International Legal Position Research Articles

International Legal Outer Space Policy of the United States of America

The new outer space natural resources policy of the United States, outlined between 2015 and 2020 by national legislation (including the U.S. Space Resource Exploration and Exploitation Act of 2015 and the U.S. Executive Order of April 6, 2020) and in 2020 also by the U.S.-initiated separate international Artemis Aсcords, is meant to be consistent with the universal Outer Space Treaty of 1967, the basic source of international space law. This policy, which opens access for private investors to natural resources of celestial bodies under the American legislation has commanded a wide international attention not only because of the exhilarating data on the high density of deposits of precious metals and other highlydemanded natural resources on some asteroids, but also because of the question raised during the workings of the UN Committee on the Peaceful Uses of Outer Space: does this policy violate the US obligations under international law according to which the use of outer space, including celestial bodies, constitutes "the province of all mankind"? Or is it more rational for other states to create a similar international format of selective cooperation in order to be among the first to exploit the wealth of nearby celestial bodies without devoting political efforts to collectively establish international offense committed by the United States? Can a national legal and international legal response of Russia, China and other states, which are not subordinated to the United States, supported by their technological and industrial outer space infrastructure applicable to the outer space natural resources activities, become an effective incentive to negotiate a universal special international legal regime? It appears to be feasible since it is necessary to ensure conflict-free and, consequently, economically stable outer space natural resources activities corresponding to the national interests of the majority of states even with different international legal positions.

International Cooperation of BRICS Countries in the Field of Forced Migration: Topical Issues and Prospectives

Introduction. International law acts of BRICS countries enshrine their attachment to enforcement of the international cooperation in the field of population, in particular migration. The rise in the number of forced migrants on their territories as well the accession of new States to BRICS explains the topicality of the research into the particularities and prospects of BRICS countries’ cooperation in the sphere of forced migration. Meanwhile the international law acts adopted by BRICS countries do not enshrine their unified position as regards general principles of their cooperation in the sphere of forced migration.Materials and Methods. The conciliation theory according to which creation of international law norms results from the reconciliation of international legal position of its subjects serves as the theoretical framework for the present research. While exercising autonomous international legal policy, each State aims at enshrining the principles of its foreign policy in the international law acts. International legal positions of States are enshrined in their treaties, national legislation and unilateral acts. The article contains the results of a comprehensive comparative analysis of international legal positions of BRICS countries as regards international law norms governing the legal status of forced migrants. The subject of the research includes universal treaties, BRICS countries’ international law acts, national legislation and unilateral acts.Results. BRICS is an intergovernmental institution, which is not de jure an international organisation. The acts adopted by BRICS countries are joint unilateral acts enshrining their unified positions on international law. International cooperation of BRICS countries in the sphere of forced migration is based on principles of rule of international law and multilateralism as well as their coincident and similar positions on interpretation and application of international law norms governing the legal status of forced migrants. BRICS international law acts enshrine the international law concepts applicable to the international cooperation in the field of forced migration.Discussion and Conclusions. Conciliation of international law positions of BRICS countries as regards interpretation and application of international law concepts of “durable solution to the problem of forced migrants”, “responsibility sharing”, “solidarity”, “common but differentiated responsibility” as well as other international law concepts upon which the international cooperation in the field of forced migration is based should be considered a prospective area of their international cooperation.

