Russian Journal of Comparative Law

112-119

Authors: Pavel N. Biriukov

The article deals with the questions of creating the Eurasian Economic Union (hereinafter – the EEU, the Union). The author overviews the history of formation of the EEU and studies legal foundations of Eurasian cooperation. The competence of the Union as an international organization is examined in detail. The author reveals the differences between the concepts of coordinated policy, coherent policy, and common policy of the Union. The main attention is devoted to the analysis of the institutions and legal system of the EEU.

129-133

Authors: Mariya Riekkinen

This article examines separate legal aspects of observing the best interest of the child in the context if intercultural marriage. The author considers these issues on the example of Finnish-Russian marriages. This overview attempts to find answers regarding legal guidelines of settling disputes between the parents in intercultural marriage in the best interest of the child. The author takes into consideration situations of settling custody disputes between the parents also in cases of divorce. For these purposes the author analyses in detail the 2 November 1998 decision by the Supreme Court of the Russian Federation on the case No. 4-G98-16 that had not enforced the decision of the Finnish court regarding the custody of a child coming from the Finnish-Russian marriage which had been dissolved. This case is analyzed against the background of the Hague Convention on the Civil Aspects of International Child Abduction. This study was supported by Russian Foundation for Humanities, grant number 14-03-00524 “Protecting the rights of the child in Russian-Finnish family: international standards, cultural differences, and constitutional law regulation.”

140-153

Authors: Alla Tymofeyeva

This paper presents an analysis of the case-law of the European Court of Human Rights regarding the status of a human embryo. At the beginning, the author makes an overview of the legal documents on the subject-matter produced by intergovernmental organisations on both universal and regional levels. The overview covers also a national legislation of Australia, China, Japan, United States and most of the European states. Further the paper elaborates on the decisions and judgments of the European Court adopted for the last fifty five years. The summary of this case-law is provided in a chronological order from the oldest to the newest one. Finally, the author comments on the practice of the European Court of Human Rights with regard to the issue of the human embryo legal position. The case-law in question certifies that human embryo cannot be considered “a thing”, but at the same time it is still not “a person” for the purposes of the Article 2 of the Convention.

59-67

Authors: Dusan D. Dabovic

The aim of this article is to determine the fundaments of agricultural law as a separate area of law in the Republic of Serbia. We study theoretical basis, current state of legal framework of agricultural activities, and corresponding international legal obligation of Serbia regarding agricultural law. The paper starts with a brief introduction, followed by the section with the overview of the basic elements of this area of law in Serbia (definitions, object of legal regulation, relationships with other legal disciplines and areas of law, legal sources and institutions). The author continues with examining the current legal framework of agricultural activities in Serbia, i.e., the constitutional basis and the statutory regulation. The final chapter overviews the provisions of international law regarding agriculture (those treaties which are ratified by Serbia) at the universal and regional level.

74-83

Authors: Andreas Donatsch, Mischa Demarmels

This article discusses the covert surveillance of post and telecommunications as a coercive measure in Swiss criminal proceedings. Since such surveillance interferes with a number of fundamental rights and freedoms, it should meet the requirements of human rights limitations. Firstly, the offence must constitute a so-called “catalogue offence” under Art. 269 para. 2 of the Swiss Code of Criminal Procedure. Further, there must be a strong evidence to suspect that such a catalogue offence has been committed in reality. In addition, the seriousness of the offence must justify the surveillance. Finally, previously undertaken investigative activities must have proven to be unsuccessful, or there are grounds to suspect that in absence of such surveillance the investigation will not succeed or will likely become disproportionately more complicated. Against this background, the authors analyze the latest amendments to the Federal Statute on the Surveillance of Post and Telecommunications (the BÜPF) and their impact on the conduct of criminal proceedings.

91-105

Authors: Ika Riswanti Putranti

Illegal, Unreported, and Unregulated (IUU) fishing is considered as a process which could undermine market competition and cause economic harm to fishermen, and legal fishing industry as a whole. The fish resulted from IUU fishing has the possibility to enter into the supply chain of extra and intra-regional fisheries trading system. Market is a backbone of the ASEAN Economic Community (AEC) construction, where the regulatory and market policies must be favorable to the business environment and competition. Market distortion can cause large-scale loss in industrial fishing, from upstream industries to the downstream of fishery industries. It affects economic operators of marine fisheries. In the last decades the ASEAN as regional organization has been promoting fisheries management to reduce the illegal and destructive fishing. On the other hand, the EU is one of the successful economic regions where the member states integrate own markets into a single market. The EU common fisheries policy has elaborated through many improvements and changes along with the dynamics of the global economy the policies which conditioned the establishment of common fisheries market of a high standard. The common fisheries market is the central engine used by the EU to combat IUU fishing. Therefore, there are two questions raised in this study i.e., to what extent the ASEAN Community Fisheries Legal Framework harmonization is constructed under the AEC? What is the legal implication of the European Union IUU fishing regulations on the construction of the ASEAN Community Fisheries Legal Framework?

