International civil law/private law
Reference:
Patronova A.R.
The problem of dividing the rights of beneficiaries to property transferred to a foreign trust as common property of spouses
// International Law.
2024. ¹ 3.
P. 1-12.
DOI: 10.25136/2644-5514.2024.3.71811 EDN: JBHVWR URL: https://en.nbpublish.com/library_read_article.php?id=71811
Abstract:
The article is devoted to the study of the legal nature of the beneficial rights of spouses to jointly acquired property. Using the example of judicial practice of the courts of the Russian Federation, the author analyzes the possibility of dividing the rights to property transferred to a foreign trust in Russian jurisdiction. The obscurity of such concepts as "trust" and "beneficial ownership" in the domestic legal system leads to a number of problems in resolving this category of disputes, which leads to insecurity of the rights and legitimate interests of interested parties. The relevance of the problem under consideration is due to the lack of uniform practice and, as a result, the approach of Russian courts to the qualification of beneficial rights. Most often, the courts proceed from the impossibility of declaring these rights to be divided due to their non-recognition as property by the Civil Code of the Russian Federation and as common property of spouses by the Family Code of the Russian Federation. The article examines the advantages of applying foreign law in the consideration of disputes on the division of common property of spouses transferred to a foreign trust. In the course of the research, the author turns to the method of comparative analysis to identify the main contradictions of judicial practice in this category of disputes. The conducted research revealed the need to turn to foreign law not only at the stage of dispute resolution, but also in the qualification of legal concepts, due to the unknown institutions of trust and beneficial ownership of the domestic legal system. The author concludes that there are such legally significant circumstances for the fair resolution of the mentioned category of disputes: establishing the figure of the beneficiary, submitting documents to the court on the establishment of the trust, proving the property interest of the interested party in the property transferred to the trust. Due to the current disparate practice of Russian courts, it is necessary for the Supreme Court of the Russian Federation to clarify the obligation of courts to apply to foreign law when considering disputes complicated by a foreign element, in particular in disputes over the division of property transferred to a foreign trust.
Keywords:
applicable law, legal nature, qualification of legal concepts, foreign law, beneficial rights, trust, court, matrimonial property, separation of property, spouses
Development of separate branches of international public law
Reference:
Yin Y., Zhang Z.
Application of Article 25 of the Draft Articles on Responsibility of States for Internationally Wrongful Acts
// International Law.
2024. ¹ 3.
P. 13-24.
DOI: 10.25136/2644-5514.2024.3.71935 EDN: LTYQRJ URL: https://en.nbpublish.com/library_read_article.php?id=71935
Abstract:
As human exploration and use of outer space increases, the problem of space debris becomes more acute. The accumulation of space debris poses a huge threat to the exploration and use of outer space and may also affect the Earth's atmosphere and the environment. International organizations encourage national and non-governmental organizations to take initiatives in removing space debris. However, current international space law does not contain comprehensive rules governing the active removal of space debris of other States, which does not allow establishing the legality of such actions in international law. In the context of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARS), it would be useful to clarify the issue of State responsibility for the active removal of space debris of other States. This article uses the literature review method and the case analysis method. In particular, a detailed analysis of the application of the relevant provisions of ARS was conducted, which provides useful ideas for solving the problem of space debris and regulating space activities. It was noted that it is necessary to improve the legal system and that the active removal of space debris of other States should be discussed on a case-by-case basis. If the country to which the space debris belongs clearly does not consent to other countries to clean up its space debris, then continuing to clean up the space debris of other countries should be determined to be an internationally wrongful act. However, after a country takes the initiative to clean up the space debris of other countries, it can also declare a state of emergency to eliminate the illegality of its actions depending on the specific circumstances, thereby promoting the active participation of countries in cleaning up space debris and protecting the space environment.
Keywords:
major and imminent danger, state of necessity, low orbit giant constellation, substantial interest, legality, state responsibility, internationally wrongful acts, active removal, space debris, balance of benefits
Theory and philosophy of international law
Reference:
Malinovskii O.N., Goncharov V.V., Petrenko E.G.
Is public control possible in relation to international governmental organizations: towards the formulation of the problem
// International Law.
2024. ¹ 3.
P. 25-38.
DOI: 10.25136/2644-5514.2024.3.71770 EDN: LLEATU URL: https://en.nbpublish.com/library_read_article.php?id=71770
Abstract:
This article is devoted to the formalization and analysis of the problem associated with the possibility of public control over international governmental organizations. Unlike the public authorities of national States, the constitutions and legislation of most of which provide for the possibility of organizing and exercising public control over their activities, acts and decisions, international governmental organizations created by representatives of public authorities of national States are, in fact, removed from the subject of control of the peoples of the world. This circumstance creates favorable conditions for irresponsibility in the behavior of officials of these international governmental organizations, which leads to violation of the rights, freedoms and legitimate interests of individuals and legal entities provided for by both national legislation and international law. A number of scientific research methods are used in the work, including: formal-logical; comparative-legal; historical-legal; statistical; sociological; method of analyzing specific legal situations. The paper examines the main problems that hinder the organization and implementation by the peoples of the world of public control measures in relation to international government organizations, as well as their territorial representations in individual states. The authors have developed and substantiated a system of measures to resolve these problems, including by: enshrining in the UN Charter and constituent documents of international governmental organizations the right of peoples to organize and exercise public control over international governmental organizations, as well as their territorial representations in individual states (with details of principles, forms, methods, principles and mechanism measures of the specified control, types of its subjects authorized to carry out these public control measures); creation of interstate and international associations and unions of public control, which should be empowered to carry out the above-mentioned measures; consolidation in international and national legislation of a system of measures of legal responsibility for countering the specified subjects of public control in the organization and conduct of the above-mentioned public control measures organization of scientific and practical research on the problems of this type of public control; development of a system of measures to verify the effectiveness and efficiency of the work of the above-mentioned subjects of public control.