Role of Contingency in Formation of International Law

INTRODUCTION. A group of foreign international scholars has recently published a collective monograph – “Contingency in International Law: on the possibility of different legal histories” [Contingency in International Law…2021]. The starting point of this work is the question why international law is as we know it today, and whether it could be different. The problem of possible alternative ways for development of international law calls challenges the necessity of the current state of international law and urges to research the interrelation among the power of international law itself, historical context and wills of subjects involved in international law-creating.MATERIAL AND METHODS. The research material for the present article is the collective monograph “Contingency in International Law: on the possibility of different legal histories” edited by I. Venzke and K.J. Heller. The study of the presented ideas is based on general scientific methods and private legal methods, as the historical and legal approach.RESEARCH RESULTS. The development of a national international legal scholarship of the theory of international law sometimes needs an intellectual impulse, a bold statement of questions that challenge the dominant theoretical principles. In this regard, the question on the possibility of different ways of developing international law due to a variety of factors, could be a trigger for rethinking positivist attitudes in the Russian theory of international law. The intention in revising the classical theses does not imply rejection of established legal positions, but, on the contrary, it necessitates fruitful reflections on traditional tenets. This assumption is illustrated with the concept of the international legal policy of the state, which originates from the classical theory of coordination of wills, and at the same time makes a number of assumptions or explanations which could answer questions about contingencies in formation of international legal norms. Relying on the materials of the book edited by I. Venzke and K.J. Heller the article provides outlook on questions about chance and regularities in determining the content of international law, about role of context in the creation and development of international law, about the sovereign wills and role of contingencies and extra-legal factors in the concept of international legal policy.DISCUSSION AND CONCLUSIONS. In contrast to the theory of coordination of wills, which is based on strict positivist grounds, the concept of the international legal policy of State assumes influence of extra-legal factors for arrangement of international legal argumentation of States. For example, the problem of context is of great importance in determining the possibility of legitimizing certain international legal positions of State. The arguments of States as such with references to norms of international law remain fruitless outside certain context (including present content of international law, current state of international relations, topics on the international agenda). This is because legitimated legal norms fix the current results of coordination of wills among States, which depend on interaction of legal and nonlegal factors. But it is also important to understand limits of assumptions about impact of certain factors on the content of international law. So, on the one hand, the role of context should not be overestimated, since international law does not succumb to conjuncture, but develops consistently. At the same time, by studying international legal policies of States, one should avoid false determinism. It poses the risk to trace a wrong strategic line of State's legal arguments with over-shadowing ‘irrelevant’ facts. Thus, questions that open perspectives on seemingly solved problems make it possible to develop established doctrinal ideas in a new direction. However, it is necessary to take into account methodological limits of new assumptions for consistent development of contemporary national discipline of international law.

EVOLUTION OF CONSTITUTIONAL SYSTEM AND INTERNATIONAL LEGAL STATUS OF LUHANSK PEOPLE’S REPUBLIC BETWEEN 2014 AND 2022

This article analyzes in a formal-dogmatic manner legal acts regulating the functioning of the area of the Luhansk Oblast of Ukraine and the Luhansk People’s Republic established on it in the years 2014-2022. The analysis is done in the context of the people’s armed uprising of 2014 and the subsequent proclamation of the LPR and organizational changes within the LPR, as well as attempts to resolve the conflict through peace negotiations in Minsk. In the article, the author carefully reviews the legal acts and UN resolutions regarding the conflict in the Luhansk Oblast and compares the legal standing of 2014 with the legal status at the end of 2022 in an in-depth way, noticing the changes that have taken place in the constitutional system and the international legal position of the Luhansk People’s Republic in the analyzed period.

Hugo’s Moments, Maria’s Everyday Chores? Discords in the Search for Grotian Moments for Women’s Rights in International Law

Abstract This chapter would have liked to invite its readers on an exciting but breath-taking journey through the historical landscapes of international law, since ‘time immemorial’ a male-centred and, until the 1990s, almost exclusively male intellectual tradition and professional practice – at least in the eyes of the currently dominating historiography. Helas, the ambition had to be downscaled into a few rapid zooms, touristic snapshots in an impressionistic mode, on seven contexts in time and space in a hasty timeline from the eighteenth century to 2021. They reflect, merely as examples, women’s status in international law in diverse political, social and legal transformations or crisis. Some are representing moments of codification or the break-through of certain interpretations of women’s rights. Others are selected for their role in enabling women’s participation in decision-making or entry to international legal positions, or because they provide an example of women’s international activism for women’s rights. All of them might have preceded, followed, or in fact themselves constituted ‘Grotian Moments’ for ‘women’s rights’ – did they, and if not, why? Should they have? If yes, which ones and how, to what effect for ‘women’?

