Moscow Journal of International Law
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The Actuality of the Permanent Neutrality of a State in Contemporary International Law
INTRODUCTION. The permanent neutrality of a state is an institution of public international law that embraces both treaty and customary norms. Despite its legal character, the term ‘neutrality’ is also employed in a political context as a kind of foreign policy of a country. Recent developments in international relations, incremental cooperation within integrational structures raise a question about the current state and future perspectives of the permanent neutrality of a state. The goal of the following paper is to discuss contemporary legal status, the content and the possible future role of the permanent neutrality of a state under international law. The author critically discusses different opinions already presented in the doctrine, especially in regard to the case of Turkmenistan.MATERIALS AND METHODS. The paper analyzes international legal acts, the customary law of permanent neutrality, including the acquisition of this status, duties and rights as well as the doctrine – works of prominent legal scholars. The research was conducted upon general scientific methods, including comparative and formal-legal methods.RESEARCH RESULTS. The paper tackles the issue of the legal character of the permanent neutrality of a state and its distinctive features from the policy of neutrality. Subsequently, it discusses the problem of the evolution of permanent neutrality and provides arguments in favour of the thesis of its ‘obsolete’ nature. The analysis of the rights and obligations that stem from the permanent neutrality and their compatibility with the UN Charter’s norms brought the author to the conclusion regarding the necessity of a revival of the permanent neutrality. According to the case of Turkmenistan, the paper discusses the possible evolution of the acquisition of the status of the permanent neutral state. This could be possible through recognition by the international organization and, subsequently, hardening the soft law (the resolutions of the UN General Assembly). Finally, it presents possible salient tasks of the permanent neutral countries regarding the international society.DISCUSSION AND CONCLUSIONS. The prohibition of the use of force in international relations and the adoption of the UN Charter have raised a question regarding the prospects of permanent neutrality as an institution of public international law. The fundamental aim of this institution is to protect the sovereignty of the permanent neutral state, which currently is regulated by iuris cogentis norms. Thus, some scholars have argued that permanent neutrality is ‘obsolete’ and should disappear from international relations and particularly frominternational law. Despite that, only after the end of the ‘cold war’ growing interest to the permanent neutrality was expressed by such nations, like Belarus, Moldova, and Serbia. To conclude, permanent neutrality is still present in public international law, there are no pieces of evidence of neglecting this status by the states. Its specificity is determined by treaty laws and customary laws related to the Swiss case. The permanent neutrality possesses a constitutive character that should be confirmed by other countries. The case of Turkmenistan may open a new possibility of obtaining this status through recognition by the international organization. In general, permanent neutrality keeps important for the stability and predictability of international relations.
INTRODUCTION. The amendments to the Russian Constitution 2020 challenged de novo the international law prevalence and led the Russia’s way to find it own perception of international law. Although the amendments did not introduce drastically substantive modifications of the international law modus operandi in the national legal system nevertheless they shifted the constitutional focus. The former one was built on the presumption of the juridical consistency of the constitutional order and Russia’s international commitments. Today there’s the a priori allegation of possible conflicts between requirements of the Constitution and judgment of international courts.MATERIALS AND METHODS. The paper comprises short historical analysis of the internationally meaningful rules of the Constitution in its comparison to the current legal situation in Russia. Rather superficial but illustrative juridical overview of the relevant constitutional provisions with their domestic legal counterparts demonstrates the significance and practical efficiency of the concomitant interpretation of the constitutional rules and Russia’s international obligations.RESEARCH RESULTS. Such a shift paradigmatically is still pending new interpretation of the constitutional fundamentals. At least they need different construction to be concomitant to the refusal mechanism (as regards international judgments). Still unchanged verbatim the constitutional fundamentals provide for proliferated mechanism of the human rights protection under international las with in domestic order and still require the concordant interpretation of the international commitments and constitutional rules.DISCUSSION AND CONCLUSIONS. The modified constitutional landscape shifted drastically the international law priority in the Russian legal system. Although the international law leaves to the State’s choice to determine internally the status of its international commitments the constitutional fundamentals (left untouched verbatim) still require international law priority. The constitutionally enclosed human right protection mechanism emphasizes such priority.
