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Russian Law Journal

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Vol 3, No 1 (2015)
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https://doi.org/10.17589/2309-8678-2015-3-1

Chief Editor’s Note

Articles

6-32 3635
Abstract

Debate as to the relationship between law and power in Russia has long focused on the study of hard power. Adopting the work done on soft power in the sphere of American political science, and as part of a legal analysis, we wish to show that Russia has also developed her own soft power based in part on a strategy of normative influence. Law is thus part of a trend in regaining power that has previously been lost. Admittedly this strategy is not, in itself, the preserve of Russia, as is shown by the European Union’s own use of the same approach. The fact remains, however, that there are aspects specific to Russia. Indeed, it may be possible to isolate three types of normative influence in Russia, the construction of which is linked, in part, to her history. Firstly, there is the normative legacy of the Soviet Union. A direct consequence of history, Russia has set about making that legacy bear fruit or, at the very least, ensuring that it is not fundamentally challenged. Secondly, and particularly by relying on the CIS’s institutional and political springboards, Russia has succeeded in promoting the normative alignment of those countries that she seeks to influence, which we have termed the promotion of normative convergence. Thirdly, and with greater vigour, Russia now promotes a veritable normative expansion that is increasingly based on a fait accompli rather than persuasion. These are the three  types of influence that we propose to examine in this article, limiting the legal analysis to two countries that are directly concerned with this strategy: Ukraine and Belarus.

33-57 1761
Abstract

This article answers a multi-faceted question: do the people occupying the region of Eastern and Southern Ukraine have the right to secede from Ukraine and merge with the Russian Federation? It also evaluates the legal status of the economic sanctions imposed upon the Russian Federation for its alleged interference in the internal affairs of Ukraine.

The argument proceeds from the assumption that the international legal system does not repose on a foundation of empirical validity, but rather upon sets of authoritative statements, insusceptible of verification. In this context, the article constructs an argument based upon relevant public international law texts, interpreted according to contemporary jurisprudential thought and principles of statutory construction partially embodied in the Vienna Convention on the Law of Treaties of 1969, the implied right of secession contained in the UN General Assembly’s Declaration on Friendly Relations of 1970, and the need to achieve pragmatic results to legal questions. The argument thus avoids traditional doctrinal analysis and the mud of history.

In short, the people occupying the region of Eastern and Southern Ukraine have the right to secede from Ukraine and merge with the Russian Federation, and the economic sanctions imposed against the Russian Federation for its presumed interference in the internal affairs of Ukraine are illegal under the United Nations Charter and the World Trade Organisation.

 

58-91 2933
Abstract

War and peace have perpetually alternated in history. Consequently, peace has always been seen as an endless project, even a dream, to be in brotherhood realized by everyone across the earth. Since the XVII century the elimination of war and armed conflict has been a political and humanitarian objective of all nations in the world. Both the League of Nations and the United Nations were conceived with the spirit of eliminating the risk of war through the promotion of peace, cooperation and solidarity among Nations. The Universal Declaration of Human Rights and the subsequent human rights instruments were drafted with a sincere aspiration of promoting the value of peace and human rights worldwide. International practice shows the close linkage between the disregard of human rights and the existence of war and armed conflict. It follows that the role of human rights in the prevention of war and armed conflict is very important. Since 2008 the Human Rights Council has been working on the ‘Promotion of the Right of Peoples to Peace.’ Pursuant resolutions 20/15 and 23/16 the Council decided firstly to establish, and secondly to extend the mandate of the Open-Ended Working Group (OEWG) aimed at progressively negotiating a draft United Nations declaration on the right to peace. The OEGW welcomed in its second session (July 2014) the approach of the Chairperson-Rapporteur, which is basically based on the relationship between the right to life and human rights, peace and development.