Ad hoc international arbitration is the key to improving Russian-Japanese relations

The subject. The article discusses the international legal positions of Russia and Japan that prevent the conclusion of a peace treaty between them and impede a radical improvement in relations, which is perceived as an urgent need for both sides.The purpose of the article is to show the fundamental differences in the official positions of the governments of Russia and Japan and suggest a fundamentally new diplomatic and legal solution to the long-standing territorial dispute among the states, which will result in finally breaking the deadlock.Methodology. The research is based on the methods such as historical research, formal logic, including analysis, synthesis, and modeling, as well as systematic, comparative and interpretation. Materials include national and international laws and scholarly articles, books relating to Russian-Japanese relations, as well as its international legal aspects.The main results, scope of application. The authors note that the end of the Cold War transformed Europe. Since that time there have been a reformatting of military alliances, the unification of Germany, reconciliation of the nations warring since ancient times. All these are based on the recognition of the inviolability of the outcome of the Second World War and established territorial structure. In comparison with Europe, it had smaller consequences in Asia. All previous dividing lines and lines of conflicts are preserved. Nothing was done to reunite the divided nations. Reconciliation by and large also did not happen. One of the burning problems has remained the territorial claims of Japan to Russia on the four islands of the Southern Kuril and the unresolved long-standing dispute over affiliation of the islands. The international legal position of Russia is that the legal status of the islands was determined by the results of the Second World War. Japan proceeds from the premise that the Islands historically belonged to it and the actual sovereignty of Russia over them does not change the case. Since the international legal positions of the sides do not have any common ground, it is pointless to argue about them or try to change them.Conclusions. In this situation the only possible wise and fair solution is to bring the dispute beyond the framework of bilateral relations for quite a long time, which will need to be used for their radical improvement. In the article the authors explain in detail how it can be done. In particular, it is proposed to establish a special Russian-Japanese international court ad hoc. The study explains and justifies its possible mandate, the procedure of formation and the role of the agreement establishing such a Court in the conclusion of a peace treaty between the sides. It is shown how and under what circumstances the activities of the Court can be successful and bring the desired results.

Preliminary Objections in the International Legal Proceedings as an Element of International Legal Policy of State

In modern international legal scholarship, preliminary objections are considered procedural means for preventing the consideration of an international dispute in a judicial proceeding. This approach is adopted in works on the classification of preliminary objections. However, preliminary objections must be examined not only autonomously within a concrete litigated case, but as an integral part of the international legal policy of the concerned state. Under the concept of international legal policy, every state must participate in the development of international law following its own special strategy for advancing its international legal positions on different issues. Through coordination of wills on the elaboration of international law, every state aspires to construct its strategy, which would persuade the international community of validity and necessity of an advanced view on certain international issues with minimal concessions to other views. International legal policy is pursued at every life cycle stage of an international legal norm from law making to interpretation, application, and dispute settlement. Preliminary objections can be considered elements of international legal policy on par with other actions and declared positions of the state in the international legal field. On the basis of the international legal policy perspective, this article explores the hypothesis about the interdependence between the raised objections and the outcome of the case. This work reveals that the preliminary objections present the attitude of the state to the international dispute or to the proceedings in general, but they are not a determinative factor for forecasting the states conduct in the proceedings, and most importantly, its compliance with a binding judgment. The review of the practice of International Court of Justice demonstrates that the raise of preliminary objections does not always indicate the weakness of the states international legal arguments for maintaining its standpoint in the judicial process nor predetermines non-compliance with the judgment. Concurrently, the examination of preliminary objections as an integral part of international legal policy on a concrete issue broadens the understanding of the states position in the dispute.

