International Legal Doctrine Research Articles

Имплементация международно-правовых норм об ответственности за экоцид в российском уголовном праве

The article reveals the concept of "implementation" based on the study of international legal doctrine. The correlation of this concept with such types of "penetration" of international norms into the domestic sphere as transformation, incorporation, reception,etc. is shown. Special attention is paid to ecocide as a result of the implementation of international law in the norm of responsibility for this crime in the Russian criminal law. It has been established that the process of implementing the norms of international law on ecocide is complicated by many problems, the main of which are: a) a large number, diversity and intensive dynamics of relevant international norms; b) the choice of optimal ways of implementation; c) maintaining a balance between the law and policy. The State, as the main (primary) subject of international law and a monopolist in the development and implementation of criminal policy, fully possesses the means to resolve these problems.

O estabelecimento comercial, enquanto objecto de negócios jurídicos, em Angola

This research studies the commercial establishment in Angola, as a unitary object of legal business, that is, leasing and transfer and its respective legal framework in Angolan law. The scope of which is to characterize the commercial establishment in a common sense, identify the legal transactions inherent to it and determine its legal regime in Angola, considering that its legal nature is a vexing question in domestic and international legal doctrine. In accordance with the proposed theme, the issues raised and the recommended objectives, this research is methodologically bibliographical, documentary and survey-based. Commercial establishments in Angola are subject to leasing and transfer, whose legal framework is still outdated, limited and ineffective given the current legal, economic, business and social context of the country and the world. Hence the reason for the existence of some dubious and controversial legal-doctrinal issues and, consequently, some legal-contractual problems, in cases of leasing and transfer of commercial establishments in Angola. For example, issues and problems relating to the transmission of credits and, above all, debts resulting from the commercial activity of an entrepreneur or business company through a commercial establishment that has already been leased or transferred. Therefore, this research proposes some essential theoretical-practical guidelines for a better approach and regulation of leasing and transfer in Angola. Therefore, there is a need to update or reform the legal framework on this matter in Angola to solve the problematic of this research.

Параллельный импорт как актуальная проблема правового обеспечения государственного регулирования предпринимательской деятельности

The significance of this research topic emerges from the evolution within the legal framework support-ing state regulation of entrepreneurial activities, alongside significant shifts in the economic sphere of state affairs. These shifts prompt a legislative response to new challenges. A focal issue is the cessation of partnerships between Western corporations and the Russian market, coupled with the rise of «parallel imports». This phenomenon entails the legal purchase of goods listed by the Ministry of Industry and Trade from abroad, even if they originate from countries that lack amicable ties with Russia. The purpose of the study is to consider one of the urgent problems of legal support for state regulation of entrepreneurial activity – the legislative technique of legalizing parallel imports. Materials and methods. The research materials were normative legal acts of the Russian Federation, monographic studies and scientific articles by domestic theorists and practitioners on the legal support of state regulation of entrepreneurial activity. The main methods of scientific research include the normative and comparative legal method. Results and conclusions. It should be noted that the system of legal regulation of parallel imports and exemption from liability of the business sector for its implementation has formed a number of problematic issues in practice. In particular, according to legislative innovations, the ban on the use of intellectual property objects through their parallel import is a thing of the past, however, the wording and legal structure of the changes that have entered into force are of concern, the literal interpretation of which allows us to conclude that at the moment any entrepreneur can freely adapt the methods of acquiring intellectual property objects of foreign rightholders for further resale whose product is subject to parallel import, which does not correspond to the main objectives of the law. In general, considering the controversial nature of parallel imports, it should be concluded that this procedure is not new to international legal doctrine and is applicable in the civil turnover of many countries. The purpose of legalizing parallel imports is seen in providing support to the domestic business sector through limiting a number of economic benefits for foreign producers, which is temporary.

