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Russian Law Journal

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Vol 4, No 1 (2016)
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https://doi.org/10.17589/2309-8678-2016-4-1

Chief Editor’s Note

5-7 931
Abstract
Russia is a party to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards. The USSR was one of the original Member States to sign the Convention in 1958. There is a distinction between international and domestic arbitration. Arbitration in Russia was regulated by the Federal Law on Arbitral Tribunals in the Russian Federation (2003) (domestic arbitration) and the Federal Law on International Commercial Arbitration (1993) (international arbitration). This law was drafted on the basis of the UNCITRAL Model Law on International Commercial Arbitration.

Articles

8-25 1698
Abstract
This note presents an analysis from the viewpoint of public international law of the event that occurred on November 24, 2015, when a Russian Sukhoi Su-24 bomber jet was downed by the Turkish Air Force over the border region between Syria and Turkey. While some of the basic circumstances of the case remain controversial, enough elements have emerged from media coverage to permit for the identification of the main legal issues, if not also to assess the legality of the Russian behavior and of the Turkish reaction in all its details. The known facts warrant the conclusion that the attack and the downing of the Russian jet can be seen as a disproportionate reaction on the part of the Turkish Government and, therefore, as a violation of the prohibition of the use of military force under Art. 2(4) of the UN Charter and under the corresponding customary rule of international law.
26-60 1508
Abstract

On December 4, 2015, the Bundestag agreed to the participation of German troops in the Western-led military campaign against the so-called Islamic State or ISIS in Syria.

This article will discuss whether the military campaign Germany is now supporting is justified under international law. The main argument put forward by the German Government is that the use of force against ISIS targets in Syria is justified based on UN Security Council Resolution 2249 (2015) and Art. 51 of the UN Charter. Germany thus seems to be claiming that it is engaged in collective self-defence against ISIS in support and at the request of Iraq and France.

It will be shown that this line of argument is not convincing. Resolution 2249 does evidently not authorize the use of force. Article 51, on the other hand, while explicitly permitting the use of force in response to an armed attack, is limited to attacks imputable to another state. ISIS, however, is neither a state, nor is it directed by a state.

Having found the German Government’s arguments to be unpersuasive, the article will then turn to customary international law as a possible source of justification. Has customary international law, especially in the aftermath of the use of force against Afghanistan under the Taliban in the aftermath of 09/11, evolved in such a way so as to now permit the use of force in self-defence against non-state actors on another state’s territory without that state’s consent?

Based on state practice prior and subsequent to Afghanistan it will be shown that customary international law does currently not justify the Western-led military campaign against ISIS in Syria. Bearing in mind that Syria’s Government, in contrast to the Afghan Taliban Government’s attitude towards Al-Qaeda in 2001, is itself attempting to fight ISIS, it must therefore be concluded that Germany’s participation in the Western-led military campaign is unlawful.

61-97 1670
Abstract
This paper explores the ambiguous nature of two principles of international law – self-determination and territorial integrity – illustrating the controversial nuances of international law on a political level, nuances with which the Crimean crisis has been described. Multiple paradigms will be applied to interpret the juristic status of the quoted principles. The foundation of this research is the collision between Russia and the West over the legal interpretation of these two principles throughout history and particularly in the case of Crimea. From the very beginning, the legal interpretation of the situation in Crimea was that Russia’s legal rhetoric was groundless and that her legal justification for the secession of Crimea was simply not plausible, and therefore could not be linked to either legal or moral theories. After exposing the fragility of these principles in international law, the paper then concludes by proposing an alternative approach that utilizes a different philosophical logic, thus further illustrating the hidden nature of such contradictions in politics.
98-128 1118
Abstract
Contemporary authors often overstate the differences within the human rights regimes in the Russian Federation and the United States. This article is meant to provide insight into why the two systems, although taking markedly different developmental paths, have come to be far more similar than is often realized. The first question raised is, how did the two human rights systems develop historically? The next question is, how did the Universal Declaration of Human Rights and its subsequent split into two separate Covenants affect the rights within each system? The third question raised is, what modern advancements have taken place within each system? And finally, what failures within each system are also demonstrative of similarities within the two systems? Thus, the article begins by tracing historical developments within the two systems in order to elucidate regional variances that exist, and to explain how such variance materialized. Next, the article will provide concrete examples by comparing specific rights – such as the right to a public education, the right to social security, the right to participate in political life, and the right to privately own land – in order to provide some insight into why the author believes the differences in the two systems are often overstated by commentators. Finally, the article will explore some shortcomings that also share marked similarities within both systems. The article concludes that while the human rights regimes within Russia and the United States took markedly different paths during their development, and have relied on vastly different political and social situations during their evolution, they have ultimately reached a much greater level of maturity and protection under the law than is often given credit.