Научное юридическое наследие профессора Сергея Владимировича Шостаковича. К 120-летию со дня рождения

Are considered scientific heritage of the historian, lawyer and orientalist, professor of the Irkutsk university S. V. Shostakovich. Its role in reconstruction of the higher legal education in Eastern Siberia is noted. The main attention is paid to the analysis of historical and legal questions in research of antique Greece, the countries of the Middle East, Central Asia and China during modern and latest times. It is noted that S. V. Shostakovich made a scientific contribution in studying the legal dependent population and patriarchal family in Ancient Greece, problems of the feudal monarchy in Persia of the end XVIII – the first half of the 19th centuries, international law, a problem of exterritoriality of foreigners in China of the beginning of the 20th century, international legal position of the state Tannu-Tuva in the 20th of the 20th century. It one of the first considered also political and legal views of the prominent Russian diplomat A. S. Griboyedov. The conclusion is drawn that S. V. Shostakovich carried on scientific traditions of a historical and legal perspective of the Irkutsk legal school of the 1920th, made an original contribution to studying problems of history of state and law, a political and legal thought.

Measures Ensuring Security of Participants of Criminal Proceedings: International Legal Aspect

The article describes international legal positions ensuring the safety of participants in criminal proceedings. The international community has developed documents that provide states with unified and universally accepted legal provisions to regulate the statutory position of a participant in criminal proceedings. The national legislation should be brought in line with the global requirements. Generalizing the existing international legal instruments, the authors identify universal safety measures protecting participants in criminal proceedings. The protection of witnesses and victims is a guarantee of establishing the defendant’s guilt. Assistance in criminal proceedings facilitates the effective and timely collection of evidence.

EXPANDING THE POWERS OF THE TURKEY’S PRESIDENT: NEW LEGAL ORDER AND ITS CONSEQUENCES

The article provides a comparative legal analysis of the articles of the Constitution of Turkey in 1982 and amendments to it in the executive branch, which were submitted to the national referendum of Turkey in 2017. The consequences of the constitutional reform on the further democratic development of Turkey are analyzed, as well as the possible transformation of Turkey into a country with an authoritarian form of government. The article examines the work of Turkish and foreign researchers on the impact of the new political system on the independence of all branches of government, and analyzes the international legal position of the European Union on constitutional changes in the context of fulfilling the Copenhagen criteria for Turkey’s membership in the European Union and the possibility of closing negotiations on Turkey’s accession to the European Union. It is stated that under the 1982 constitution, Turkey was a parliamentary republic in which real power belonged to the head of government, and the country’s president performed mainly representative functions. The latest amendments to Turkey’s basic law were made after a referendum on September 12, 2010 to bring it in line with European Union standards. The referendum began the demilitarization of the 1982 constitution and changed the foundations of Turkish statehood, laid in the 1920s by the founder of the Turkish Republic, Mustafa Kemal Ataturk. In particular, the influence of the army on the political and social life of the country has decreased. It is said that by applying draconian laws and judicial repression the President seeks to reduce the influence of the democratic opposition, which will not have the courage or ability to challenge the growing authoritarianism in the country. For this reason, the party’s legal regime combines the full subordination of the judiciary to the executive with a combination of strategies to use judicial repression to demobilize all sources of opposition and to suppress any possible alternatives within the current political bloc.

An issue of legal personality of Kyivan Rus’ in Ukraininan law science

Problem setting. Legal personality of Kyivan Rus’ is very complex issue, which contains elements such as contract law, law of war, ambassadorial law, general position of the state in the international relations sphere. The condition of Kyivan Rus’ in medieval history can be determined only after analyzing researches of well-known scientists, who had different opinions on this subject. In spite of the fact that a lot of researches were made on this topic, there is no clear and unambiguous answer to the question: “was Kyivan Rus’ independent and equal subject of international law?” In our opinion, this topic is actual even nowadays, because without an analysis of the issue it is impossible to form a modern understanding of Ukrainian statehood and its features in different periods. Analysis of recent researches and publications. Valuable contribution to the research of Kyivan Rus’ position in international relations sphere were made by lots of scientists in areas of Ukrainian history and history of international law such as O. Zadoroznyi, P. Tolochko, O. Butkevich, A. Dmitriev, Y. Dmitriev, M. Kotlyar, V. Pashuto, D. Feldman, V. Butkevich, I. Shekera, O. Pavlenko etc. Target of research is to analyze and compare opinions of different authors on the issue of determining Kyivan Rus’ as legal entity of international law. To achieve this target these tasks have to be solved: to research and analyze modern scientists’ studies about the position of Kyivan Rus’ in international law sphere in medieval period; to compare scientists’ views on legal personality of the state and come to a certain conclusion on this issue. Article’s main body. In this article author analyzes different periods of Kyivan Rus’ existence, general position of the state in international relations sphere and opinions of different scientists on this subject. Also, the article provides a comparison of scientists’ views on the topic of legal personality of international law of Kyivan Rus’. Conclusions. Kyivan state in different periods of its existence was in various international legal positions. Despite of the fact, that features of international law of Kyivan Rus’ is a topic for controversy, Ukrainian and foreign scientists came to the conclusion that Rus’ was full-fledged subject of international law and after its collapse it revived in the Principality of Galicia-Volhynia, Zaporozhian Sich and the Cossack Hetmanate, Ukrainian People’s Republic, UkSSR (as independent UN member) and modern independent Ukraine.