ABOUT SOME APPROACHES TO THE INTERNATIONAL LAW IN BRITISH SCIENTISTS’ RESEARCHES (PART I)

The purpose of the research. At the present time there is a shortage of scientific researches devoted to the concepts of the international law of foreign countries. At the same time, there is a significant need for such works, since any interstate cooperation, as well as confrontation, requires a detailed knowledge of the approaches to the international law of the relevant country. In this context Great Britain stands out. Positions of Great Britain continue to have a significant impact on the formation of the approaches to the international law of the Anglo-Saxon legal family states. Largely due to the ideas of the British the foundations of the pan-Western system of views on the international law were laid. This article deals with the interpretation of various international law issues by the representatives of scientific schools of several universities in Great Britain. The positions of these scientists concerning the essence and meaning of the international law, its application are of interest from the point of view of their comprehension on the basis of Russian approaches. That is the purpose of this article. Results. The approaches of British scientists to the international law considered in the article demonstrate both similarities and differences in comparison with the domestic international legal doctrine. These include: the vision of the international law as simply a set of rules or as a complex system; the role of normativity in the international law; analysis of some of the weak and strong sides of the international law; international law criticism of the foreign policy courses of certain countries, including Great Britain and the Unites States; consideration of Russia as a country that supports special, far from Western, approaches to the international law.

Problematic issues of international legal regulation of the use, reproduction and protection of specially protected flora

The article is devoted to the study of some aspects of international legal regulation of the use, reproduction and protection of specially protected flora. Unfortunately, the expansion of the scope of international environmental law does not adequately reflect the state of the environment. The problems of climate change, the destruction of the Earth’s ozone layer, deforestation, desertification, conservation of migratory species of animals, fish and birds, transboundary water and air pollution, natural disasters, preservation of biodiversity and the natural heritage of mankind, which directly affect flora, have now become global. Everyone in the world is interested in a high-quality environment, careful use of natural resources and fair distribution of income from natural resources. However, the current international environmental law is not a sufficiently perfect tool to address the problem of regulating the use, reproduction and protection of specially protected plant species. In particular, it is not properly systematised and codified. The author analyses that the problem identified in the article is not solved by the existing international legal acts of a general nature - the Stockholm Declaration on the Environment, the Rio Declaration on Environment and Development (1992), and the World Charter for Nature (1982). These documents are not legally binding and are not systemically important for international environmental law. Other international environmental legal acts are not universal. They were adopted at different times, by different actors, and contain many gaps. Often, the documents are declarative, contradictory and not based on the modern international legal doctrine of environmental law development.

Termination of Citizenship of the Russian Federation because of Crimes or Actions that Pose a Threat to National Security: A Comparative Legal Aspect

The formation of a new direction of state policy on the termination of citizenship of the Russian Federation is conditioned by the need to ensure the national security of the country in the modern world. The international legal doctrine in the field of revocation of citizenship states that this measure will never be able to comply with modern international human rights law, while many Western states turn to this institution not only when perpetrators commit terrorist crimes, but also in all types of treason. The objectives of the study are a comparative legal and historical analysis of the regulations on the termination of citizenship for crimes and actions that infringe on national security in Russia and a number of countries in which this practice exists. The purpose of the study is to analyze trends in the formation of Russian state policy in this area. The methodological basis of the research is the use of general scientific and private scientific methods of cognition, including historical and formal legal ones. The authors conclude that the termination of citizenship is a de facto sanction. Punishment in the form of revocation of citizenship can be a deterrent in conditions of constant (often uncontrolled) increase in the Russian population due to migrants. Termination of citizenship as an additional criminal law measure to the main type of punishment should be applied only by the court, accordingly, such a sanction should be fixed directly in the criminal law. The authors point to the need to modernize the legislation on citizenship of the Russian Federation, as well as to expand the list of types of penalties provided for by criminal law, provisions on termination of citizenship for committing specific crimes and actions that pose a threat to national security.

Constructing Kurdish Statehood in Northern Iraq: The Primacy of Traditional Statecraft over International Law

ABSTRACT: This paper analyses the long-running debate between the oft-opposed international legal/political doctrines of self-determination (maintained by the Kurds) and territorial integrity (advocated by Iraq, Turkey, Iran, and Syria) to conclude that the latter trumps the former. The author examines international legal practice regarding the UN, the Helsinki Final Act of 1975, various ICJ decisions regarding former Yugoslavia and Africa, the international legal doctrines of sovereignty, succession and uti possidetis, among others, to reach this conclusion. However, there is nothing in international law that prohibits successful secession as the cases of Eritrea and Kosovo, among others, illustrate. Nevertheless, either the secession must be won in war or accepted peacefully by the original mother state. Neither has occurred in the case of the Kurds. Remedial secession and internal self-determination also offer more flexible interpretations of the applicability of self-determination, but do not constitute international law or detract in any way from the conclusion that territorial integrity takes precedence over self-determination. Thus, international law only plays a secondary role in attempts to solve the Kurdish predicament. Traditional power politics remains the primary solution to the Kurdish predicament. However, by successfully building rudimentary state institutions, the KRG has managed to stake a claim to autonomy and even nascent statehood.

