanisms for investments protection and the issues of reliability of transit as well as the operations’ transparency of energy markets are designed to provide the international energy security. New energy players, China and India, should be involved into the cooperative dialogue on energy. One more aspect is to ensure that policies pursued by governments and international organizations provide the sustainable energy future.
The article explores the interplay between international and Russian law underlining the suspension of the operation of the CFE Treaty by Russia It guides the reader through complexities of the applicable Russian legislation – from the Constitution to the Rules of Procedure of chambers of Parliament, that regulate treaty authority of branches of power.
The article draws on the negotiating history of the Vienna Convention on the Law of Treaties in search of proof that a suspension of the operation of a treaty, while not specifically provided for in the treaty text, may still be an option for a party that desires to show its discontent with the way the treaty is implemented by others, without destroying the treaty, and to demonstrate its desire «to play by the rules».
INTERNATIONAL ECONOMIC LAW
Nowadays Iraq has a great amount of perspective oil-fields, the potential reserves of which are supposed to be vast Foreigners nowadays have practically lost access to the Iraq oil. The rights of access generally have the state companies - North Oil Company and South Oil Company Such a situation is not in the interests of Iraq which would like to return foreign capital to the state Before the War Russian companies had been actively working on the Iraqi territory.
The Iraq authorities state that foreign companies will have no control in the projects At the same time it is not excluded that the Iraq National Company will master oil-fields in cooperation with foreign investors But, as Husayn al-Shahristani thinks, the «Lukoil» company has significant chances to get the same oil-field again, but this time – on a tender basis It seems that the pro-American government of Iraq is not satisfied with the fact that «Lukoil» will get such an attractive contract. And nowadays it tries its best to, as minimum, to reconsider its conditions on some formal ground.
Not only Western, but Arabic, Chinese and Ukrainian companies have also demonstrated their interest to the oil-fields of Iraq In any case, a complete return of Iraq to the global oil market will non bring benefits for Russian oil businesses: our companies will not be allowed to act in Iraqt in the former capacity and the increase of a volume of Iraq export will inevitably lead to the fall of the prices of hydrocarbon materials on which depends the budget of Russia Iraq is interested in the Western oil giants to take an active part in the national oil business - considerable technical possibilities of the giants are well known. Therefore, being supported by Washington and London, they are more likely to win in the contest for the participation in the biggest projects in Iraq that is scheduled for the end of 2007.
So the Russian oil companies will have to maneuver between various «players» at the Iraq political and oil fields and right now, notwithstanding various difficulties and even dangers, should start an active play.
INTERNATIONAL FIGHT AGAINST CRIME
In the doctrine of international criminal law there are two categories of international crime: international crimes and crimes of international character Both of them cause a considerable damage to the international order, peace and security and eventually the interests of each and every county.
Terrorism is usually referred to as a crime of international character. Nowadays it can be defined as illegal acts which pose a threat to the international peace and the security of humankind But still there is no unified definition of terrorism while attempts had already been made in the framework of the League of Nations in 1937.
The leading role in fight against terrorism belongs to the United Nations 13 Conventions on the issues of terrorism had been adopted in its framework These conventions are of great importance though some things need to be revised and corrected Apart from this UN Secretary General initiated in 2003 an establishment of a special group to monitor the threats to the international peace and security.
It is necessary to elaborate on international level a single antiterrorism convention, which could cover all the relevant issues and include the definition of terrorism approve by the majority of states. This fact would enhance the fight of international community against terrorism. Also terrorism can be included in the list of international crimes to be prosecuted for in the framework of the International Criminal Court.
Recently the bodies of national justice had been the only effective institutional system But as the result of globalization and in order to protect the interests of the international community there appeared a great number of international organizations and bodies particularly in the sphere of penal justice.
The article dwells on the issue of different bodies and authorities of international penal justice In author’s opinion it is a system of bodies the activities of which are directed to the realization of international justice in criminal cases Particularly the author analyzes different aspects of the national authorities and bodies and concludes that they possess no dual nature and are only state bodies and they are involved in the international criminal process in this capacity Further on different kinds of national bodies of penal justice, their interaction between each other and the ways they participate in international penal justice are analyzed.
The main conclusion the author arrives to is that the national bodies are simultaneously the bodies of international penal justice and act in this capacity what is greatly supported by the fact that the bodies of international organizations in the sphere of penal justice cannot act effectively without interaction with national authorities There is strong connection between them as their main aims are the same.