The concept of international legal policy of the state as a new twist in the development of sociological approach towards international law

This article analyzes the concept of international legal policy of the state as the theory based on the sociological approach towards international law. The article traces the evolution of sociological concept of international law from the “Sociological Foundations of International Law” of Max Huber (1910 ) to such modern concepts such as the theory of interaction. The article examines the core theses of the concept of international legal policy of the state, which contribute to the development of sociological approach. According to this concept, each state implements the international legal policy for the purpose of influencing the content of the created, interpreted and applied international legal norms to legitimize the international legal positions and acts of the state in modern international law. It is suggested that the research of international legal practice of a particular state would allow determining the peculiarities of its national approach towards international law, assessing the implicit importance of its current stance on certain issues, and predicting further steps of international law. The conducted analysis allows systematizing the key provisions of the concept of international legal policy of the state, which did not receive due attention in the Russian legal doctrine. The determined peculiarities do not classify the concept to any particular vector of modern “sociological legal” research. Based on the formed characteristics of the concept, the author outlines prospects for its further development, taking into consideration modern international processes.

State Consent to the Provision of Humanitarian Assistance in Non-International Armed Conflicts

In light of repeated denials and obstruction of relief efforts by belligerent states, particularly when directed towards non-state armed groups designated as terrorist groups or justified as a legitimate response to the COVID-19 pandemic, this article provides a comprehensive analysis of the international legal position regarding the provision of humanitarian assistance in non-international armed conflicts. The article argues that although a general right of access has not crystalised, relief operations into territory under the effective control of a non-state armed group without state consent may be permissible with Security Council authorisation or otherwise, in appropriate circumstances, under the rules of state responsibility. More broadly, belligerent parties must abide by their legal obligations to ensure that the needs of civilians are met.

International legal position of Ukraine regarding the institution of permanent membership in the UN Security Council

International legal position of Ukraine regarding the institution of permanent membership in the UN Security Council

Vojska Srbije kao činilac međunarodne saradnje i evrointegracija

By concluding international agreements in the field of security and defence, the Serbian Armed Forces become a factor of international cooperation, which imposes certain responsibilities on the state and, in a special way, regulates the international legal position of their members. The paper presents the origin and development of the idea of the Common European Security and Defence, the obligations of the Republic of Serbia and the national legal framework that regulates this field. The goal of the EU Common Foreign and Security Policy, established by the Maastricht Treaty, is to preserve peace and strengthen international security in accordance with the principles of the United Nations Charter. To achieve this goal, the Common Security and Defence Policy has been developed, with the Union taking the leading role in peacekeeping operations and conflict prevention. The analysis of the content of national and international acts shows the evolutionary development of the idea on the existence of collective security, the acts for its implementation and the conditions necessary for the successful execution of the set tasks have been developed. Furthermore, comparative and historical methods have been used, as well as the method of deduction. It can be concluded that the new field of integration in Europe requires that the armed forces of the member states gain a role in international relations by initiating a series of institutional reforms and a change in the understanding of the social role of the military. International military engagement at regional and global level, along with bilateral cooperation, is a means of eliminating threats to national security while strengthening the capabilities of the national defence system. It is necessary to meet strict conditions for such engagement to be legitimate.

