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Moscow Journal of International Law

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No 2 (2008)
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https://doi.org/10.24833/0869-0049-2008-2

ВОПРОСЫ ТЕОРИИ

5-19 417
Abstract

The article is dealing with issues of correlation and interaction of administrative reforms in Russia, of its national legal system with international administrative standards. These issues acquire special importance in the context of growing integration and globalization tendency. The World’s best administrative practices, with an eye to their application in Russia should necessarily be viewed in the general context of the situation that evolved as a result of historical development of our own Administrative system. The article endeavors to cast a critical look at internationally recognized state management effectiveness indicators. The flaws of the current evaluation methodology of public administration quality standards call for the need to create other such methodologies based on “second generation” indicators.
The issue of harmonizing the reforms leads on to the need of establishing legal integration and a global legal environment. When applied to standards of public administration it means global administrative environment. This phenomenon has seen successful development by American specialists in the field of public administration in last decade, has been internationally recognized, and could be quite easily adopted by our own legal science, even though it might be better defined as “the environment of common principles of management”. In the author’s opinion, however all discourse of “the global administrative environment” is only possible after this term has been introduced into the international public law circulation in the overall international legal principles context. The elaboration of global (universal) international standards in the public administration domain is quite possible in the framework of the international law, while Russia has all necessary legal instruments to implement those standards in both its legal system and administrative practice.

20-30 330
Abstract

Conflicts are a part of any sphere of social life including the international relations, where terrorism becomes one of the most influential factors. The endeavors to understand terrorism lead to the research of the social conflict of which terrorism is a very acute form. It may serve as social signal for the possibility of a catastrophe as other conflicts cannot realize this positive function of a global conflict.
Any endeavors to define terrorism as a usual crime are fruitless if they are not based on the conflictological approach in its political and social aspect. The advantages of such an approach are evident as this helps to see the crisis in which the society delves.
The political aspect of the terrorist conflict is expressed through political power. Terrorist conflict is also defined through the methods employed to fight it. But the content of this conflict is determined by the complex system of inter-related phenomena of international life and the actions of the participants of the conflict. Further on the subject and the object of this kind of conflict are being described.
The author states that in respect of the global terrorist conflict legal impact is applicable as terrorist conflict can be fully classified in the international law categories that are as a crime according to international law.

HUMAN RIGHTS

31-37 387
Abstract

The article “On International Legal Guarantees for Ensuring Personal Rights and Freedoms in the Subjects of the Russian Federation” deals with the present system of human rights guarantees: international and domestic ones (that of the Russian Federation) and also guarantees constituted on the Russian regional level. By analogy with the Federal Constitution, constitutions (charters) of most constituent territories of the Russian Federation declare of their recognition of international standards as an inseparable part of their legal system. International law lays special emphasis on personal and political rights guarantees. The author concludes that one of the main objectives of the Russian federative state is to provide unified standards for human rights pursuance and protection on the whole of its territory – in all its constituent territories.

38-46 390
Abstract

This article examines the provisions of the Declaration on the Rights of Indigenous Peoples which was adopted by the UN Human Rights Council on June 29, 2006 and was ratified by the UN General Assembly on September 13, 2007.
This document proclaims cultural, religious, educational and other rights of indigenous peoples. The Declaration allows the indigenous people to participate in the political and social life of their country’s community. It fixes the right of self-determination, which means that indigenous people can establish their own political status and economic, social and cultural development. They have the right of autonomy and self-government in their domestic issues.
The document states that indigenous people should be protected against violent assimilation and violent deportation from their lands and also from any other discrimination. Indigenous people can keep their traditions, language; they should have access to their sacred places. Indigenous people can create their own media services in their native language; they can keep their own traditional medicine and so on.
But the main part of this document is the proclamation of indigenous people’s land rights. Article 26 of the Declaration allows indigenous people to hold their native land and its natural recourses.
After the analysis given in this article the author arrives to the following conclusion: the Declaration as a result of more than two decades of negotiation emphasizes that indigenous peoples’ control over their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions and to promote their development in accordance with their aspirations and needs.