Today’s international legal landscape is different from that which was in existence 10 years ago. The International Court of Justice is no longer the only permanent international court. Many other specialized and regional international judicial bodies have been established, such as the International Tribunal for the Law of the Sea, Dispute Settlement Body of the World Trade Organization, the ad hoc International Criminal Tribunals for the Former Yugoslavia and Rwanda and etc. This is undoubtedly very good news for international law system, because the proliferation of international judicial bodies signals an increase in international litigation and has very positive impact on development of international law.
The establishment of a hierarchy of international judicial bodies is extremely difficult and will have a very negative impact on specialized international judicial bodies/ The risk of fragmentation of international law because of conflicting judgments and/or conflicting interpretation of the same norms is insignificant. The International Court of Justice remains the only international court of general jurisdiction. Its pronouncements on general international law are the most persuasive for all the specialized international judicial bodies, which contribute to the development of international law in specialized areas. So, the unity of international law system is maintained.
LAW OF THE SEA
Island territories play a great role in international relations as they possess several major characteristics, which attract the attention of the states. One of such factors is the role of island territories (islands, isles, rocks, etc) in the delimitation of maritime spaces.
The article offers an analysis of all major types of island territories. The definition of each island territory and the history of its elaboration are included in the analysis. Also the practice of the states in the sphere of delimitation where islands are involved is being described on par with the judgments of courts (particularly International Court of Justice) in respect of these issues.
The type of the island territory presupposes the size of maritime spaces attributed to every particular territory and consequently the amount of resources the state will be entitled to. The resources are often the reason for the emerging conflicts in respect of the island territories. If the norms of international law are settled in this respect and each type of insular territory is attributed a set size of maritime spaces and related rights, this will eliminate a great number of problems with regard to delimitation where islands are involved.
Thus there is a necessity of elaboration of a single official document on this issue, as it may resolve many existing or potential conflicts in respect of islands. This document can be adopted in the framework of the UN General Assembly or IMO. There is also a possibility of introducing amendments to the existing convention but now it seems impossible and unnecessary though the regime of islands should be clarified in order to preserve stability and good neighborly relations between states.
INTERNATIONAL PRIVATE LAW
The article analyzes admissibility of ordinary e-mails where applicable law requires the contract to be made or evidenced in writing and signed.
In the absence of the relevant legal definition, nature and imperative content of signature are deduced from the legal acts, case law and doctrine.
Paper also looks into specific Russian law requirements to the form of foreign trade deals and electronic signature Given that Russia has recently signed the UN Convention on the Use of Electronic Communications in International Contracts, paper describes the current English practice which may be instructive Author comes to the following conclusions and recommendations de lege ferenda:
a) signature by nature is the attribute of form, so that even when the authority of a party is not disputed, the contract still may be void absent the valid signature;
b) to take a more liberal approach towards harmonization with international instruments and trade practice, Russian law shall define the signature as any mark stated by the signatory on the document with the aim to identify the signatory and its intentions towards the document; and
c) for the avoidance of doubt, all statutory requirements to the form of signature shall be explicitly waived.
МИРНОЕ УРЕГУЛИРОВАНИЕ СПОРОВ
As acknowledged on numerous occasions by various international trade experts and practitioners, the existing WTO dispute settlement system works quite satisfactorily. This system is largely based upon past GATT-1947 practice on dispute settlement. The WTO Dispute Settlement Understanding (DSU) is nowadays the principal WTO Agreement applicable to the resolution of trade disputes arising among WTO Members.
The DSU, however, is regularly criticised by various stakeholders for certain shortcomings, including, inter alia, «weak» enforcement disciplines partially inherited from the «old» GATT’ dispute resolution practice.
In this respect, the reliance by WTO Panels and the Appellate Body in their recommendations on exclusively prospective remedies for injured WTO Members is certainly questionable and has given rise to interesting discussions from the legal, political as well as economic points of view.
This is particularly true with regard to disputes involving subsidies, where special provisions on dispute resolution of the WTO Agreement on Subsidies and Countervailing Measures (ASCM) apply and which under certain conditions supersede the respective DSU rules In this respect, the author argues that in cases where Articles 4 7 or 7 8 of the ASCM, which deal with remedies available to counter certain illegal subsidization practices, apply, the WTO Dispute Settlement Panels as well as the Appellate Body are entitled to have recourse to retroactive remedies and to recommend repayment (even in full in certain cases) by recipients of illegally provided subsidies.
