Preview

Russian Law Journal

Advanced search
Vol 4, No 4 (2016)
View or download the full issue PDF
https://doi.org/10.17589/2309-8678-2016-4-4

Chief Editor’s Note

Articles

7-26 750
Abstract

This article deals with the much debated issue of children’s public participation from the perspective of legal practices in the Russian Federation. Having emerged at the level of national jurisdictions, the practice of engaging minors in decision-making processes on issues of public significance – or the practice of public participation of children – is stipulated by the UN Committee on the Rights of the Child, based on Article 12 of the UN Convention on the Rights of the Child. Public participation of minors implies that children have clearly defined opportunities to take part in decision-making processes concerning those political and public matters affecting their interests.
Albeit limited by the clause “regarding the issues concerning them,” the claims for such participation are dictated by emerging standards of international law. The author has examined the process of devising these standards in Russian public law. Moreover, an analysis of the evolution of academic views on public participation of children in Russian legal scholarship is also included in this article.
Relying extensively on the method of legal analysis and the comparative analysis of the conformity of national public law standards with respect to international law, the author proposes several legal amendments to the Federal law “On the Basic Guarantees of the Rights of the Child in the Russian Federation,” which would lead to anchoring more solidly the participatory right of minors in the legal system of the Russian Federation.

27-45 814
Abstract
Sovereignty is the reason why States seek to apply their jurisdictions. All States like to extend their jurisdictions as far as they can, so some of them have adopted extraterritorial policies in exercising their jurisdictions. In this manner the United States has approved several extraterritorial Laws in respect of competition law and sanctions, causing some coercion to non-target states. In response to this long-arm jurisdiction by the U.S., some countries, such as the U.K., Canada, Australia, Mexico etc., as well as the E.U., took actions of their own in order to nullify these extraterritorial laws. These measures, which are mostly applied to the jurisdictional field, could be described as jurisdictional countermeasures. They can be divided into prescriptive, adjudicative and executive measures, which include blocking statutes, claw-back statutes, non-recognition, procedural restrictions, non-execution and retaliatory measures. Not all of these measures are prohibited by international law and some can be viewed as a just retorsion against that State. However, where the application of these measures is prohibited by international law – in cases such as the non-recognition of foreign judgments and other jurisdictional regulations in international treaties like mutual judicial assistance agreements – they are countermeasures. If these actions are in response to an illegal extraterritorial law, they should comply with the conditions for countermeasures as cited in the Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001 as approved by the International Law Commission.
46-61 507
Abstract
As far as correlation does not mean causation, even it found a high correlation between some legal rights and economical parameters, it doesn’t mean that the latter are caused by legal dimensions only. However, if strong correlations exist between some legal rights and some socioeconomic outcomes, this is a good argument for policy makers to improve situation with proper legal rights which highly correlate with their first priority, that of socioeconomic policy aims. It’s important to know the real impact of improving legal rights for society to avoid overestimation or underestimation of this impact. Also, regarding the increase in the amount of different international ratings of legal rights, the question which is more reliable should be raised (“competition of ratings”). The correlation analysis shows that “economic oriented” legal rights such as like property and intellectual property are relatively more correlated with GDP per capita. On the other hand, political rights and civil freedoms such as the right not to be tortured unlawfully detained are relatively more correlated with social progress as a more complex and general socio-economic outcome. At the same time there is no high correlation observed between legal rights and life expectancy
62-80 1258
Abstract
International law grants states an inherent right to self-defence. States can exercise this right whenever they face armed attack. However, any country wishing to exercise its right to self-defence must fully consider all the restrictions on this right. The right to self-defence can permit the use of force within the borders of the victim state or on the territory of another state from where the attack is carried out. Accordingly, states may respond to any attack by the armed forces of another state or irregular armed groups that use the territory of other states for their attacks. Turkey is a country with a huge population of Kurdish inhabitants. The Kurds possess distinct origins, history, language, culture and a historical link to their land. Thus, they qualify as a people. For much of their history they have peacefully sought to assert their rights; however, Turkey denied those rights to the extent that the formation of the PKK in 1978 became amove of last resort. When the PKK started demanding Kurdish right to self-determination, Turkey launched military operations against it in self-defence. During the 1980s and 1990s, the PKK established camps in Iraq. On several occasions it withdrew its forces there as part of peace negotiations with the Turkish government. Turkey crossed the Iraqi borders and attacked the camps as part of a state policy to fight the PKK outside its borders. The PKK subsequently handed over the camps to other groups, which never posed any military threat to Turkey, but Turkish forces continued to cross the border into Iraq. This article examines the right of Turkey to use force within the borders of Iraq under the justification of self-defence.

