Some aspects of the formation of a new international legal consciousness

Paramuzova Ol'ga Gennad'evna PhD in Law Associate Professor, Department of International and Humanitarian Law, Northwestern Institute of Management; Branch of the Russian Presidential Academy of National Economy and Public Administration 197022, Russia, St. Petersburg, St. Petersburg, Kamennosostrovsky Prospekt, 66 paramuzova-og@ranepa.ru Other publications by this author

The international law of the XXI century is on the verge of change, given the depth of the problems experienced by the human community today.^[20]The peculiarities of modern international relations require a qualitative revision, updating and purposeful work on the implementation of the urgently needed further codification of general international law. The effectiveness of the rule-making process will be successful only in conditions of a well-established and detailed mechanism of international law enforcement, as well as under the condition of the inevitability of international legal responsibility for the commission of internationally wrongful acts.

It seems obvious that the authority of international law has been significantly undermined in recent years, which requires reasserting faith in the inviolability and necessity of the existence of an international legal system as a guarantor of the continued existence of mankind in conditions of stable and inviolable international peace and security ^[6].

In our opinion, one of the possible ways to raise the value of general international law may be the modernization of international legal awareness, which should be filled with qualitatively new content due to the need to solve problems related to the increasing new threats and challenges to the existence of mankind.

Within the framework of this study, it is interesting to consider some aspects of the interaction and mutual influence of universal and regional (on the example of the SCO) international legal systems, as well as to analyze the vector of mutual influence of such elements of these systems as the modernizing regional legal consciousness (on the example of the SCO) and universal international legal consciousness.

Starting a conversation about the key features of modern international legal awareness at the universal level, it is necessary to note the importance of their statement and determine their role and importance in solving the existing problems of international security.^[3,4] It is obvious that the number of such problems has both increased and diversified enormously in recent years. Whatever sphere of international relations we talk about, they are all affected to some extent by these obstructive changes, but the field of legal relations seems to have suffered more.

Modern international law is negatively affected by the illegal behavior of both its public subjects and non-State actors in international relations.

The universal system of international security ^[2], which has developed on the basis of the UN Charter, despite its legal significance, justification and legitimacy of existence, should be modified taking into account modern threats and challenges, and maybe even to some extent transformed into a new international legal structure.^[8,14]

The politics and law of modern states are undergoing significant changes, which are directly related to the transformation of social relations and ties both within individual States and in the international arena.^[21] It is obvious that the process of renovation of national legal consciousness is currently underway, the replenishment of which is undoubtedly associated with a rethinking of international legal values and a qualitative renewal of international philosophical and theoretical legal concepts. Moreover, this process claims to be long-lasting.^[10,15]

In modern conditions of the international legal order, there is a tendency to form a new international legal consciousness. This is evidenced by a number of factors. Let's note the most important of them. Firstly, the nature of relations between the great powers has become more complicated in the context of a qualitative change in the global picture of the world order. ^[9] Secondly, the concept of the use of force to solve problems of political interaction between States prevailed. Thirdly, there has been a diversification of the participation of individuals in international legal relations. Fourth, concepts are being replaced when identifying certain legally significant actions of subjects of international law in the geopolitical system of the modern world order. Fifth, new scientific and theoretical conceptual developments are emerging in the context of a qualitative analysis of the effectiveness of the functioning of the interstate system. Sixth, the approach to solving the problems of implementing international legal responsibility, as well as the expediency and adequacy of imposing sanctions on subjects of international law, has changed. ^[18,19]

National legal awareness, as is known, is one of the components of the national legal system, the other elements of which are: national legal norms enshrined in legitimate sources of law in each particular state in the formal legal sense, that is, positive law in force in the country; as well as legal relations established in a particular state, objectively determined by the conditions of political and the legal development of this state.

Regional legal awareness is an element of a particular regional legal system, in our case, the Shanghai Cooperation Organization. Similarly to the above provisions regarding national legal awareness, it is possible to define the features of regional legal awareness. In addition, it should be added that the formation of regional legal awareness is influenced by the peculiarities of the national legal awareness of the States of this geographical region and vice versa.

Thus, one of the driving forces in achieving the goal of this study is the need to find ways to solve the problem of the mutual influence of elements of the SCO regional legal system on the process of changing regional legal awareness in the context of updating international legal awareness.