Reinterpretation of Jurisprudence of the Employment of Force: An Analysis Based on International Treaties, International Legal Precedents and Doctrines

The employment of force has always been a significant concern in international law. The advancements in science and technology, along with the diversification of combat methods, has significantly enriched the connotation and extension of the employment of force and its related concepts. Although the employment of force is no longer confined to weapons, it is essential to uphold the principles established in the UN Charter and essential international legal precedents. On that basis, it is important to consider the specific military conflicts currently taking place, which raises questions regarding the legality of the employment of force and the resulting responsibility in international conflicts. In terms of legality, the employment of force is generally forbidden in the UN Charter, with two exceptions: self-defense and actions taken by the Security Council. Nevertheless, the legality of these two situations remains ambiguous and requires further clarification through international treaties and legal precedents. Regarding responsibility, while states and individuals may be responsible for the consequences of armed conflicts in certain circumstances, the issue of attribution in armed conflict necessitates further discussion and analysis. This article will use two methods, legal analysis and case study, to illustrate the above problems.

Hidden in Plain Sight: International Law and Marxist Praxis in the Life and Works of Merlin M. Magallona

Abstract Through symptomatic reading, we analyze the visible and the invisible – the explicit and the implicit – in the works of Filipino international legal scholar Merlin Magallona (1934–2022). We argue that Magallona's international legal thought was rooted in Marxist theory and practice and honed through the mode of production debates in the Philippine communist movement during the 1960s. Specifically, he developed a critique of the neocolonial division of labour and produced a materialist reading of international legal doctrines through “Postcolonial Self-Determination” – a synthesis of the antinomy of positivism and self-determination. In practice, his Third World Marxism led him to support the NIEO and resist UNCLOS through constitutional litigation based on the imperialist Treaty of Paris of 1898. Magallona's critique and praxis suggest new forms of resistance to the new imperialisms and underscore the imperative of a practice turn in Marxist international legal theory.

International Legal Regulation of the Problem of Protecting the Environment from Radioactive Contamination

This article deals with modern actual international legal problems of ecological and nuclear law. In the frames of conducted research the special emphasis was made on, that in the modern interstate system is required a new codification of common international law norms, as well as initiation of the process of regional rulemaking.Aim. The main intention of research is search for solutions the problems protecting the environment from radioactive contamination in the context of increasing the effectiveness of the mechanism of international legal regulation in the epoch of modern international relations.Tasks. To determine the relevance and specificity the actual international legal problems of protecting the environment from radioactive contamination in the context of increasing the effectiveness of the mechanism of international legal regulation in the 21th century.Methods. Within the framework of this study, using the methods of studying normative legal acts and international legal doctrines, as well as content analysis, the features of the functioning of the mechanism of international legal regulation in the field of environmental protection from radioactive contamination are revealed.Results. During the study, the author concludes, that in the light of today’s threats and challenges, it is necessary to try to develop legally significant ways out of the crisis associated with solving international legal environmental problems of preventing nuclear damage, as well as eliminating and reducing the negative consequences of its impact on the state of the natural environment. On of the justified ways to solve threes problems is the reform of international legal consciousness in general and in the areas of international environment law and nuclear law, in particular. In the modern interstate system, it seem that a new codification of the norms of general international law is to required, as well as the initiation of a process of regional law-making.Conclusion. Summing up the results of the study, the author of investigation gives his findings and conclusions regarding the resolution of these problems in this area of international legal regulation. In particular, the article determines the validity of the assertion that in the context of modern threats and exports to international peace and security in the 21st century, a qualitative renewal of international legal consciousness, its enrichment and nourishment with new scientific ideas and well-thought-out concepts that can bring international law out of crisis since the legal consciousness that exists today does not meet modern realities and, relying on it, it will be extremely difficult to ensure the effectiveness of the well-coordinated work out of international interstate system.