47-61 353
Abstract

The research offered by the author had been conducted in the sphere of comparative law on the issues of family law. The author makes several suggestions in the article with regard to the ways how Russian legislation can be improved and updated.
Laws of different countries mention person’s health (physical and psychic) as a prerequisite for marriage. But there are differences in the laws of Russia and foreign countries in respect of this question and the author dwells on this question in the article.
The health of both partners in the couple plays an essential role in the matrimonial relations especially it is important for the birth of the common children. That is why this issue requires attention of the lawyers and jurists. The author states that before getting married in most countries it is required for a couple to have a blood test for venereal and other diseases.
Some countries also require a physical examination. Thus these tests help the partners become aware of any medical problems of each other that may affect their marriage.
In the conclusion the author states that in Russia medical test is a only a right for a couple which is rarely realized. Taking into account the importance of this issue the author of this article considers that this rule should become obligatory and that medical tests are to be the duty of a couple which wants to get married.

62-82 466
Abstract

The protection of biomedical research (medical experimentation) subjects is one of the up-to-date topics. The legal regulation of biomedical research on the international level started its development after the Second World War when several Nazi doctors were accused of illegal experiments on war prisoners and civilians.
The seriousness of the problem made it necessary to establish some international principals and standards of biomedical research realization.
As a result several international conventions and non-binding acts such as recommendations and resolutions on this subject were worked out. These acts stipulate a set of human rights in the field of biomedical research and strict requirements of experiments realization. During any experiment there is a potential risk to violate such fundamental human rights as right to life, to personal integrity, to health, to respect for private life. In the field of biomedicine these rights get a more detailed interpretation. The respect of these rights is the main duty of every physician who is bound to run a research on human subjects under the following basic conditions: absence of any alternative method of research; no serious risk; approval of the research project by a competent authority; free informed consent of a research subject.
Furthermore today the victims of medical infringements have the possibility to resort to the help of an international court though the cases relating to the protection of human rights in the field of biomedical research are not very numerous.
The issue in question still remains one of the most debatable. Many countries are reluctant to compromise during the negotiations on such controversial matters as therapeutic and reproductive cloning, use of stem сells or fetuses in biomedical research. That explains why it is impossible to adopt a universal international treaty on this subject.

INTERNATIONAL SECURITY LAW

83-93 374
Abstract

One of the most influential organizations, which played an outstanding role in the facilitation of the internal conflict in Tajikistan is the UN. The UN started cooperation with Tajikistan after it gained its membership in the sphere of resolution of the internal conflict.
In 1992 as the response to the request of the government of Tajikistan there was created UN Mission, which conducted a great deal of work in Tajikistan and as a result recommended that UN should launch the peacekeeping operation.
The Tajik government has also initiated the UN Observer Mission sent to Tajikistan to facilitate the contacts with the government of this country and to control the issues related to humanitarian aid provided by the UN. This mission was very important for the relief of tensions inside of the Tajikistan.
It is necessary to mention that UN agencies also played a significant role in resolution of the conflict: UNHCR, UNDP, UNESCO, UNCF and others. Apart from this the UN actively employed in Tajikistan post-conflict peace building measures.
Today Tajikistan is on the way to peace. The Bureau for facilitation of peace-building in Tajikistan which replaced UN Observer Mission plays leading role in a wide range of post-conflict measures taken in Tajikistan. It is evident that UN efforts in this country had proved effective and successful.

94-107 503
Abstract

In the present article we analyse the practice of the International Court of Justice (ICJ) in order to find out the position of the Court on existing norms of international law governing the use of force and the legality of self-defence.
The ICJ has ruled on the Legality of Use of Force (and the Legality of Self-Defence) in five of its judgments on Contentious Cases and two advisory opinions.
According to ICJ’s proceedings, the precondition for action in self-defence is an armed attack of one state against the other state. In view of the Court, whether the response to an armed attack is lawful, depends on the observance of the criteria of the necessity and the proportionality of the measures taken in self-defence. The Court does not believe that the concept of “armed attack” includes assistance to rebels in the form of the provision of weapons or logistical or other support.
Furthermore, the exercise of collective self-defence is not legal in the absence of a request by the State which is a victim of the alleged attack.
The Court has not ruled on the issue of the legality to exercise self-defence in case of the immanent threat of an armed attack or in case of a massive attack of irregular forces.
The provisions mentioned above are sufficient, given that the UN Security Council is taking due actions in due time. However, while the efficiency of the Security Council is questionable and the proliferation of the WMD remains a threat, the security and even the very existence of a state should be ensured through other means, extending to the possibility to use force against terrorist groups beyond the state’s territorial borders. At the same time, an unlimited possibility to use force for combating terrorism may contradict the purposes and principles of the United Nations Charter.
Progressive development of international law in relations to the use of force may resolve the matter in the future.