OCCUPATION OF BOSNIA AND HERZEGOVINA

The extensive diplomatic action with which the Austro-Hungari- an monarchy began in 1875 ultimately resulted in the Berlin Congress and the acquisition of a mandate to occupy Bosnia and Herzegovina. This act led to a series of changes, both in terms of the international legal position of the occu- pied territory, and in internal issues. The author deals with the circumstances that preceded the occupation of Bosnia and Herzegovina, the way in which it was carried out, as well as the internal changes that it led to, placing special emphasis on the organization of government and the legal system.

Explaining the influence of Maghrebi rivalries on Tunisian foreign policy

ABSTRACT Regional rivalries, as hostile and violent relationships, offer powerful explanations of foreign policy behaviour of non-rivals, yet are seldom explored. The article argues for why rivalries should be attended to by analysis of foreign policy, and then it demonstrates how they come to matter through an analysis of Tunisian foreign policy. The explanatory salience of rivalries is demonstrated by analysing how in the post-independence period up to 2011, the Morocco-Algeria and the Algeria-Libya rivalries conditioned the regional order in the Maghreb and directly influenced how Tunisian decision makers evaluated regional politics. The article explains how in reaction to rivalries’ effects, Tunisia incrementally developed a calibrated foreign policy posture defined here as one of distance with three features: signing on but not working to realise regionally-generated unity projects or alliances, committing to international legal positions concerning these rivalries, and consolidating ties with France. In so doing, the article shows how rivalry analysis complicates traditional explanations of Tunisian foreign policy that emphasise the idiosyncratic role of long-serving presidents’ personalities over an exclusionary political setting.

Exercise of The Right to Use the Native Language by Participants in Criminal Proceedings in The Context of International Legal Positions

Exercise of The Right to Use the Native Language by Participants in Criminal Proceedings in The Context of International Legal Positions

Legal status and organization of monastic community of Mount Athos after the First Balkan War

The end of the First Balkan War and the Greek occupation of the Holy Mountain opened a new chapter in its history. In the period between the two Balkan wars, the Conference of the Ambassadors in London discussed the future international legal position of the Holy Mountain and on its internal organization. The Athonite Community contributed to the conference by sending resolutions in which they express their opinion relating to the status of their community. The division between the monks led to the appearance of two different approaches to the problem. The first group of monks supported the existing legal order and insisted on the recognition of Greek sovereignty over the Holy Mountain. The second group of monks demanded reforms of existing organization and establishing of international authorities over the peninsula. During the period of the two Balkan wars (1912-13) the international position of Mount Athos was not regulated. The most important but also the most disturbing consequence of the events that are the subject of this study, is the existence of deep divisions among the monks of the Holy Mountain.

Status of Forces and Status of Mission Agreements under the ESDP: The EU's Evolving Practice

The conduct of EU military and civilian crisis management operations in third states within the context of the European Security and Defence Policy has presented the EU with new administrative and operational challenges in recent years, including the need to defi ne the international legal position of such operations and their personnel during their presence abroad. In some cases, the EU has entered into agreements with host states to determine the legal status of EU crisis management operations, while in other cases the application of already existing arrangements has been extended to them. The status agreements negoti- ated directly by the EU confer more extensive privileges and immunities on EU operations and their personnel than current international practice in this area would warrant. Despite opposition to this policy within the EU, it has remained in place under the two model status agreements adopted by the Council of the European Union in 2005 to serve as a basis for negotiations with prospective host states in all future EU operations. Even though no norm of international law compels the EU to request only such privileges and immunities as are absolutely necessary for the purposes of an operation, its practice of negotiating extensive privileges and immunities does not sit well with the growing emphasis on the accountabil- ity of peace support operations. This article offers an overview of the evolution of the EU's practice of concluding status agreements in the context of the European Security and Defence Policy and examines the key provisions of the two model status agreements.