Territorial relations in the South China Sea in the international legal doctrine of the Peopleʼs Republic of China

Розвиток міжнародного морського права, відповідна діяльність міжнародних судових установ, а також їхня відповідність специфічним національно-правовим доктринам вимагають правого аналізу. Одним з останніх важливих міжнарод­них судових рішень у сфері морського права було рішення Постійної палати третейського суду у Гаазі у справі № 2013-19 від 12 липня 2016 р. щодо спору Філіппін проти КНР про невизнання так званої китайської "девʼятипунктирної лінії" і відповідного незаконного будівництва штучних споруд. Водночас КНР не визнала рішення Постійної палати, а китайські науковці вибудо­вували відповідні правові обґрунтування для цієї позиції. Ситуація є схожою з невизнанням рф рішення цього самого судового органу щодо націона­лізації власності українського "Нафтогазу" у Криму і відповідно потребує на дослідження. У статті застосовано порівняльно-правовий метод, метод юридичного аналізу, історичний метод. Для китайсь­ких юристів-міжнародників проблема обґрунтування територіальних інтересів КНР у водах Південно-Китайського моря з погляду міжнародного права разом з питаннями реалізації ініціатив "Морського шовкового шляху" та "Полярного шовкового шляху" становить надважливий пріоритет державного значення. Разом з тим Постійна палата у Гаазі відкинула низку необґрунтованих належним чином аргументів КНР, зокрема існування його "історичних прав", історичних вод, законність "девʼятипунктирної лінії", право одноосібно вида­вати дозволи на спорудження штучних островів, споруд, геологічні роботи в межах спірних морських просторів.

Anticipatory consent to military intervention: analysis in the wake of the coup d’état in Niger in 2023*

ABSTRACT Following the coup d’état in Niger on 26 July 2023, the situation in Niger remains tense. However, it is not the coup against a democratically elected government itself that attracts attention from an international law perspective, but the threat by the Economic Community of West African States (ECOWAS) to intervene militarily in Niger to restore the pre-coup balance of power. The international legal assessment of ECOWAS’s threat to use force not only raises common questions within the doctrine of ‘intervention by invitation’, but also highlights the relevance of a problem about which there is little clarity in international legal doctrine – the problem of forward-looking intervention treaties containing anticipatory invitations. Using the case of Niger as a starting point, this article aims to examine the legal concept of anticipatory intervention treaties in the jus ad bellum, before ultimately applying the results of this legal analysis to the case of Niger.

The Importance of the Political and Ideological Factor for Understanding China’s International Legal Doctrine

The Importance of the Political and Ideological Factor for Understanding China’s International Legal Doctrine

Genesis of legal cooperation of international criminal courts with states

We are examining the Institute of Cooperation between international criminal courts and states. By analyzing international legal doctrine, we have identified the main stages of development in international criminal justice. The influence of the humanist values of the 19th century and various pragmatic views and principles of international criminal law norms evolved as part of the international legal system, introducing prohibitions on certain criminal activities, including war crimes, crimes against humanity, and genocide, is shown.The Nuremberg and Tokyo International Military Tribunals were considered crucial benchmarks in the evolution of international criminal law. The International Military Tribunal for the Trial of Major War Criminals of European Countries has until now been created, as follows from Article 1 of the London Agreement, to try war criminals whose crimes are not connected to a specific geographical location, regardless of whether they are prosecuted individually or as members of organizations or groups, or in one or another capacity. It is shown that both Tribunals were historically necessary to carry out retribution for mass crimes committed by high-ranking military and civilian officials of Nazi Germany and Japan during World War II. It was noted that both Tribunals were subjected to fair criticism - both from the participants and later - for the legal imperfection of their institutional basis, selective administration of justice, and the retroactive effect of some essential material norms of criminal law.It was analyzed that the institution of cooperation was revealed in detail in the activities of the International Criminal Tribunal for the former Yugoslavia (from now on - ICTY) and the International Criminal Tribunal for Rwanda (from now on - ICTR). Thus, the ICTY and ICTR were created based on resolutions of the Security Council, which, acting in accordance with Chapter VII of the UN Charter, decided that states should fully cooperate with these bodies of international criminal justice.The Department of Private International Law is shown as one of the divisions of the International Court of Justice, which, among other things, “resolves extremely important and nowadays most relevant extradition disputes and tries political criminals and anarchists. It was emphasized that the court should be independent, both from the parties whose case it decides and from any political movements and opinions in general.