108-119 419
Abstract

This article is devoted to the unfortunate situation around the Treaty on Conventional Forces in Europe (the CFE Treaty). This Treaty adopted by two blocks (NATO and Warsaw Pact countries) in 1990 was assigned to decrease the quantity of military forces in Europe so that neither party would have an advantage over the other.
But the international conditions have changed dramatically: the USSR collapsed and the NATO recruited new members, including those who used to be parties to the Warsaw Pact. The parity was consequently broken. So in 1999 in Istanbul there was signed the Agreement on Adaptation of the CFE Treaty (the so called “adopted CFE”). The RF and a few CIS countries have ratified this Agreement, in contrast to the NATO countries, who refuse ratification until Russia withdraws its troops from Georgia and Moldova.
So RF convened an emergency conference of the countries-parties to the CFE Treaty. After the participants failed to reach an agreement Russian president took the decision to suspend the Treaty until the NATO countries ratify the Agreement on adaptation (the moratorium entered into force on December, 12, 2007). This decision can not be based on provisions of the Treaty itself as it provides only for denunciation (not suspension). But Russian government can refer to the right of self-defense without use of force, because this situation (taking into account the NATO expansion and the plans to station the ABM in Europe) threatens territorial integrity and sovereignty of the Russian Federation.

INTERNATIONAL ECONOMIC LAW

120-138 391
Abstract

The CISG’s (Convention On The International Sale of Goods, 1980) provisions on specific performance illustrate the problem of giving clear guidance to courts that must apply the CISG’s provisions. One of the most important items that have to be defined by the creditor, besides the availability of one or other remedy, is the benefits of its execution for the creditor. The giving problem is examined in the present article from the point of efficiency of execution specific performance or damages in return on the economical and legal base. In respect of this the economic analysis affects the Coase Theorem and Pareto superior allocation criterion with the purpose of optimal protection of creditor’s interests.

КОСМИЧЕСКОЕ ПРАВО

139-153 511
Abstract

For several years international lawyers specializing in the field of the international space law are talking about formation of the international space private law. This opinion is also supported by a number of countries’ official delegations at UN COPUOS and its Legal Subcommittee. But nevertheless there is a lack of overall scientific research on this issue.
It seems that international space private law could provide the most adequate legal regulation for private space activities.
The author of this article defines international space private law as a set of substantive and conflict norms regulating property and personal nonproperty relations with a “foreign element” connected with space activity.
International space private law is characterized by its specific subject and methods of legal regulation.
Principal existing and potential legal sources of the international private space law are:
• The 2001 Cape Town Convention on International Interests in Mobile Equipment and the draft Space Assets Protocol.
The primary character of UN space treaties is prescribed both by the 2001 Cape Town Convention and draft Space Assets Protocol;
• National space legislation (e.g. U.S, Russian, UK and Ukraine laws and etc.);
• Space law cases.
This article also contains a brief on legal status of subjects of the international space private law.
Finally the author analyzes the perspectives and tendencies of development of the international private space law.

INTERNATIONAL FIGHT AGAINST CRIME

154-157 380
Abstract

Сonvention of the Council of Europe on civil-legal responsibility for corruption (from November 4, 1999) defines several measures for protection interests damaged from сorruption The implementation of such measures in system of the national law must assume number of the conditions.
Obligatory of them, are: legally installed anti-corruption measures and readiness of the national judicial system to competent examination of civil-legal cases on corruptions. In this connection, a consequent performance of the requirements of Convention of the Council of Europe on criminal responsibility for corruption (1999), as well as, UN Сonvention on corruption (2003) has a special prerogative.
Disregarding of the essential conditions and measures prior to the Convention of the Council of Europe ratification may determine permanent character of the actional procedure Primary allegations from victims of crimes connected with corruption may become just initial phase of the mass actional procedure. Attractiveness of such mechanism will be defined by simplicity of the non-performances of the right on judicial protection of aggrieved from corruption fact determination, as well as essential and obligatory to payment penalty sanction to account of the state budget. At the same time, it is important to notice that acceptance of the Convention is a litmus of the performance of earlier taken anti-corruption international obligations.