Guided by the considerations of achieving completeness and clarity of writing this article, it seems to define as the starting point of our research the study of the peculiarities of interaction of the intrastructural elements of the legal system of the Shanghai Cooperation Organization. However, first of all, it is necessary to turn to the primary sources that laid the fundamental foundation of the SCO and determined its legal nature.

The Shanghai Cooperation Organization is a regional international organization established in 2001 by five States that became its original members, namely: the Republic of Kazakhstan, the People's Republic of China, the Kyrgyz Republic, the Russian Federation, the Republic of Tajikistan, the Republic of Uzbekistan. The SCO's source base was the following documents adopted in 2001: the Statement of the Heads of Government of the Shanghai Cooperation Organization member States, the Declaration on the Establishment of the Shanghai Cooperation Organization, the Shanghai Convention, the Joint Statement of the Heads of the Republic of Kazakhstan, the People's Republic of China, the Kyrgyz Republic, the Russian Federation, the Republic of Tajikistan, the Republic of Uzbekistan.^[13]

From the very beginning of its existence, the Shanghai Cooperation Organization has defined the leitmotif of its activities as the fight against terrorism, extremism and separatism in their various manifestations. In addition, it is worth emphasizing that initially a characteristic feature of the process of developing cooperation between the Shanghai Five countries was the so-called "Shanghai spirit", which can be considered as a specific feature of regional legal awareness within the SCO. The essence of the "Shanghai spirit" can be defined as follows: establishing and maintaining mutual trust, mutual benefit, equality, conducting mutual consultations, affirming and maintaining respect for the diversity of cultures, striving for joint development.

The main directions of the SCO's activities were defined in the SCO Charter adopted on June 6, 2002. As such, we will name the following: maintaining peace and strengthening security and trust in the region; searching for common points of view on foreign policy issues of common interest, including in international organizations and international forums, developing and implementing measures to jointly counter terrorism, separatism and extremism, drug and arms trafficking, and other types transnational criminal activities, as well as illegal migration, coordination of efforts on disarmament and arms control issues; support and promotion of regional economic cooperation in various forms, promotion of favorable conditions for trade and investment in order to gradually realize the free movement of goods, capital, services and technologies; effective use of existing infrastructure in the field of transport and communications improving the transit potential of the member states, developing energy systems; ensuring rational environmental management, including the use of water resources in the region, implementing joint special environmental programs and projects; providing mutual assistance in preventing natural and man-made emergencies and eliminating their consequences, exchanging legal information in the interests of developing cooperation within the SCO; expanding interaction in the fields of science and technology, education, health, culture, sports and tourism. However, this list is not exhaustive, because the SCO member states can, by mutual agreement, expand the areas of cooperation.

The SCO Charter also defined its bodies, namely: the Council of Heads of State; the Council of Heads of Government (Prime Ministers); the Council of Foreign Ministers; Meetings of Heads of Ministries and/or Departments; the Council of National Coordinators; the Regional Anti-Terrorist Structure.

Based on the analysis and study of these primary sources, conclusions can be drawn regarding the legal nature of the Shanghai Cooperation Organization.

Firstly, it is an international intergovernmental organization operating on the basis of its constituent documents, primarily on the basis of the SCO Charter of 2002;

Secondly, the SCO structure was created on the basis of the Shanghai Five mechanism, which, according to the will of the SCO founding states, should be raised to a higher level of cooperation. Thus, we can talk about the process of succession between a specific form of cooperation between the Shanghai Five States and an international intergovernmental regional organization with all the ensuing consequences. For example, common goals, objectives, principles, and legal bases of activity. At the same time, the acquisition by the cooperation mechanism of the legal status of an international organization legitimized the new international organization as a full-fledged subject of international law.

Thirdly, the SCO recognizes and emphasizes in all its acts the priority of the United Nations and the supreme legal force of the UN Charter.

Fourthly, the SCO's peculiarity is its "non-orientation" against other states and international organizations and its openness to broad cooperation with them.

Fifth, it is a regional international organization open to new members. Thus, compared with 2001, there were two more Member States, and today these are the following countries: India, Kazakhstan, China, Kyrgyzstan, Pakistan, Russia, Tajikistan and Uzbekistan. In addition, there are observer states under the SCO: Afghanistan, Iran, Mongolia and Belarus (may, with the consent of the SCO member states, attend meetings of SCO bodies and participate in the discussion of issues on the agenda without the right to make decisions). In addition, ten more countries want to join the SCO, in particular: the UAE, Syria, Qatar, Saudi Arabia.