INTRODUCTION. The Eurasian economic union (EAEU) institutions have a huge competence delegated by the EAEU Member-States. Effective implementation of such competence, especially in foreign trade, entails relevant international activity of the EAEU institutions. In this connection the article analyses international capability of the EAEU, relevant experience of the European Union as well as actual status and perspectives of the EAEU international activity in foreign trade.MATERIALS AND METHODS. The research is based on the analysis of the EAEU legislation, recent works of relevant researchers, experience of the European Union in respect of international cooperation. Methodological instruments are analysis, synthesis, deduction, induction and analogy.RESEARCH RESULTS. Successful development of foreign trade activity of the EAEU Member-States depends on effectiveness of the EAEU international activity. The research shows that EAEU international activity in foreign trade is not as effective as it could be. This has a negative impact on foreign market accessibility for the EAEU Member-States goods. In view of the above a thorough research of appropriate EU legal base was conducted. It shows, that effectiveness of the EU in promotion of its interests on the international stage, including in the foreign trade, is based on relevant legal mechanisms, which allows to take into account both positions of the EU and its Member-States. Such experience with combination of the specific characters of Eurasian integration will help to make necessary amendments to the EAEU legal base to increase its effectiveness.DISCUSSION AND CONLUSIONS. The author makes conclusion on the necessity of amendments to the EAEU international activity legal base, with use of the researched European Union experience. In particular, the EAEU institutions need additional competence for more independence and flexibility at international level. This will improve the EAEU international activity, including conclusion of free trade agreements (regardless of concluded agreements of the EAEU, the scale of international activity of the EAEU is not comparable with the European Union’s one), create conditions for export promotion, and help to strengthen the EAEU image as independent participant of international relations.
INTRODUCTION. This research paper presents the authors view on the essence of the problems of modern international law regulation of lethal autonomous weapons systems (LAWS) and international arms circulation. The authors dwell upon various aspects of new technologies in the field of creating LAWS, outline the prospects for the solution of the current challenges, as well as give a legal assessment of the legality of new types of weapons, methods and means of warfare from the perspective of contemporary international law. The system and mechanisms of international law regulation of the military purpose products circulation are also analyzed in this scientific work.MATERIALS AND METHODS. The subject of this study comprises international treaties, international customs, general principles of international law and national legislation of states. The study also includes the analysis of international acts of different nature, reports and other documents of international organizations, national authorities, scientific and educationalliterature. The methodological basis of this study is a wide range of research methods, namely: formal-legal, formal-logical, comparative-legal and historical-legal. In addition, the researchers apply system, structural and functional methods, as well as methods of analysis and generalization.RESEARCH RESULTS. The result of the study is the conclusion about the perspectives of developing auniversal definition of LAWS, as well as a common approach to understanding their characteristics and parameters of human control, and also about the advantages of LAWS in the course of military operations and solving national security problems of states, primarily in terms of compliance with IHL rules, which all military personnel are required to strictly observe. It is also necessary to take into account the crucial role of the issues of secrecy and national security, while Article 36 of Additional Protocol I does not contain criteria for distinguishing new types of weapons from other types of weapons, for example, from those that have undergone multi-stage modernization. It can be stated that at present there are only separate and insuffi ently effective mechanisms of international law regulation due to their voluntary basis. Therefore, national export control mechanisms are of paramount importance for the process of regulating the circulation of military purpose products, which is an essential element of national sovereignty.DISCUSSION AND CONCLUSIONS. The authors come to the following conclusions: the existing provisions of IHL are fully applicable to LAWS; responsibility for the use of LAWS should be borne by the person who manages the robotic complex or «programs» and gives the order to use LAWS, but the specific forms and methods of human control should remain at the discretion of states; Article 36 of Additional Protocol I provides extremely limited opportunities to prevent the creation of new weapons systems, does not require any reporting and control format; research and development of new types ofweapons are secret, and the acquisition or adoption of obviously or presumably indiscriminate weapons systems are not a violation, but rather a preparation for a violation or an activity of a controversial nature; further improvement of the international law regulation of arms circulation should be developed by creating mandatory universal mechanisms of international law regulation that would prevent the uncontrolled circulation and illegal distribution of weapons, including their sale to terrorists.
INTRODUCTION. In December 2019, an outbreak of coronavirus infection (SARS-CoV-2) transmitted by airborne droplets was recorded in Wuhan, China. In mid-January, the virus was detected in Thailand and Japan; in March, the center of the pandemic moved to Europe; in early April, the United States came out on top in terms of the number of infections. To combat the virus, many states have introduced emergency measures, including lockdowns, social distance requirements, mass testing, etc. The pandemic has affected all spheres of public life, including international relations and international law.MATERIALS AND METHODS. The article analyzes the response to the pandemic on the part of states, organizations and the doctrine of international law; examines the international legal aspects of the pandemic: application of the International Health Regulations 2005, possible responsibility of China and other states, impact of the pandemic on human rights. The problems of legal regulation in connection with the pandemic are defined and the ways of their solution are determined. The subject of analysis is the materials of foreign legal press, first of all, posts and articles on the Internet. In addition to the data of international law, scientific categories of philosophy, economics and political science are used.RESEARCH RESULTS. Major UN bodies have reacted to the pandemic with general statements. WHO positioned itself as an international center for the fight against the virus and made recommendations that, however, were not implemented by states which adopted more restrictive measures. The main document that guided WHO is the International Health Regulations 2005 (IHR). Some states and the media accused China of a belated reaction and withholding information. As a result, the doctrine has discussed the issue of bringing a claim against China to the International Court of Justice. The legal basis for this claim could be the provisions of the IHR, the WHO Constitution and a number of duediligence obligations. The jurisdictional basis for applying to the ICJ could be Art. 75 of the WHO Constitution, and to an arbitration Art. 56 IHR. In response to the pandemic, many states have limited human rights; references have been made to the possibility of a temporary derogation from human rights obligations in an emergency and the possibility of limiting human rights in the interests of national security, health and the protection of the rights of others.DISCUSSION AND CONCLUSIONS. The foreign doctrine notes an nsufficient response frominternational organizations and makes proposals aimed at expanding the powers of the UN Security Council in combating the pandemic and at reforming the WHO. In addition, there are shortcomings of the IHR that hinder their effective use. The possibility of holding China accountable is questioned: there is nsufficient evidence of the violation; the threshold for breach of duediligence obligations is very high; China is unlikely to agree to participate in the lawsuit against it. Nevertheless, several lessons can be learned for the law of responsibility (the possibility of deviating from the principle of full compensation, etc.).The procedure for derogating from human rights obligations during a pandemic also needs clarification. In general, the international legal doctrine coped with the task of understanding of the pandemic phenomenon: it systematized and qualified the facts, discovered and formulated legal problems, both private and public, and suggested means to solve them. Few questioned the advisability of such a harsh global reaction and formulated a radical criticism; instead, the shortcomings of individual measures were noted and proposals were made to improve their effectiveness.