Keywords:
people's sovereignty, democracy, problem statement, governmental organizations, international, public control, state sovereignty, national sovereignty, Russian Federation, efficiency
International courts
Reference:
Sergeeva A.A., Voskoboinik I.O., Pitulko K.V., Sokolova E.V.
"Transitional justice": general characteristics
// International Law.
2024. ¹ 3.
P. 39-51.
DOI: 10.25136/2644-5514.2024.3.71975 EDN: KNJSKR URL: https://en.nbpublish.com/library_read_article.php?id=71975
Abstract:
The subject of the study is a special procedural mechanism for establishing the circumstances of the commission of genocide and other crimes against humanity during the functioning of various totalitarian regimes that widely use the practice of mass violations of human rights, the ideology of historical exclusivity, and the destruction of civil society institutions. Usually we are talking about states that have survived dictatorship or war, so the center of judicial knowledge is, first of all, precedents of gross violations of the rules of warfare, torture, mass executions, slavery. The declared goals of "transitional justice" are the rehabilitation of victims of repression. The authors conducted a study of the activities of special judicial presences and truth and reconciliation commissions, summarized the mediation experience implemented in the states of Africa and Southeast Asia. The research methodology is based on the principles of dialectical cognition, as well as a wide range of general scientific and private scientific methods (analysis, synthesis, legal comparative studies). The main conclusions of the study are concentrated around the specifics of the subject jurisdiction of conciliation commissions and tribunals, covering only acts of violence against the civilian population. For the first time, the authors have assessed the effectiveness of these institutions in a number of states. The various methodologies that make up "transitional justice" usually combine the "healing" measures of restorative justice (truth and reconciliation commissions) and a parallel system of punitive justice (mainly against those primarily responsible for the most serious crimes and their direct perpetrators). The text of the article substantiates that the activities carried out within the framework of "transitional justice" are aimed at reforming social institutions by restoring the rule of law and ensuring the functioning of constitutionally established judicial bodies in the future.
Keywords:
The Tribunal, genocide, tolerance, crimes against humanity, mediation, conciliation commissions, international judicial authorities, justice, human rights, judicial presence
Development of separate branches of international public law
Reference:
Shugurov M.V., Pechatnova Y.V.
Problems and prospects of scientific and technological cooperation between Russia and India in modern conditions: international legal dimension
// International Law.
2024. ¹ 3.
P. 52-95.
DOI: 10.25136/2644-5514.2024.3.72085 EDN: XGTSTF URL: https://en.nbpublish.com/library_read_article.php?id=72085
Abstract:
The subject of the study is the intensification of cooperation between Russia and India in the field of science, technology and innovation in the context of responding to anti-Russian sanctions against Russian science. The purpose of the article is to identify the initiative directions of scientific and technological cooperation between the two countries in modern conditions, which will effectively implement the provisions that form a systemic legal framework for bilateral cooperation. The article shows that Russia is the initiator of the intensification of cooperation, intending to compensate for the damage caused by the loss of institutional ties with some of the main partner states in the scientific field. The authors elaborate on the characteristics of the mechanism of legal regulation of Russian-Indian scientific and technological cooperation both from the point of view of its historical formation and through the prism of its compliance with the modern needs of intensifying bilateral cooperation. In the process of achieving the research goal and solving the tasks set, the authors used the following methods and approaches: historical and legal method, forecasting method, formal dogmatic method, systematic approach, modeling method. The authors of the article came to the conclusion that the operation of the developed international legal mechanism for regulating the ISTC of the two countries has become the basis for the successes achieved in long-term cooperation. This mechanism combines the implementation of the provisions of intergovernmental bilateral agreements (vertical level), as well as the provisions of agreements concluded between Russian and Indian institutions of the scientific and educational sphere (horizontal level). The directions of cooperation and the prospects for its regulation are set by political and legal documents of a strategic nature (declarations, statements, memoranda). All this is complemented by the use of a programmatic method that creates conditions for the implementation of relevant international legal obligations. The organizational mechanism is represented by intergovernmental structures. At the same time, currently this cooperation is not so significant in its scope, and the provisions of political and legal documents sometimes have the character of declarative intentions, which are not yet embodied in a wide range of specific scientific projects. The novelty of the article lies in understanding the prospects of the Russian-Indian ISTC through the prism of solving the problem of enhancing Russia's participation in cooperation in geographical areas not complicated by sanctions.
Keywords:
research funding, academic exchange, joint projects, innovation, strategic partnership, Russian-Indian cooperation, antirussian sanctions, scientific-technological cooperation, mutual interest, technology transfer