Sixth, it is, first of all, an international security organization of a special kind. The leitmotif of its activity is the approval of a new type of security concept based on the principles of mutual trust, mutual benefit, equality and interaction, contributing to the radical weakening of factors undermining security and the eradication of sources of new threats. The topic of security is a red line in all internal and external activities of the organization. Moreover, security activities are carried out both at the regional and universal international levels. As V. Lavrov rightly noted, the new security architecture put forward by the SCO member states should have the following qualitative characteristics:

- reflect the balance of interests of all subjects of international relations;

- to ensure that each State has the right to independently choose the path of development in accordance with its own historical experience and national specifics, to protect State unity and national dignity, and to participate on an equal basis in international affairs;

- to guarantee the settlement of international and regional conflicts and crises by political and diplomatic means in strict accordance with the principles and norms of international law, taking into account the legitimate interests of all parties involved;

- respect the cultural and civilizational diversity of the modern world.^[7]

Seventh, this organization initially designated the creation of a Global System to prevent new threats and challenges as one of the most important areas of its activities. Moreover, the list of such threats and challenges is very wide and multifaceted. One of the serious threats is the danger associated with the use, proliferation, improvement and build-up of weapons of mass destruction. Thus, nuclear weapons are of particular concern, the possibility of using them has increased enormously in recent years. In particular, we are talking about the escalation of relations between the great nuclear powers in connection with the conduct of a special military operation on the territory of Ukraine, as well as the possibility of committing acts of nuclear terrorism using nuclear weapons and dirty bombs.

In addition, it should be noted that in addition to the military aspects of nuclear activities, the SCO is also concerned about problems more related to the peaceful atom. Among such problems, the following can be highlighted, in particular:

1.                  The possibility of switching peaceful nuclear activities to military purposes. Thus, the peaceful nuclear activities of threshold and near-nuclear States, which are potentially capable of reaching a critical stage of uranium enrichment and creating nuclear weapons, are of particular concern. ^[11] That is why the SCO attaches such great importance to the strict fulfillment by member States of their obligations in accordance with the Joint Comprehensive Plan of Action on the Iranian Nuclear Program and in accordance with UN Security Council Resolution 2231.

2.                  The possibility of attacking peaceful nuclear facilities. Undoubtedly, in this regard, the acts of unlawful use of force against the Zaporizhia NPP that have already taken place are particularly dangerous, but this does not at all exclude the need to take appropriate measures, and first of all, through the use of the IAEA control mechanism, to prevent potentially possible acts of interference in the activities of other nuclear facilities and installations. ^[12]

3.                   Ensuring the physical protection of nuclear materials by preventing possible acts of nuclear terrorism, both during the transportation of nuclear materials and radioactive substances, and during the burial of radioactive waste, storage and reuse of nuclear fuel.

4.                   Prevention of radioactive pollution of the environment.   

Summing up the analysis of the SCO's activities in the nuclear sphere, it can be stated that there are still such features of the SCO's legal nature as: the use of an integrated approach to solving global problems related to modern threats and challenges to international peace and security; the use of existing international legal mechanisms (universal and regional) to solve such problems, among which a special role international organizations competent in this field should play a role; carrying out activities in the field of maintaining international peace and security, guided by the basic principles of international law, as well as the indisputable recognition of the legitimacy of the universal system of international security based on the UN Charter.    

Eighth, in the SCO acts, when determining its legal competence within the designated geographical region, special importance has always been attached and will continue to be attached to the need to form a special legal mindset for the implementation of the organization's law enforcement activities. As a result, it is possible to state the facts of the emergence, genesis and prospective development of such a concept as a specific legal awareness within the SCO.

Ninth, taking into account the above, it seems appropriate, justified and objectively deterministic to designate the existence of such a specific legal system as the SCO regional legal system, which is structurally deterministic and dynamically developing ^[5].  