Сохранение и адаптация договора при изменившихся обстоятельствах: интеграция доктрины hardship в гражданское право Российской Федерации

The article is devoted to the study of the necessity and possibility of integration of the international legal doctrine of hardship into the Russian civil law. The legal mechanisms provided by the civil legislation of the Russian Federation for overcoming the negative consequences of unforeseen external circumstances are considered. Advantages of preservation and adaptation of the contract at occurrence of such circumstances are proved. The characteristic of the international legal doctrine of difficulties in performance of the contract (hardship) is given. The ways of drawing up and standard forms of a hardship clause, proposed by the International Chamber of Commerce, designed to establish the possibility of flexible adaptation of the contract to the changed conditions, have been investigated. A comparative analysis of the doctrine of hardship and the institutions of a significant change of circumstances, force majeure. The conclusion on the expediency of integration of the doctrine of hardship in the civil law of the Russian Federation is drawn and appropriate amendments to the legislation are proposed.

MODERNISATION OF THE LEGAL REGULATION OF TEMPORARY RESTRICTIONS ON THE EXERCISE OF PRIVATE RIGHTS IN UKRAINE ON THE WAY TO ECONOMIC INTEGRATION

The subject of the study is the theoretical and applied aspects of legal regulation of certain economic relations, in particular, the temporal restrictions on the implementation of private rights in Ukraine. Methodology. General scientific and special legal methods were used in the research process. Quantitative and qualitative parameters of organisational, legal and economic measures aimed at modernising the legal regulation of time limits on the exercise of private rights in Ukraine were determined with the help of the analysis. The synthesis ensured the clarification of the common features of economic and legal phenomena, which is a precondition for the modernisation of the legal regulation of time limits for the exercise of private rights in Ukraine. The comparative legal method allowed to identify common and specific features of the normative regulation of time limits on the exercise of private rights in different states (taking into account legal and economic features). The formal-legal method made it possible to draw conclusions on the effectiveness of the normative fixing of time limits on the exercise of private rights in the civil legislation of Ukraine and to make relevant proposals for changes in the civil legislation. The purpose of the study is to determine the state of legal regulation of time limitations on the exercise of private rights in Ukraine and to determine the prospects of its modernisation for the sake of economic integration (through the study of legal and economic aspects of the specified phenomenon). The results of the study showed that the state of legal regulation of time limits on the implementation of private rights in Ukraine on the way to economic integration creates the conditions for its modernisation within the framework of general and special legal regulations. Conclusion. The basis of the civilised development of the modern world community is the establishment of civilised rules for the circulation of relevant property goods. From this point of view, among the social relations that are the subject of civil law regulation, the most important are property rights and non-property rights related to them (which have no economic significance, but by their very nature play an important role in ensuring civil circulation). The Civil Code of any state is a basic legislative act regulating a significant part of social relations. The modernisation of temporal categories in various institutions of civil law can be characterised from the standpoint of the concept of updating the Civil Code of Ukraine, as well as from the study of the state and the need for improvement of other legal structures, in particular, from the standpoint of international jurisprudence. The temporal characteristics of the law are characterised through the prism of the limitation of the subjective right to intellectual property, which is generally consistent with the normative prescriptions contained in intellectual property law as a subdivision of civil law. The problematic aspects of the unification of intellectual property relations in the general provisions of the Civil Code of Ukraine and special legislation are identified, and proposals for the legal regulation of such relations are made in the light of international legislation, judicial practice and legal doctrine.