While the «retroactivity of remedies» approach is not supported by the prevailing WTO dispute settlement practice and current views of certain WTO Members, it has basis under the legal texts of both DSU and ASCM.
Its admissibility has also been indirectly confirmed in reports of GATT/WTO Panels and could be supported by statements of certain other WTO Members In addition, this kind of approach would be in line with customary rules of public international law on state’s responsibility.
However, the introduction of retrospective remedies into WTO dispute settlement practice would give considerably more weight to the judicial and technical components of the WTO dispute settlement mechanism.
This would certainly diminish the political and negotiations-based nature of the current WTO dispute settlement proceedings. That, in turn, may trigger an evolution of the enforcement procedures of the WTO dispute settlement process to purely law-based procedures, similar to national or international commercial courts, and to abandoning their current «quasijudicial» status.
ЕВРОПЕЙСКОЕ ПРАВО
Renewable energy sources are extremely important due to the fact that an increase of their share in energy balance of a state leads to decrease in consumption of nonrenewable energy sources. This is crucial for ensuring sustainable development, especially in the contemporary situation.
The term «renewable energy sources» is used in the EU law terminology differently as in comparison to universal international treaties or the doctrine of international law In the EU the term is interpreted as renewable energy resources such as wind, solar energy, etc. The article focuses on the analysis of the EU legislation regulating activities of the EU Commission and Parliament, committees and programs (SAVE, ALTENER, STEER) related to the issue.
Though the EU takes certain steps towards facilitation of renewable energy sources, the results are still insignificant due to several obstacles hindering the development in this direction. These are in particular legal obstacles leading to the lack of investment, technical barriers, and complexity of licensing procedures, non-transparency and excessive administrative regulation Economically, the task of increasing production of renewable energy sources can not be resolved in the middle term and thus, the consumption of the non-renewable energy sources is likely not to decrease until 2030.
Nevertheless, analysis of the EU’s experience in regulation of the development of production of energy from renewable energy sources shows that it could be effectively used in Russia.
The development of the free movement in the European Union area of all persons as European Union citizens and citizens of the third countries are closely related to the implementation of the Schengen Information System and the Schengen visa. If the European Union is the important member of the world space so studying of these processes in the European Union frame is very actually. The article «The Schengen Information System and the Schengen visa as the important component of the free movement of the persons in the European Union» is devoted to the analysis of the law formation and development of the Schengen Information System in the European Union. It is concentrated to the creation and to the main stages of its development. The author is based on the international law sources showing the continuity in solutions of these issues on the European area In the article is paid attention to the main differences of the new Schengen Information System (SIS II) and motive of its adopting In the article is analyzed «The Common Council Instruction on visas for the diplomatic missions and consular posts» and the types of the Schengen visa.
VOICES OF THE YOUNG
Space industry currently is one of the most rapidly developing spheres in the Russian Federation. The general tendency of the development can be articulated as follows: gradual commercialization, international cooperation of states on such matters as aerospace equipment supply, organization of man-tended missions, the testing of the cutting-edge satellite and navigation systems However, the insufficiency of a comprehensive legal base in Space Law is evident. The main reasons of the present situation lie in a relatively recent declassification of the documents which form a basis of the Russian Space Law, incompatibility of paces of development as to the Space industry itself and the reflection of the achievements in a legal form. The problem to be solved in the first place is determination of the legal status of cosmonauts and fixation of the complex of employment rights and obligations this sui generis category of workers has according to the Russian legislation.
The purpose of the article is to point out the moments concerning the legal status of cosmonauts as employees which must be considered by the lawmaker at short notice, to reveal the disputed points as to the type of work – whether the constructions of either watch or mission are applicable, the range of rights and obligations, guarantees, benefits and privileges granted on the basis of special nature of work and harmful working conditions involving risk-taking It should also be stressed that one of the major problems that hinder the normal development of Space Law is the so-called «staff ageing», i e the lack of young highly qualified personnel in the aerospace industry.
In the conclusion the author notes that the only way to stimulate the progress in the sphere of Space Law is to start a thorough groundbreaking research work aimed at revealing numerous lacunae and filling them in, resolving conflicts of legal norms, as a result of which a single comprehensive legal instrument in a form of a new Employment Code chapter or a codified act will be articulated and will lay a strong foundation for the protection of future innovations in the sphere of research and exploitation of space and celestial bodies.
The article dwells on the contemporary situation in respect of the capital punishment both in international and national law. On the one hand, the death penalty is supposed to be forbidden and abolished as cruel and inhumane.