The study of the peculiarities of regional legal awareness within the framework of the Shanghai Cooperation Organization is really of interest from the point of view of using the SCO experience to work on improving the effectiveness of the mechanism of general (universal) international legal regulation. What is actually achievable at the regional level is not always quickly translated into real life at the global level, due to the lack of readiness for such modifications of the interstate system, because, as it seems, the regional international legal system is more flexible and more capable of modernization than the universal international legal system.

It has already been mentioned above about the specifics of the SCO legal system and the main directions of its activities. At this stage of the study, it seems necessary to highlight the peculiarities of the SCO legal consciousness, the essence of the so-called "Shanghai spirit". To achieve this goal, there is no need to dwell in detail on the analysis and detailed study of the entire variety of legal concepts, ideas, thoughts, scientific concepts and practical views that exist, appear and develop within the SCO. In our opinion, taking into account what has already been said above, in order to study the specifics of the legal consciousness emerging in the SCO today, it is possible to dwell in more detail on such a characteristic phenomenon of the SCO as: "Dialogue of Cultures" and consider it as one of the components of modern legal consciousness within the SCO ^[1].

Speaking about the "Dialogue of Cultures", it should be emphasized that its importance and the possibility of practical implementation both at the national and international levels are emphasized to a greater or lesser extent in all legally significant SCO documents. For example, Article 1 of the SCO Charter, in the list of main goals and objectives, along with regional security and economic cooperation, names "the promotion of effective regional cooperation in the cultural sphere ... the promotion of comprehensive and balanced economic growth, social and cultural development", the ultimate goal of which is to strengthen mutual trust and friendship between the member states and good neighborliness. In addition, references to the "Dialogue of Cultures" are found on the websites of a number of international organizations, including the International Public Charity Foundation "Dialogue of Cultures – One World" under the Committee of Non-Governmental Organizations of the Economic and Social Council (ECOSOC) The United Nations, the Committee on Culture and Education in the European Parliament and the Directorate General for Education and Culture of the European Commission, operating within the EU. A page has been created on the Info-SCO information site called "Dialogue of Cultures" And, finally, it is very obvious that the problem of further development and strengthening of cultural interaction is one of the most important topics of discussion at the annual meetings of Ministers of Culture and the international forums "Dialogue of Languages and Cultures of the CIS and the SCO in the XXI century", held within the framework of the Shanghai Cooperation Organization.

The "Dialogue of Cultures" is one of the main forms of interaction between the SCO member states, which coexist within a limited territory, have common borders and are firmly linked to each other by common political and regional international legal spaces. In this regard, cultural interaction within the SCO, in our opinion, can claim to be one of the main stabilizing factors of regional security in Central and East Asia.

Based on the results of the study, the following conclusions can be drawn:

1. The Shanghai Cooperation Organization is a dynamically developing international legal structure that has the status of a full-fledged subject of international law and has a significant impact on the formation of a new international legal order in the light of today's threats and challenges to regional and universal international security.^[16]

2. The Shanghai Cooperation Organization is endowed with its own will and a characteristic, inherent only to it, international legal consciousness, the content of which is determined by the specifics of the so-called "Shanghai Spirit".

3. The Shanghai Cooperation Organization is actively involved in the process of international norm-setting, the directions of which are largely predetermined by the fundamental ideas originally embodied in the basic documents that defined the special international legal structure of cooperation between the States of Central and East Asia.

4.                  The positive experience of the Shanghai Cooperation Organization in solving the main tasks of its activities can be used by the international community to solve universal problems of international security.^[22]

5.                  The uniqueness and modernity of the content of regional international legal awareness within the framework of the Shanghai Cooperation Organization can serve as a model, a possible model, for the modernization of universal international legal awareness and contribute to the success of the process of increasing the effectiveness of general international law.^[17]

6. The "Dialogue of Cultures" is one of the main forms of interaction between the SCO member states and plays the role of one of the main stabilizing factors of regional security in Central and East Asia. It seems justified to widely use this form of interaction at the universal level, since such activities will establish cultural harmony in relations between the countries of the world and strengthen their trust in each other. As a result, the authority of general international law will increase, as well as the level of international security

7. Despite the justification for using the positive experience of the Shanghai Cooperation Organization to improve the effectiveness of the mechanism of international legal regulation, one must always remember the legal force and supremacy of the UN Charter, the priority of universal international law and, above all, the norms of Jus cogens, as well as the exceptional role of the UN Security Council in the maintenance of international peace and security. security.^[18,19]