Comments

129-141 987
Abstract

Attracting Foreign Direct Investment (FDI) has been priority issue for the Government of Uzbekistan (GOU) since the proclamation of the country’s independence from the Soviet Union in the early 1990s . Today the operating legal regulations provide adequate state guarantees of protection, tax incentives and other privileges for foreign investors, and the GOU has been introducing legal adjustments to honour its commitments in securing a more favorable investment climate. However, foreign investors in practice are facing serious legal problems in doing business in the country. Frequent modification of laws and their artbitrary application, erroneous interpretation of legal terms, ambiguous rules and procedures, lack of protection of property rights and an independent dispute resolution mechanism are the legal concerns that usually keep foreign investors from entering the market.

In this paper I will analyze some of the measures and changes recently adopted by the GOU that aim to make the country’s investment climate more attractive and I will try to find answers for the following questions. How sincere can these efforts be considered by prospective investors? What novelties do those changes provide for the investors? Will such attempts emanate actual and immediate constructive results in the near future?

Conferences Review Notes

142-147 949
Abstract

The II Annual Symposium of the journal Herald of Civil Procedure ‘2015: The Civil Procedure 2.0: Reform and Current State’ took place on October 9, 2015, at the Faculty of Law of Kazan (Volga region) Federal University.

The Symposium is now an established tradition for the University. In 2015 it brought together in Kazan eminent scholars of civil procedure from cities across the whole of Russia: Moscow, St. Petersburg, Saratov, Ekaterinburg, Omsk, Samara, Nizhnekamsk and others. This large-scale event attracted the attention not only of Russian scholars, but also of legal scholars from abroad: Elisabetta Silvestri (Professor, University of Pavia, Italy), William B. Simons (Professor, University of Tartu, Estonia), Jaroslav Turlukovsky (Professor, Warsaw University, Poland), Stuart H. Schultz (Practising Attorney, USA), Irina Izarova (Associate Professor, Taras Shevchenko National University of Kyiv, Ukraine).

The opening ceremony of the Symposium began with greetings to all participants and best wishes for productive discussions. Participants were welcomed with remarks by Marat Khairullin, Deputy Chair of the Supreme Court of the Republic of Tatarstan, Radik Ilyasov, Head of the Federal Bailiff Service of the Republic of Tatarstan, and Ildar Tarkhanov, Academic Supervisor at the Faculty of Law. They expressed their appreciation for the great value of the journal Herald of Civil Procedure in the growth of the science of civil procedure and enforcement procedure, and for its contributions to the development of the judicial system of the Russian Federation.

In addition to hearing prepared reports and discussing viewpoints on current issues of civil and arbitration procedure, participants attended presentations by representatives from procedural law periodicals in the frame of the Symposium. The Editor-in-Chief of Herald of Civil Procedure, Damir Valeev, and the Commercial Director of the Statut Publishing House (Moscow), Kirill Samoilov, presented new books in the series ‘Classics of Civil Procedure,’ which is a joint publication of the University and Statut. Editors of law periodicals noted this great event, too. Professor Vladimir Gureev introduced the first publication of the new scientific and practical journal Herald of Enforcement Procedure and Professor Dmitry Maleshin presented the new book Eurasian civil procedure: the 25th anniversary of the CIS and Baltic countries. The conference topics were devoted to the actual issues facing civil procedure and enforcement procedure in the Russian Federation, and in other countries, too.



ISSN 2309-8678 (Print)
ISSN 2312-3605 (Online)