Hasil untuk "Law of nations"

Esther Vicente

A. Р. Klementiev

INTRODUCTION. Derivative financial instruments (derivatives) are in high demand in international commercial turnover. Although the economic and legal literature presents the point of view that derivatives can exist in the form of securities, the most common is the contractual approach to derivatives. According to this approach, derivatives are commercial contracts, the value of which depends on a certain variable known as the underlying or base asset. In some cases, derivative contracts have cross-border nature and thus they can be viewed as international commercial contracts. Despite the existence of Russian-language derivatives studies published by Russian legal scholars, derivative financial instruments are usually considered in domestic rather than international context. In the present publication, the author makes an attempt to fix this gap and analyzes transactions with derivatives as international commercial contracts accompanying cross-border movement of goods and services. The main emphasis in the article is made on standard templates used by the parties to contracts that are derivative financial instruments.MATERIALS AND METHODS. The author used 2002 ISDA Master Agreement as a basic source for the present article. This agreement is the most recent version of a standard framework contract for derivatives trading in international financial markets. The methodological base of the publication is represented by general scientific methods (analysis, synthesis, induction, deduction) as well as specific legal research methods. In particular, formal legal method was employed for the literal interpretation of the provisions of the standard documentation, while historical method was invoked to describe the evolution of standard derivative market templates. Apart from that the author employed statistical methods to evaluate the volume of derivatives market and the place that standard contracts have in over-the-counter derivatives trading.RESEARCH RESULTS. The article claims and proves that over-the-counter derivative transactions can be defined as international commercial contracts that fall under the scope of international private law. Over-the-counter derivatives transactions are concluded based on standard templates containing provisions related to dispute resolution and applicable law. The research made covered such issues as contractual parties, the form of cross-border derivative transaction, the contents of the contract as well as the liability following the breach of contractual obligations. The key feature of these agreements is the possibility of early termination through close-out netting. Another feature is the flexibility when concluding transactions as they may be entered into orally while the failure to deliver a formal document evidencing the terms of the trade does not lead to the invalidity of the transaction itself.DISCUSSION AND CONCLUSIONS. The author comes to conclusion that ISDA standard templates are widely used in international trade. This fact is evidenced by case law as all doctrinal sources. However following the introduction of unilateral restrictive measures adopted by foreign states, the ISDA role in contractual regulation of derivative trading will decrease due to their unavailability to Russian parties.

V. N. Koval, S. A. Vasiliev, E. V. Godovanik et al.

INTRODUCTION. In modern international and domestic maritime law, regional fragmentation of legal regulation is becoming more and more noticeable, which, in turn, objectifies and actualizes the formation of complex arrays of legal norms, united by the consistency of the political and legal positions of the contracting states that have national interests in the relevant water area, primarily-coastal states extending their state sovereignty to certain areas of maritime space. In this context, the Greater Mediterranean region should be considered as one of the most important in the world merchant shipping and naval support of international peace and security, as a basin that optimally connects the Atlantic and Indian Oceans from the point of view of logistics, which requires the formation of an appropriate scientific and methodological basis for full implementation of the fundamental principle of international cooperation in the maritime policy of the states of the region.MATERIALS AND METHODS. To substantiate the expediency of singling out the Greater Mediterranean as an independent object of legal regulation, general and special international legal treaties, the domestic legislation of the Mediterranean states, as well as political and legal documents indicating the existence of certain disputes and situations around certain zones of the Mediterranean water area, primarily – in the Eastern Mediterranean region. To obtain reliable and substantiated results of the study, methods of scientific knowledge were used: formal-legal, logical, historical-legal, system-structural analysis. Thus, the formal legal method made it possible to clarify the content and meaning of international legal treaties concluded at different times and aimed at regulating public relations in the maritime sphere. The logical method made it possible to substantiate the need for comprehensive international cooperation of the coastal states of the Greater Mediterranean. With the help of the historical and legal method, an overview was made of both the world, Soviet and Russian practice of applying the norms of domestic and international law on issues related to ensuring international law and order in the Greater Mediterranean region. The logical method made it possible to build the necessary connections and patterns of development of international legal regulation in the Greater Mediterranean region in the general context of ongoing universal and regional political and legal processes and transformations. Using the method of system-structural analysis, it was possible to display a holistic picture of law-making and law enforcement of the Mediterranean states, aimed at the formation of unified principles and norms for the exercise of the sovereign rights of coastal states.RESEARCH RESULTS. International maritime merchant shipping seems to be a very complex area of public relations with a large number of entities that have different legal status and, accordingly, are related to each other in a very different way.DISCUSSION AND CONCLUSIONS. This work is devoted to the study of the main trends in the development of the Greater Mediterranean region in terms of formulating key international legal guidelines and rules of conduct for its constituent states. The object of the study is the legal relations carried out in the maritime spaces of the Greater Mediterranean as one of the key regions, which, along with its economic and political significance, is an integral zone for the implementation of the national interests of the Russian Federation, extending to the entire World Ocean.