МІЖНАРОДНЕ МІГРАЦІЙНЕ ПРАВО: ІСТОРИКО-ПРАВОВІ АСПЕКТИ СТАНОВЛЕННЯ

The article examines the historical and legal aspects of the emergence and development of international migration law. An attempt is made to study the patterns of evolutionary development of international legal regulation of relations in the field of international migrations, the place and conceptual foundations of international migration law as a separate branch of international public law. The growth of migration flows, their acquisition of new quantitative and qualitative characteristics, being determined by economic, ecological, military-political, demographic and other factors, exerts a strong influence on all aspects of the functioning of the world system, becoming an indispensable component of many spatial changes that determine the essence of territorial identity social groups and form a new culture of thinking, which is based on various social norms, including the principles and norms of international law. The most obvious and effective way of regulating international migration, taken in the dynamics of qualitative changes in its trends and forms, social relationships, socio-economic and political-legal processes, development of technical capabilities of means of communication, is its international legal regulation, carried out as universal and at the regional levels of interstate cooperation, taking into account the evolution and historical development of international legal doctrine and practice. At the same time, the accuracy of the expected assessment of the results of international legal regulation directly depends on the adequacy of the understanding of the legal nature, essence and place of international migration law in the general legal system. It should be fundamental to understand and accept the thesis that the ideology and philosophy of legal regulation of relations in the field of international migration is based on the thesis of the need to find and ensure a balance between state sovereignty - the cornerstone of the international legal order and freedom of movement - one of the basic human freedoms. These basic elements remained practically unchanged during the entire historical period of international legal regulation of relations in the field of international migrations, although the level of tension between them and the ways of articulation of the latter changed throughout the history of international law at the doctrinal level and in the practice of state approaches.

The definition of armed conflict in cyberspace

The information technologies development affects all spheres of human activity, including the military activities of States. The level of military information technologies development allows us to talk about a new theatre of military operations — the cyberspace. The likelihood of an armed conflict in cyberspace is also confirmed by the Tallinn Manual, developed in 2013 and updated in 2017 by experts from the NATO States with the participation of the International Committee of the Red Cross. In the context of the high probability of military action in cyberspace, the starting point for applying international humanitarian law to such situations is the definition of a cyber armed conflict. The research of this topical issue of modern international law of armed conflicts is the subject of this article. The author pays attention to the legal definition of cyberspace in general, and to related problems. In the absence of an international treaty regulating this area, it was suggested that such treaty should be developed and adopted. Because there is no definition of “classic” armed conflict in international humanitarian law, this article offers the author’s definition of “classic” armed conflict based on the analysis of the law of armed conflicts, relevant practice and international legal doctrine. Based on this definition, on detailed analysis of the relevant norms of international law, including the norms proposed by the Tallinn Manual on International Law Applicable to Cyber Operations, on the doctrine of international law, and taking into account the specifics of cyberspace, the author gives a comprehensive definition of armed conflict in cyberspace. The author substantiates the need to use the concept of cyber armed conflict, and not the terms “cyberwar” or “information war”. This article focuses on and evaluates the relevant provisions of the Tallinn Manual. The author also made suggestions on possible solutions to the problems discussed in this article.

CRITICAL ASSESSING THE PRINCIPLE ACCORDING TO WHICH INDIVIDUALS CANNOT BE REGARDED AS SUBJECTS OF INTERNATIONAL LAW

This study aims to analyze and interpret the clause under which individuals are not the subject of international law, so it studies their position under international law. This study looks into the origin and evolution of the state as the subject of international law. It studies the related theories associated with the emergence and acceptance of the state as the subject of international law. The next aspect of this study is to analyze and discuss the international legal personality doctrine. State recognition is the cornerstone in the study of international law, and this aspect forms a vital part of the discussion on state sovereignty and legal personality.

Legal doctrine as human rights ‘practice’

Abstract‘Practical’ approaches to human rights hold that analysis of legal human rights must attend to the practice(s) of international human rights law and that the nature and justification of international human rights is best determined by attending to their role(s) in international human rights law’s system of normative practices, not analogous moral rights outside it. These core tenets plausibly explain the apparent normativity of international human rights law despite controversies about the status of many ‘rights’ in the ‘International Bill of Rights’. Yet plausible practical approaches require clear and compelling accounts of which practices qualify as human rights practices. Most existing accounts view ‘responses’ to claims made in the name of the international legal community as key to the identification of human rights. Activities by domestic governments and non-governmental actors qualify as relevant practices. While understandable, these ‘responsive’ accounts of practice create more problems than they solve. This work accordingly promotes a largely unexplored account on which ‘human rights practices’ are strictly defined by international legal doctrine. This ‘doctrinal’ account of practice is most likely to maintain practical approaches to human rights’ potential benefits without generating an unduly expansive rights register or adopting strong theoretical commitments about the nature of law.