INTERNATIONAL CRIMINAL LAW

158-171 374
Abstract

The issue of international criminal process has been analyzed by scholars before the revolution in Russia took place. From that time there still goes on the discussion whether the criminal procedure law should be recognized as a branch of international law. There exist several points of view on this subject which are enumerated in the article. Discussion as to the place o international criminal procedure law is still continuing.
International legal process is a composite part of international process as a whole and is an institute of international criminal law. Several opinions of prominent scholars are given to support different approaches to this problem. The conclusion is that international criminal law and international criminal process compliment each other as they have the same goal.
Further on the sources of international criminal law are analyzed which are divided into three groups. Then the author tries to prove the independent nature of international criminal procedure law and lists the relevant circumstances.
But the main task the author sees is in locating the right place in international criminal procedure law for the institute of legal help in criminal cases.
The last part is devoted to this particular question. One of the conclusions the author makes is that this institute is to be recognized as comprehensive and complex institute of international criminal procedure law.

172-187 594
Abstract

The article examines the development of the international criminal responsibility of individuals before and after the Second World War. Attention is paid to the Nuremberg’s principles for international humanitarian law. Regulations of international humanitarian law in criminal legislation of Russian Federation are also considered. Modern conditions of the institute of criminal responsibility of individuals for committing international crimes are examined in connection with acceptance of the Roman statute of the International criminal court. The article suggests a comparative analysis of crimes, which fall under jurisdiction of the international criminal court and criminal legislation of Russian Federation.

INTERNATIONAL PRIVATE LAW

188-214 400
Abstract

This article addresses rather interesting issue of how accession of Russia to the World Trade Organization may result in beginning of competitive struggle between Russian and foreign patent agents providing services with regard to intellectual property. The most curious point is that beginning of such competition may be possible only due to the fact that in the course of negotiations on accession of Russia to the WTO and finalizing the Schedule of specific commitments of the Russian Federation on services, the Ministry of Economic Development and Trade of Russia forgot (in the proper sense of the word) about specific legal status of patent agents provided for by Russian regulation.

МЕЖДУНАРОДНОЕ И ВНУТРИГОСУДАРСТВЕННОЕ ПРАВО

215-232 307
Abstract

In the article the author touches upon the different aspects of the activities of the Supreme Court of Israel in respect of the occupied territories and simultaneously gives an overview of history of the Supreme Court in order to make the understanding of the issues easier.
One of the topics analyzed in the article is the judgments of the Court in respect of the Arab citizens of Israel. They were viewed as part of hostile exterior and thus the relation of the Court to them was greatly influenced by this fact. But author gives comprehensive analysis of this issue and elaborates on its different aspects.
Further on the author describes the activity of the Court in respect of the occupied territories which at times was quite controversial. The author points out several peculiarities in this respect (such as judiciary control over military authorities of the occupied territories) and describes and defines them. The author also states that there was a discrepancy between the actions of the Court with regard to Israel itself and the occupied territories. Apart from this, opinions of politicians and military men in respect of this question are also expressed in the article.
The author also discusses the challenges, which the Court had to face when the issue of the occupied territories arose. In particular the role of the applicable norms of international law (Geneva Convention) is analyzed as it could have been used in this situation and as the Court had used it. The author concludes that the Court used the norms of international law (with several exceptions) in the interests of the military authorities avoiding proper implications of the norms.