Nafiu Ahmed Arikewuyo

From the 60s of the 20th century, the works of Sayyid Quṭb have enormous influence on the thought of Muslim youths and Islamists. The core message of his works is establishing the supremacy of Islamic law in all facets of life and outright condemnation of the subsisting order of the day concerning the political and socio-economic operations in Muslim nations. The effect of his thoughts on Muslim youths is visible in the resurrection of Islamists who have become a thorn in the flesh of political dictators and autocratic monarchs in Arabia. As part of efforts to neutralize the effects of Quṭb’s works on the ever-increasing Muslim youths in Saudi particularly and the Muslim world at large, Rabi’u Madkhali, a senior Salafi diehard with much influence in Madinah, kickstarted the project of refuting what he termed as "theological deviations” and “rebellious approach” in Quṭb’s thoughts. His works have given birth to a large number of Muslim youths who dedicate an extraordinary commitment to pathological hatred for Quṭb, his works, associates, and students. This article aims to criticize some submissions of Madkhali on Quṭb’s thought. The article which is library-based adopts an analytical method of research. Two issues, which include law enactment in a Muslim state and the abolition of the slavery system, are selected. The paper found that Madkhali’s refutations are highly characterized by accusations that need unequivocal proof, misinterpretation of Quṭb’s statements, and emotional submissions. It recommends further investigation into other Madkhali’s refutation of Sayyid Quṭb.

A. B. Mezyaev

INTRODUCTION. The article discusses the theoretical and practical problems of conducting trials in the absence of the accused (in absentia) in international criminal courts and tribunals.MATERIALS AND METHODS. The article is based on international human rights treaties that regulate the rights of the accused in criminal proceedings, the statutory and procedural documents of these courts, and the practice of interpreting and applying the right of the accused to be present at the trial.RESEARCH RESULTS. International human rights treaties establish the minimum rights of the accused in criminal proceedings. Among these rights is the right of the accused to be present at the trial. However, the practice of interpreting this right by the relevant conventional international bodies and international criminal courts and tribunals imposes significant limitations. A number of such restrictions appear to be both reasonable and justified. However, in many cases the restrictions are arbitrary and their justification is legally flawed.DISCUSSION AND CONCLUSIONS. Universal and a number of regional international human rights treaties, in particular, the International Covenant on Civil and Political Rights of 1966 contain norms that are binding not only for states in their application of national law, but also establish general human rights standards in international law. Due to this circumstance, the provisions of such treaties bind any institutions operating directly in the system of international law, in particular, international criminal courts and tribunals. Thus, international criminal courts and tribunals are bound by the provisions of these treaties, not only in terms of their implementation, but also in terms of their interpretation. The practice of these courts demonstrates a very inconsistent application and not always convincing interpretation of the rights of the accused in general and the right to be tried in his presence. Currently, this practice is trying to change the previously formed trend towards increasingly severe restrictions on exceptions to the right of the accused to be tried in his presence.

Jorge Luis Almeida Estrella

The purpose of this article is to question whether the powers of the United Nations Security Council (SC) are subject to any limitation under in-ternational law, especially in the context of the Responsibility to Protect (RtoP) doctrine. And consequently, which organism will be entitled to hold the SC accountable for its actions, and how that organism should do it.The first chapter of this article deals with the possible limitations of the SC, it considers both legal and legitimacy restraints to the broad powers of the SC. Additionally, we will explain how RtoP presents itself as a new challenge to the legitimacy of the SC.Chapter 2 discusses which organisms within the UN system, may be ap-propriate to hold the SC responsible for its actions. Finally, in Chapter 3, we will review the legal status of RtoP, and explain how the ICJ could use Just War criteria as a valuable tool for a judicial review process of SC decisions based on RtoP