INTRODUCTION. Since January 1, 2015, a new body of international justice, the Court of the Eurasian Economic Union (hereinafter – Court of the EAEU, the Court) has been functioning. This Court operates in accordance with the Treaty on the Eurasian Economic Union of May 29, 2014 (hereinafter – the Treaty on the EAEU), as well as the Statute of the Court of the Eurasian Economic Union (Appendix No. 2 to the Treaty on the EAEU; hereinafter the Statute). The EAEU Court replaced the Eurasian Economic Community Court (hereinafter – the EurAsEC Court), which functioned from January 1, 2012 to December 31, 2014 and had a scope of powers comparable to the current EAEU Court. These bodies have developed a significant amount of case-law on various issues of Eurasian integration, which, by virtue of paragraph 1 of Article 1 of the Treaty on the EAEU, presupposes freedom of movement of goods, capital, services, and labor forces. Thus, the EurAsEC Court and the EEU Court have delivered judicial acts on various issues of lifting barriers in the Eurasian market, customs classification, regulation of the activities of leasing companies, competition law, the status of foreign athletes in sports competitions, currency movement between the EAEU member states and other issues inwhich international law (EAEU law) was applied and interpreted.MATERIALS AND METHODS. The article examines law on the activities and competence of the EAEU Court, as well as the judicial practice of the EAEU Court and the EurAsEC Court. The article examines the differences between the judicial acts of the EAEU Court – judgments and advisory opinions. The doctrine is considered, which indicates that the decisions of this supranational judicial body (that is, the body to which the Union member states have transferred competence to consider disputes previously considered in national courts in relation to decisions (actions, inaction) of state bodies; access to which is without exhausting domestic legal remedies) entail legal consequences towards an indefinite set of persons (erga omnes), and non-binding acts of the Court, advisory opinions. The practice of execution of decisions and advisory opinions of the EAEU Court at various levels is considered in the present article.During the research, general scientific methods were used: historical, formal legal, system analysis, comparative analysis, etc.RESEARCH RESULTS. The study made it possible to come to the conclusion that by now, in general, a positive practice of execution of decisions and advisory opinions of the EAEU Court has been formed. This body influences the legal reality of both the EAEU and its member states through the judicial acts rendered by it – the EAEU Court makes decisions that are generally executed by the EAEU member states, the EEC voluntarily or compulsorily. At the same time, the EAEU court does not always take into account its own practice in the cases under consideration. The advisory opinions of the EAEU Court are сonsidered by both the EEC and the member states of the Union in the context of lawmaking and law enforcement.DISCUSSION AND CONCLUSIONS. The topic of the article aims to reveal how the decisions and advisory opinions of the EAEU Court are executed. The study identified the features of the competence of the EAEU Court at the present stage, as well as possible ways of its development until 2025. The similarities and differences of judicial acts of the EAEU Court – binding decisions and non-binding advisory opinions – are considered. It was concluded that the decisions of the EAEU Court differ from decisions of other international courts – they are binding erga omnes and have the functions of restoring violated rights and directing the judicial practice of national courts, while the advisory opinions can be considered exclusively non-binding only in part, since they contribute to the formation of opinio juris of States and the Eurasian Economic Commission.The study showed that the execution of decisions and advisory opinions of the EAEU Court occurs at various levels – by the Court itself, by the losing party (voluntarily or compulsorily), in the national judicial authorities; the practice of execution of advisory opinions made it possible to reveal that the advisory opinions of the EAEU Court are essential, since they form opinio juris in the EAEU and are taken into account by national judicial and legislative bodies in various fi lds – antitrust regulation, establishing the status of foreign players in sports competitions and others, as well as helping to protect the interests of international civil servants of the EAEU bodies.
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