VOICES OF THE YOUNG

233-249 329
Abstract

Of vital importance is proper systematization of sources of law. Nowadays of more and more importance in the process of systematization of international law sources becomes the modern means o communication, analyzes, classification and search of information. One of the most practical means nowadays to obtain complete legal information is the use of special electronic legal database on international law. Electronic legal database is a method of systematization that is an ordering of present international legal sources of law. Such method of systematization make it possible to find and to construe correct all relating to the legal issue of regulation rules of international law. Use of electronic databases as a mean of systematization make it easier and practical convenient to apply rules of international law.
Use of electronic databases in systematization of rules of international law is one of the primary tasks of UN. This is vividly confirmed by the practical result in this field by UN. In November 2001 the task group on informational and communication technologies was formed to develop integration of informational technologies in the UN activities. The UN General Assembly Resolution 56/183 (21 December 2001) endorsed the holding of the World Summit on the Information Society (WSIS) where this issue is also being discussed. The following Tunis Agenda for the Information Society invited the Secretary-General of United Nations to convene a new forum for multi-stakeholder policy dialogue called the Internet Governance Forum (IGF).
Further development of the systematization of rules of international law in this respect through the electronic databases is a unique mean and condition to make it more effective the international lawmaking, elimination of repetitions, gaps and contradictions in international law and what is of vital importance to make the application and construction of rules of international law easier and suitable. Only use of such related electronic legal databases will make it simple to take into consideration and carefully analyze all the possible rules of law related to a certain international legal issue.

BOOKSHELF

250-261 339
Abstract

After the collapse of the Soviet Union all newly formed states faced the challenge of the development of international law. Georgia was not an exception and the absence of the basis for the development of international law had an overall negative effect.
But still there are authors who furthered the science of international law in Georgia. One of them is L. Aleksidze, a prominent figure in the sphere of international law who had a great impact on it and nurtured new generations of international law scholars.
One of the fastest developing branches of international law in Georgia is human rights, represented by Korkelia K., Kurdadze I., who wrote several books on this topic. Also branches of international humanitarian and criminal law should be noted as one of the leading spheres of international law in Georgia. As far as criminal law is concerned such topics as extradition, International criminal court are being discussed.
International legal aspects of Georgian foreign policy are also being researched and the scholars point out the necessity of elaboration and adoption of a new program of foreign policy of Georgia.
In Georgia there are also many journals dealing with the topics of international law such as “International Law”, “Law”, “Almanakhi”, etc. The number of publications dealing with international law is constantly increasing.
As the conclusion it is stated that national legislation of Georgia should stand up to the standards of international law, but in order to do this the relevant issues should be researched and implemented.

262-265 582
Abstract

The author of this book is Doctor of laws, who is also a well-known scholar in the sphere of international private law. She is a leading expert on the issue of jurisdictional immunity of states and moreover took part in drafting of national laws related to this issue.
This question is of high both theoretical and practical importance. The topic is very acute for Russia as due to the fact that the tendency is shifting from the concept of absolute immunity to the concept of limited immunity. This increases the number of lawsuits in international courts against Russia.
The book by I.O. Khlestova is a successful endeavor to conduct the fullscale research of the issue of jurisdictional immunity as this issue requires the elaboration of the new approach to the solution of the existing problems. The author offers an in-depth and comprehensive analysis of this issue and apart from this also makes convincing conclusions and interesting suggestions.
The research conducted by I.O Khlestova is the best in our doctrine of international private law in respect of the issues of jurisdictional immunity on the contemporary level.

266-271 649
Abstract

At the end of 2007 there was issued Collection of Reports by International Narcotics Control Board (INCB), the task of which is to monitor the execution of treaties in the sphere of drug control. The Collection also includes INCB’s recommendations to the UN and other international and regional international organizations. Though it is necessary to mention that there were issued not reports themselves but introductory chapters to these reports.
The wide variety of topics of the reports, which touches upon issues of legalization, globalization, etc. testify to the fact, that INCB’s approach to this problem is full-scale and its intentions are serious. It is very well noted that the tempo of life is accelerating and so the situation when the drug-related conventions were signed is rapidly changing. This poses a threat to the effective execution of treaties on the national level. The other major problem in drug control is the use of Internet in the promotion of drugs, as it poses no problem to find there the recipes of the simplest drugs. All these topics and many others are covered in the Collection.
It is important to mention that the issue of this Collection of reports became possible due to the efforts and hard work of A.V. Fedorov, who is a well known scholar in the sphere of different aspects of crime control.

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