92-109 4295
Abstract

The legal regulations on environmental issues that arise in the Arctic due to intensive exploitation of its oil and gas resources need to be explored. There are gaps in environmental regulations over the Arctic region both at international and domestic levels. For Russia, at least two basic problems can be seen in the legal norms: the absence of a coherent approach to the Arctic environmental legislation and policy, and the need to develop effective mechanisms of environmental protection in the process of the Arctic development. In recent years, the Arctic states have expanded legislation on the Arctic issues. Currently, the most effective legal instruments targeting the protection of the fragile Arctic environment have been created by the Arctic countries. The introduction of a system of integrated environmental management is the first step that should be taken. Deep scientific research should be the obligatory foundation of any Arctic project. Moreover, much attention should be paid to the analysis of biological diversity preservation schemes. Lastly, special laws are needed in Russia to ensure: the regulation, prevention, and response to pollution by oil and other containments; the protection and rational use of Arctic resources; and the conservation of the Arctic marine areas and natural landmarks. These ideas are based on a comparative analysis of the legal rules contained within the laws of Norway, Canada, and the United States.

Comments

110-132 2161
Abstract

This article examines the search for truth by the civil law courts in The Netherlands and Russia, and elucidates three basic questions in that respect: 1) should civil law courts seek for truth in civil process; 2) how must this truth be perceived; and 3) how do courts seek for truth? The Dutch approach to these questions is basically that no justice can be done when there has not at least been undertaken a serious effort to find out the truth, while at the same time acknowledging that seeking for truth has less to do with the final result than with the attitude of the court in its quest for a just decision. In their search for truth – by establishing the correct facts – Dutch courts apply a balanced methodology. Russian civil courts take the position that, although are not required to, they think they should search for truth in the sense that it correctly reflects objective reality. It may well be that Russian civil procedure puts in theory a goal of finding objective truth but, while having no objective instrument for that, does so in the most subjective way possible. Dutch methodology may well be the one needed for the Russian courts.

 

133-142 3809
Abstract

The Crimean situation has put self-determination, secession and accession back at the top of the international law agenda. The article deals with questions of the procedure of Crimea’s self-determination and accession to the Russian Federation from the point of view of international law. Special attention is paid to the analysis of the ICJ Advisory Opinion on the question of the accordance with international law of the unilateral declaration of independence in respect of Kosovo in its interrelation with the Crimea case.

The text also includes an unofficial translation of an accession treaty between Russia and the Republic of Crimea. With the Crimean Republic’s declaration of independence, it is the most important document for the legal analysis of the situation.

 

143-168 7500
Abstract

On March 7, 2014, the International Criminal Court delivered its most recent judgment convicting Mr. Katanga as an accessory of crime against humanity in the form of murder and four counts of war crimes within the meaning of Art. 25(3)(d) of the Rome Statute. This decision along with its previous final decisions in the Lubanga and Ngudjolo cases has raised similar concerns about individual criminal responsibility regarding, inter alia, application of control over a crime doctrine as evidenced from the dissenting / separate opinions to them. This doctrine has already firmly settled within the ICC jurisprudence and yet some judges doubt if its application is justified, especially given the peculiarities of national origin irrelevant in the realm of the Rome Statute. The other raised concern is a potential application of the legality principle, since both Ngudjolo and Katanga judgments have investigated the same situations and come to the completely different results.

While the Rome Statute contains the most complete provision determining the modes of individual responsibility, Art. 25 thus appears to be far from being out of debates. To dispel some of them, this article analyzes practical application of Art. 25(3)(a) and (d) by the ICC and different approaches in this regard as well as general grounds for raising question on the necessity for individual criminal responsibility.

 

Book Review Notes

169-180 2110
Abstract

The book by Maria Efremova, Svetlana Yakovleva and Jane Henderson aims to serve as a short introduction to Russian contract law for a foreign lawyer. Assuming that the target readership are mainly English lawyers the book’s second aim, expressly stated by the authors (pp. i, 1), is to make lawyers from common law countries familiar with codified law, with Russian law being just an example. The book covers most of the general law of obligations as well as some questions of formation and invalidity of contracts that belong to the general part of the Civil Сode, with this preceded by a brief introduction into the Russian law dealing with its history, federal structure and state agencies of Russia, its court system, sources of law and legal profession.

Conferences Review Notes

181-183 1250
Abstract

The Sanctions Seminar held on November 19 was organized by LexisNexis Russia in cooperation with ANO Pericles.

The Seminar theme was ‘Economic Sanctions Overview: Due Diligence and AML Procedures.’ In the course of the seminar, practicing lawyers, compliance and AML professionals had the opportunity to interact on the scope of US A and EU Sanctions and their impact on global business transaction, as well as get a better understanding of the due diligence procedures necessary in order to comply with a such complex environment.



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