Shinkaretskaya G.G. —
An outline of private international law in the branches of public international law
// International Law and International Organizations. – 2021. – ¹ 2.
– P. 55 - 67.
DOI: 10.7256/2454-0633.2021.2.35889
URL: https://en.e-notabene.ru/mpmag/article_35889.html
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Abstract: The author reviews the key aspects of using the norms of private international law in intergovernmental relations, development of the universal legal norms and methods in the conditions of globalization. It is noted that public and private international law differ in multiple parameters, particularly the method of regulation. Private law relationships are regulated by the national legislations, while public law relationships are regulated by international treaties, which can be expressed in form of agreements, customs, or tacit consent. consent form. The author underlines the importance of distinguishing between the sphere of private and public law, as well as proper application of the corresponding regulatory mechanisms. To research employs formal-logical, systematic, comparative, and other methods. The relevance of modernizing legal regulation of foreign economic activity is emphasized. The author notes that the norms that establish the procedure for regulating the behavior of private and legal entities have been included into the international law. The manifestation of this phenomenon can be seem in the international investment law (investment process), law of the sea (in the area of resource extraction). The future position of privately held companies in the development of lunar resources is being actively discussed. This phenomenon can be substantiated by the need to establish a unified rule of law for the activity of non-state actors in the corresponding branches of international law.
Shinkaretskaya G.G. —
Analogies in International law and problems of the development of space law
// International Law. – 2021. – ¹ 2.
– P. 25 - 36.
DOI: 10.25136/2644-5514.2021.2.35927
URL: https://en.e-notabene.ru/wl/article_35927.html
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Abstract: This article indicates that the existing international space law fails to regulate the dynamically developing space activity. The International policy-making in this sphere has established when the applied space activity virtually did not exist. Currently, the actively developing and very profitable space activity, for the most part involves the economic entities. The author notes that a range of means, such as contracts, recommendation documents, and national legislation are employed in the development of space law. The question raised whether the analogy can be applied for the development of international space law. This method of filling the gaps is widespread and largely used in private international law; however, its value for the public international law has not been determined. An essential issue is the ratio between the formalized sources of law and analogies; methodology for determining the existence of deficiencies of law; criteria for similarity and difference of the situations that imply the use of analogy. For solving the set tasks, the author uses the formal-logical, systemic, comparative, and other research methods. The author believes that it is possible to trace several factors that allow using analogies in the international law. The analogy should be substantiated for each individual case; it is necessary to draw comparison between regulated and unregulated cases; determine the identity of the elements that are relevant for application of analogy.
Shinkaretskaya G.G. —
Proof in international court proceedings: articulation of the problem
// International Law. – 2020. – ¹ 4.
– P. 60 - 71.
DOI: 10.25136/2644-5514.2020.4.32613
URL: https://en.e-notabene.ru/wl/article_32613.html
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Abstract: One of the important elements of international court proceedings is the acquisition of information materials upon which the court makes its decisions. Such information, same as in the context of domestic courts, is called judicial evidence. The constituent documents of international courts contain very meager regulation of acquisition and evaluation of the evidence. The parties to international legal proceeding are the sovereign states, which makes it primarily adversarial. This implies that the parties represent the facts that confirm their positions. However, international courts rely on the principle of jura novit curia (“the court knows the law”), i.e. the parties to legal dispute do not need to plead or prove the law that applies to their case. This problem gains special importance due to the growing number and variety of international courts, as well as the emergence of a number of quasi-judicial institutions; in this sphere, all of them rely on the jurisprudence of the International Court of Justice. Certain new trends are traced in the practice of courts and even categories of cases that pertain to human rights.
Shinkaretskaya G.G. —
The concept of evidence in the international judicial process
// International Law. – 2020. – ¹ 2.
– P. 70 - 81.
DOI: 10.25136/2644-5514.2020.2.32629
URL: https://en.e-notabene.ru/wl/article_32629.html
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Abstract: This article discusses evidence in the judicial process as the information serving as grounds for court’s decision. In the international judicial process, which mostly of challenge character, significant role belongs to the sides, and the sides present the courts with information that substantiates each of their positions. The court, being an independent body, evaluates and selects information that it considers necessary to hear the case. It is advanced that the theory of international justice still lacks established and generally accepted procedure for selection of information. Such rules are formed in the judicial process and admissibility of these rules by the states or other subjects of international law. This work highlights the importance of determining comparable approaches towards the process of evidence in various international judicial bodies. Special attention is given to the issues of distribution of the burden of proof, methods, forms and standards of evidence applicable in the international judicial process.