Vadim Vinogradov

While a comprehensive research and literature exists on legal responsibility, the nature of constitutional liability is much less explored. Constitutional liability is a crucial tool for strengthening and development of democracy. In practice, not all countries have a direct constitutional and legislative establishment of constitutional liability as a special form of legal responsibility. For example, Russia has its own way of determining constitutional liability, which can serve as grounds for thought provoking reflection in other legal systems. In this article, the author will consider the constitutional liability as a form of legal responsibility, address the questions of interrelation between constitutional liability and other forms of legal responsibility, as well as explore the grounds of constitutional liability by comparing constitutions, a number of various laws, some subordinate legislative acts of Russia and about fifteen other countries. Such analysis allows one to draw conclusions that bring some novelty, newness into the field of public law as a whole.

Letícia Regina Camargo Kreuz

Os servidores públicos brasileiros estão submetidos a um sistema de definição de suas condições de trabalho definido exclusivamente pelo poder público, unilateralmente. A dificuldade na efetivação do direito do servidor à negociação coletiva é o vínculo que se coloca entre os sujeitos do possível acordo, que, segundo parte da doutrina brasileira, reveste-se de caráter estatutário. A prerrogativa para tais definições seria exclusivamente do Estado, através da lei. Uma eventual negociação coletiva envolveria o Executivo, mas quem acaba por definir as condições de fato é o Legislativo. O projeto de lei que estabelece as formas como devem os servidores prestar serviço é enviado ao Legislativo justamente pelo Executivo, mas nem sempre ele será respeitado, pois nenhuma cláusula vincula o Legislativo a acatar parâmetros acordados entre servidores e Administração. A pesquisa objetiva evidenciar a possibilidade jurídica e política da negociação coletiva entre servidores públicos e Administração Pública brasileira, especialmente sob a ótica do direito internacional e da proteção conferida ao trabalhador público pela Organização Internacional do Trabalho. O estudo apresenta a seguinte estrutura: (a) de início, versa sobre o impacto dos direitos humanos positivados em tratados internacionais ratificados pelo Brasil no direito administrativo; (b) apresenta a análise das Convenções n. 151 e 154 e da Recomendação n. 159 da Organização Internacional do Trabalho, que garantem a negociação dos trabalhadores públicos com a Administração; (c) aborda, por fim, as possibilidades de efetivação do direito à negociação coletiva do servidor público, como forma de diálogo entre o direito internacional e o direito administrativo brasileiro. O direito administrativo brasileiro é influenciado pelo direito internacional em razão da Constituição de 1988, notadamente no art. 5º, §2º, com a determinação de que o rol de direitos fundamentais pode ser ampliado em decorrência de outros direitos provenientes de tratados internacionais de que o Brasil seja signatário (chamado bloco de constitucionalidade). Ainda, abre a possibilidade de incorporação desses tratados ao ordenamento na condição de emenda à Constituição com a redação do §3º do mesmo art. 5º.  As Convenções n. 151 e n. 154 da Organização Internacional do Trabalho podem ser aplicadas no país em benefício dos servidores públicos. Sendo signatários de ambas as convenções, o Brasil comprometeu-se com sua aplicação, seja legislativa ou administrativa, uma vez que se trata de normas legalmente vinculantes. Conclui-se que a legalidade remuneratória dos servidores, estabelecida pela Constituição, e o regime jurídico administrativo estatutário a que estão submetidos esses profissionais não devem ser empecilhos à negociação coletiva, na medida em que o acordo entre servidores e Administração pública pode ser encaminhado ao Congresso Nacional para que legisle sobre a remuneração em conformidade com o que foi acordado pelas partes. Quanto às demais condições de trabalho, é possível a negociação coletiva, sem necessidade de lei posterior que dê concretude, seja por previsão constitucional, jurisprudencial (Orientação Jurisprudencial n. 05 da Sessão de Dissídios Coletivos do Tribunal Superior do Trabalho) ou por norma de tratado internacional.