59-72

Authors: Hamed Alavi

Historically, litigation is the method of choice for resolving fraud related disputes in Documentary Letters of Credit (hereinafter - LC). However, it is difficult to meet the standard of proof and obtain injunction and stop bank from paying to fraudulent beneficiary. In late 1990’s Blodgett and Meyers proposed for the first time the possibility of referring LC fraud cases to arbitration for the purpose of resolving them by industry experts in shorter period and lower costs in comparison with litigation. Despite the fact that after almost twenty years from Blodgett and Meyer’s proposal, arbitration is not a popular method for resolving LC fraud disputes, it can be considered as an open option for resolving fraud disputes by parties to the letter of credit. Current paper, tries to find an answer to the question of why arbitration is not a popular method in resolving LC fraud cases by exploring existence of possibility to handle LC fraud disputes via arbitration and study legal concerns on the way of arbitrating such cases. On this basis, main research questions will be: (i) whether or not LC fraud cases can be referred to arbitration; (ii) What can be important aspects of arbitration agreement between parties in LC fraud disputes; (iii) What types of remedies are available in case of referring cases of LC Fraud to arbitration tribunal; (iv) Finally, paper will discuss the possibility to resolve LC fraud cases with reference to DOCDEX Rules.

95-101

Authors: Nicolay L. Shelukhin

The article is devoted to the legal status of personnel of private military companies participating in the internal (regional) armed conflict in the east of Ukraine as part of its military formations. The article grounds the necessity of introducing a clarified concept of "mercenary" and reworded concept of "foreign volunteers" in the regulations of international humanitarian law. This article has analyzed the world experience in the field of legislative regulation of activities by private military companies. Its non-legal nature in the structure of the foreign policy activities of different states has been defined. Tendencies of expanding the scope of private military companies activities have been studied. It includes the creation of hired military units, peacekeeping, participation in domestic armed conflicts, the suppression of armed uprisings, terrorism, etc. The necessity of forming national legislation regulating the activities of private military companies has been proved.

107-108

Authors: Alexei A. Moiseev

Russian legal, banking and finance and academic community can now benefit from a high-quality textbook "Currency Law" [1] for Bachelor’s and Master’s students edited by professor Pavel Biriukov, the founder of Voronezh scientific school of international law, the head of International and European Law Department of Voronezh State University, and associate professor Vladislav Ponomarenko, lecturer at Monetary Relations and Monetary Policy Department of Financial University under the Government of the Russian Federation.

4-10

Authors: Frank Altemöller

The ongoing developments show the growing threat posed by international terrorism – including to global trade. This article begins by outlining the initiatives being taken by the US and the European Union for trade security. Their success is, to a considerable extent, dependent on transfers of information between the participating states. But what is the effect of information sharing on the security of data provided by participating companies, for the privacy of citizens and, ultimately, for national sovereignty and the rule of law? This conflict, however, reaches even further. It goes beyond the "issue of security" and impacts deeply on the relationship between the US and the European Union. The article explores the role of public authorities of the US and the EU and the implementation of the relevant international laws and regulations.

20-28

Authors: Peri Izmaylova

The article examines the legal basis on effect of a state officer’s immunity in case of violation of discrete categories of international law norms. An opinion that the state immunity has effect only in respect of sovereign acts and that international crimes in no way can be considered as sovereign acts, particularly so when violation of jus cogens norms in question has a wide prevalence. Particularly often this argument is employed when a state immunity is denied in the process of civil proceedings. Also the article deals with the possibility to extend the ratione materiae immunity to an officer accused in an international crime perpetration. Immunity is spread only on sovereign actions, i. e. acts committed by the state authority, neither states nor their officers can insulate themselves from another state’s jurisdiction if the case in hand is an international crime because such crimes for the most part represent violations of jus cogens norms and therefore cannot be sovereign acts.

38-47

Authors: Tetiana V. Melnychuk

The scientific interest in studying the functional dependence of crime intensity on socio-economic processes has led to the emergence of contradictory concepts that are based on different hypotheses. The assessment of the merits and disadvantages of developmental theories shows that each research is valid for certain offenses in certain time and conditions due to the nonlinear development of countries. Therefore the context – economic, social and cultural parameters of development and crime – should be taken into account in order to elaborate the explanatory statements of criminalization. Criminometrics seems to become a scientific brunch engaged in the construction of formal criminological models and their quality evaluation. It creates the possibility to construct models using mathematic methods, separating the essential variables from the inessential ones, identifying variables’ dependence (multicollinearity).