On the other – the death penalty is an effective way to fight violence and crime Both points of view are supported by the arguments, based on the results of the scientific research, which though are controversial.
The role of the capital punishment is widely debated on the international level as well as on national. Thus, last November the UN General Assembly has adopted the Resolution, which established a moratorium on executions with a view to abolishing the death penalty. In this respect some other acts
of international law Meanwhile the situation in Russia seems to be very complicated. About 80% of population including many outstanding lawyers and public figures support the death penalty as the punishment for especially grave crimes, such as terrorism In fact, Russia has not used death penalty since 1996, but it is the part of the Russian law system.
The article emphasizes that the tendency to the abolishment of the death penalty seems to be apparent. However, it will take much time for abolitionists to assure the adherents of the capital punishment that it is neither effective, nor humane. The univocal interpretation of the death penalty could be only the result of cooperation of the states and international bodies.
ХРОНИКА
Lawyers, economists, diplomats from Russia, Canada, Norway, USA, and Denmark participated in the discussion on the topic. In his opening remarks Professor A N Vylegjanin (Head, Department of International Law, MGIMO) underlined the importance of the topic because of the political and economic value of the statute of arctic subsoil and international law Professor S A Gureev and Dr I Bunik provided a general overview of alternative approaches on defining the statute of arctic high-altitude subsoil. According to them, there is no sense to allow more than 150 states to access the Arctic subsoil, which would happen if the International Area is established in the Arctic Accordingly, they offered alternative principles of delimiting the Arctic Oceans’s subsoil between the arctic states only Professor O Sanders, Director of Canadian Institute of Resources Law, was the main reporter. His report highlighted the following: at the moment, the statute of the Arctic’s high altitude subsoil is of no practical meaning, but
it may change in the future; sectoral borders in the Arctic are drawn as state borders on some official Canadian maps, meeting each other at the North Pole; Canadian legislation on the Arctic sector is the oldest (since 1906); Canada, however, is flexible in its implementation.
There were differing opinions on some of the issues. The idea of the Arctic states having to transfer part of their continental shelf in the Arctic to the Area was debated; some participants suggested that states are not obliged to do so Furthermore, it is impossible legally: one of the Arctic states is not a member of the 1982 Convention/ The suggestion that Russia has started already establishing the Area in the Arctic by making a submission according to article 76 of the 1982 Convention was criticized, as it is not possible to establish the Area from the Russian side only There was only one question where all participants agreed: rights of a state on its continental shelf exist ipso facto and ab initio and do not depend on any recommendation, including that of the Commission on the Limits of the Continental Shelf/
BOOKSHELF
The author of the afore-referred edition, being Doctor of Laws, Professor, occupies the post of the Head of the Chair of International Law of the Diplomatic Academy, Ministry of Foreign Affairs of Russian Federation.
Notwithstanding the point that through the last years within Russia a substantial quantities of special publications related to the International Economic Law have been emerging on rather regular basis, the effective, fundamental and system analysis of the International Economic Law issues realized from the stand of the Law theory (including International Law theory) leaves a lot to be desired.
Unfortunate fact, but actually Russian legal science in the most of cases is represented by textbooks and casebooks which is proper as well for the field of the International Economic Law Just the same gender is immune to the edition commissioned by prof A A Kovalev.
In the Introductory Note to the textbook it is stressed out that the item was in its essence deemed for use to require the educational objectives, however it is not to be construed as an obstacle for using by the practitioners, i e those who being the members of state authorities staff, have the powers to formulate and affect the public interests pursuing in the field of international economic relations: both scholars or public executives, specialists in the theory of law, etc.
The book reflects the growing complexity of the international economic relationships from the one hand, and appearance due to this of certain legal problems in the International and Municipal law systems – from the other side Having differentiated the two notions, namely: «international economic law» and «international economic activities», – the author does seek by the same very important target – to demonstrate prima facie, that the international economic activities are consisted not only of the acts and deeds of public entities (those international and municipal having the interstate nature), but also private subjects of law (natural and moral persons including transnational entities or multinational companies, their consortia, etc ); it is to be shown, secondly, that the International Economic Law is capable to regulate only certain quantity of the international economic relationships, entered into the general notion of foreign economic activities, and thirdly, that between the regulation of foreign economic activities formed by the relationship where the private subjects of law are involved, and the same which consists of public relationship (mostly between the state-powers), there is no «Chinese Wall».
ЮБИЛЕЙ
ДОКУМЕНТЫ
ISSN 2619-0893 (Online)