Ratih Herningtyas

This paper aims to describe how a weak state can become a threat to the security of other countries, using Colombia as a case study. Colombia showed a weak state characteristic as seen from the lack of control and the existence of government, military capabilities are limited, dysfunctional judicial system and weak law enforcement, as well as a weak tax collection system. The condition was successfully exploited by drug trafficking organizations to operate as well as deploy a security threat not only for the internal region of Colombia, but also for other nations. The existence of Colombia as a weak state and successfully exploited by drug trafficking organizations causing security threats such as terrorism, weapons proliferation and environmental degradation.

Milosavljević Bogoljub

Natural and human induced disasters have always been one of the biggest threats to human security, quality of life, material goods, the environment, society and the economy. Causes of disasters can have crossborder origins and their consequences can simultaneously affect multiple countries, whole regions, even the whole world. For an efficient response to disaster risks, besides local and national actions, international cooperation is very important and when disasters strike, the affected countries often cannot deal with their consequences without international assistance. Based on these considerations and needs, during the past quarter of a century, within the United Nations system and regional organisations, as well as on the bilateral plan, intensive cooperation has been developed. So far, it has resulted in the conclusion of a number of important conventions and a far larger number of bilateral agreements, and particularly in numerous resolutions, guidelines, guidebooks and other soft law instruments. The author analyses the basic results of international cooperation with an aim to identify the international obligations of the Republic of Serbia in the field of disaster risk reduction. Based on that, the author provides some recommendations important for the improvement of cooperation of the Republic of Serbia in this field and upgrading of the domestic legal and institutional framework.

Regeane Bransin Quetes

H. R. Marshall

H. Illing

E. Posner

I. I. Коtlyarov, Yu. V. Puzyreva

The article notes that the armed conflicts emerged after collapse of the Soviet Union on the territories of the CIS member states gave rise to conclusion of agreements in the sphere of the international humanitarian law (IHL). The first of them was the agreement on immediate measures to protect victims of armed conflicts in 1993. Later in the post-Soviet space the IPA CIS began to play an active role in legislative activity for convergence and harmonization of laws of the states ‒ participants of CIS, including the development of legislation in the sphere of IHL.The authors analyze the model laws in the field of IHL, adopted by the Inter-Parliamentary Assembly of the CIS member states (IPA CIS).

David Francisco Franco Moreno

La definición de la patente de invención como institución jurídica debe efectuarse a la luz de su finalidad como un monopolio legal temporal de explotación que excluye del uso gratuito de la información por parte de terceros no autorizados. En otras palabras, la finalidad última de la patente es el estímulo a la difusión de la investigación científica y no su privatización excluyente, pues sólo de tal forma se armoniza la tensión entre el derecho humano a la protección del ingenio humano, y el derecho humano del acceso a la ciencia y la tecnología. Así las cosas, ni la patente protege información que no aporte novedad a la humanidad, ni la patente protege a inventores que ejerzan su uso exclusivo de forma abusiva o contra hominem. Tal situación es verificable no sólo en la legislación internacional de los derechos humanos, sino en la misma legislación comercial, tanto internacional como en la comunitaria de la Comunidad Andina de Naciones. Abstract The patent definition must be made in order to it´s purpose as a temporary legal monopoly of exploitation of the free and unauthorized information using. In other words, the ultimate purpose of the patent is the dissemination of scientific research encouraging. In that way could be harmonized the tension between the human rights to the protection of the private interest, and the access to science and technology. So, the patent don´t protects no new information, neither abusive or against hominem use or them. This situation is verifiable in the international law of human rights, and in the commercial and Communitarian law. Résumé La définition du brevet de l’invention comme d’institution juridique doit être effectuée à la lumière de son but comme un monopole légal temporel de l’exploitation qu’il exclut de l’usage gratuit de l’information de la part de troisièmes non autorisés. Dans d’autres mots, le dernier but du brevet est la stimulation à la diffusion de la recherche scientifique et de non sa privatisation exclusive, puisque seulement de telle forme la tension est harmonisée entre les droits de l’homme à la protection du génie humain, et les droits de l’homme de l’accès à la science et la technologie. J’ai pris les choses, le brevet protège l’information qui n’apporte pas de nouveauté à l’humanité, le brevet protège les inventeurs qui exercent son usage exclusif de forme abusive ou contre hominem. Telle situation est vérifiable non seulement dans la législation internationale des droits de l’homme, mais dans la même législation commerciale, tant internationale comme dans la communautaire de la communauté andine de nations.

E. Jones

A. Gyory

J. Wiener