Comments

81-94 575
Abstract

This paper explores business transactions in the context of the principle of legality. It will be argued that Article 168 of the Russian Civil Code, as a metarule, contains three types of rule: 1) rules dealing with the priority of special rules and exceptions (exclusive rules); 2) rules dealing with the interpretation of general, special and exclusive rules, as well as with the requirements of statutes or other legal acts violated by a transaction and established outside of Article 168 of the Civil Code; 3) rules dealing with the admissibility of special rules and exceptions, as well as with the conditions of admissibility of these rules.
With regard to the first group of rules, the legislature and commercial courts consider Article 168 of the Civil Code a common base for other grounds in the Civil Code, and in certain other statutes, for declaring transactions invalid. According to the second group of rules, the subject-matter (object) of legal interpretation consists of two elements: а) the text of Article 168 of the Civil Code; and b) the texts of legal acts, described by the generic term “statute or other legal act.” Article 168 of the Civil Code provides instructions, not only for rules as objects of application of the article, but also for the methods of interpreting violated requirements. The rules of admissibility for special rules and exceptions, as well as the conditions of admissibility for these standards, are aimed at the numerous cases in which the legislature, in the Civil Code or in other legal acts, expressly establishes nullity (voidness), voidability and other legal consequences for illegal transactions. The paper also answers questions regarding the impact of recent amendments to the Russian Civil
Code on the use, by commercial courts, of rules on business transaction invalidity.

95-111 496
Abstract
The current article seeks to provide a comparative legal analysis of the Eurasian model of international labor legislation. It explores the multi-layered nature of contemporary international labor law in the context of globalization and regionalization, emphasizing the growing importance of cross-border legal labor standards in regional structures in the early 21st century and defines how global and regional cross-border legislation is incorporated on the basis of in favorem. The authors propose their own original concept of international labor legislation, based on the four characteristics: 1) The overall aim of legal regulation; 2) The extent of integration within those regulations; 3) Sources of labor law and their characteristics; 4) Systems of international control over labor rights. To define an original model for the legal regulation of labor, the authors investigate case studies of labour legal regulation in inter-state regional organizations including the European Union, the Council of Europe and ASEAN. The authors’ theoretical model identifies the defining features of Eurasia’s model of labor regulation. The research also follows the establishment and development of Eurasian labor law and attempts to give an informed judgment about its future path. In their conclusions, the authors assert that modern Eurasian labor law is a ‘live law’, still under development as it incorporates the non-uniform integration between the former Soviet Republics. Two primary trends leading regional co-operation in the labor market are identified: 1) A social model, implementing international labor rights across Eurasia; 2) An economic model, built on the free movement of labor in a common market. In today’s environment, the Commonwealth of Independent States goes some way toward representing the first trend through its attempts to serve as an international coordinating organization. The second trend is supported by supranational organizations promoting international integration, emphasizing the economic priorities of a common labor market (in this case, the EAEC) above social policy. The authors believe that, in the long term, Eurasian labor law at a supranational level should be developed via the EAEC to ensure a good balance between these social and economic models. This would include integration standards adopted in accordance with international labor rights, and the best practices of national labor legislation of its member states.

Conferences Review Notes

112-119 551
Abstract

The Faculty of Law of the University of Helsinki is committed to diverse and internationally collaborative approaches to studying various legal systems in the context of comparative law, and UHLS and the Law Faculty of the National Research University, Higher School of Economics have developed an ongoing program to undertake this effort. The original annual conference series on the Development of Russian Law was launched in 2008 as an initiative to further knowledge and critical thinking about Russian law during its period of transition and modernization. The conference is held annually and brings together legal practitioners and scholars from Russia, Finland and elsewhere to discuss important matters of Russian law, legal reform, and legal practice. Prior years’ Conference themes have included discussions of legal reforms, the justice system, the Russian legal profession, human rights, civil and business law, legal policy, rule-of-law and market economy.
This year’s program was designed to attract law faculty, scholars from different disciplines, and also practicing lawyers, to address a wide range of topics grouped around the general theme of how the phenomenon and challenges of globalization affect Russian legal system development. The call for papers included: (i) Relationships between Russian domestic and international law, (ii) The impacts of international legal institutions on the development of Russian law(s), (iii) Globalization in the field of business law, (iv) Global law & Russian legal theory, (v) Regional models of legal cooperation and Russia’s participation, (vi) Transnational legal problems in areas such as constitutionalism and rule-of-law, (vii) Theoretical and applied implications of the concept of global transplants, and (viii) A global human rights agenda, including Russia’s place in this agenda.
This was a very ambitious and multi-faceted undertaking. Through a process of careful evaluation, the Conference organizers produced a very diverse and challenging program, consisting of 8 Sessions, (7 panels and one round-table devoted to specific Session themes), along with a general Round-table discussion on the subject of Russian-Finnish legal cooperation partnering.1 The two-day Symposium, October 6–7, was preceded by a Wednesday afternoon PhD student seminar. At this seminar, there were presentations by Dr. Ari Hirvonen (University of Helsinki) on Finnish doctoral education in law and Dr. Svetlana Vasilieva (Higher School of Economics, Moscow, Russia) on Russian PhD education in law, followed by presentations by PhD students of their works-in-progress.2 Professor Pia Letto-Vanamo, Director of the Doctoral School at the University of Helsinki, then delivered the Keynote Lecture – Methodological Challenges of Legal Research, followed by a Reception for participants. In this lecture, she highlighted how global agenda influences national legal issues and what it is to practice good lawyering.



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