Russian Journal of Comparative Law

3-11

Authors: Anna Y. Ananeva

In the article the author describes audiovisual work format, discusses doctrinal points of view on the protection of the result of intellectual activity as an object of intellectual property rights. Then the author analyzes the judicial practice of the Russian Federation and foreign countries dealing with recognition audiovisual work format as object of copyrights. On the basis of the analysis, the author offers rightholders a number of recommendations for protecting their audiovisual work formats, as well as recommendations for characterizing audiovisual work format as a type of copyrighted work (dramatic work, script work, etc.). Finally, in view of the present judicial practice, the author concludes on potentiality for the audiovisual work format to gain legal protection as an independent type of work (object of copyrights).

22-31

Authors: Maria V. Kaurakova

The right to employment commonly considered as a privilege exclusive to individuals to dispose their capacity for work in the form they wish is the essential or fundamental unalienable individual right. In this quality this right is kept in all supreme laws of advanced states starting from the second half of the twentieth century making clear to all that the wage-earning labour is one of the most important phenomena produced by a social life to tie up members of different social groups. Thus it is enshrined in relevant legal forms (laws, codes, regulations etc.). Being a product of legislation and forming logically complete bodies of rules to deal with labour as a particular social phenomenon, these forms evidence of a separate field of law (labour law) in national systems of law. With respect to this it can hardly be necessary to state that in line with other fields of law underlying modern systems of law much has been changed in labour law since the time when this right of employment was first introduced into national law forms in the nineteenth century as a fundamental individual right of those closely connected with a territory of a corresponding community. Now we may say that there is little or sometimes even no connection between domicile and place of employment, when individuals change locations for a better life by crossing borders of different sovereign states. This accordingly affects concepts underlying labour law in national systems of law with a corresponding effect to labour environment. But what remains unchangeable is fundamental principles and rights at work to take appropriate measures in dealing with labour (nature, character and effect of this particular social phenomenon). These are universally accepted material law principles guiding and encouraging employees, employers and sovereign states around this increasingly interconnected world in accordance with a particular pattern. That is the balance of interests of capital and labour. The main idea is to prevent burdensome forms of work organisation in accordance with a general principle of our time advanced in most jurisdictions that the work should be adapted to the worker. For this very reason, in this short article we would like to take an opportunity to address the issue as to whether in the age of sanctity of property and labour, nature and character of employment exert substantial influence on private international law regulation, on devices used by legislators in this particular sphere of regulation. These are directly applicable rules, conflict of law rules, uniform material law rules and international jurisdiction rules, which make up a separate field of law in national systems of law to deal with legal and jurisdictional conflicts of the time and place arising in a private law sphere. Here we would also like to uncover the employment status of an individual in private international law paying particular attention to expression, recognition and protection of labour rights exercised on a cross-border basis and make practicable proposals. This all in order to try to think of tomorrow as well as of today private international law and treat accordingly particular legal issues coming before it.

41-49

Authors: Luan Thanh Nguyena, Ngoc Thi Ha

This paper focuses on analyzing and clarifying the emergence of land use rights in Vietnam as a legal creation for the implementation of land ownership by the entire people. The authors address such issues as the limitations of existing perspectives on the current legal nature of land use rights in Vietnam and on proving land use rights as a kind of rights in rems. At the same time, the article also specifies the components of land use rights as a kind of right in rems.

69-70

Authors: Pavel N. Biriukov

This paper is a review of the monograph by V.V. Kudryashov, published by INFRA-M in 2018 (Kudryashov, 2018). This 249-page monograph contains eight parts, an introduction, a conclusion and six annexes with author's translation of several international financial standards.

63-70

Authors: Dusan Dabovic

The main aim of this article is to determine and analyse the legal framework of international cooperation of the Republic of Serbia in agriculture. In this paper, the formal-legal method, the method of text analysis, and the statistical method have been used. When it comes to the materials and sources, both domestic and international regulations in force have been used, as well as the concluded international agreements and conventions, together with international acts, newspaper articles, relevant scientific papers and databases. The starting point in this research has been that agriculture, as an extremely important economic area for Serbia, and for the most countries in the world, is a significant segment of the international economic cooperation of Serbia. The legal framework governing this cooperation can be classified as the global level, the continental, i.e. the European level, and the regional level. Simultaneously, at all levels, the basic legal acts regulating the international cooperation of the Republic of Serbia in agriculture have been determined, whether they are signed international agreements, both multilateral and bilateral, or international recommendations and standards, i.e. recommended acts for legal harmonization and their implementation in the process of international integration.

78-87

Authors: Stefan Kirchner

Indigenous women are often doubly under pressure when it comes to the full realization of human rights. In particular they might face increased risks to their health and life and suffer from a lack of access to health care. In particular language and cultural differences can make it difficult for indigenous women to access health care services. This research looks at the tip of the iceberg of this problem, taking as a point of departure problems of Sámi women in Norway to access mental health care service. This is the tip of the iceberg as indigenous women in other states suffer much worse forms of discrimination, Norway has an excellent health care system and has ratified ILO 169. Yet, indigenous women in Norway are significantly less likely than non-indigenous women to access mental health care services. In the context of the conference’s overall theme this research project looks at the question whether international instruments applicable to the situation in Norway (such as CEDAW, ICCPR, ICESCR and ILO 169) give indigenous women a right to access to health care. Particular attention is given to the prohibition of discrimination and to the question of horizontal effect, which are necessary for effectively ensuring the right to access to health care.

96-102

Authors: Marko Svicevic

Since the end of the World War II, military intervention and the use of force have taken many modes of recognition in international law. While its justification as a means of self- or collective defence remains the most commonly used, not all academicians have considered this objective as the only justification for interventions. This article analyses the opinions of researchers espousing that some powerful states can assert their dominance in other sovereign states in pursuits of national interests. This is what neorealism is concerned with and what it inevitably seeks to understand and explain. Against the opinions of scholars sharing neoliberal approach, the author analyses the examples military intervention in the 20th and 21st century particularly focusing on US and NATO military intervention. The article attempts to examine the claims for the existence of other possible political justifications for the use of force which are different from self- or collective defence.

3-8

Authors: Natalia Alenkina, Nazira Tursunbaeva

The courts of biys, which has been developing since XIX century, are usually compared with the courts of aksakals established in 1993. Indeed, both courts during the consideration of cases relied on customs and traditions. As well as the judges in the courts of biys, the members of courts of aksakals are elected by people. The major requirements for being the aksakal or biy are respect and authority. Yet, can we consider the courts of aksakals as the contemporary prototype of the courts of biys? While comparing the common features and peculiarities of these institutions in the article the following steps were taken: • Understand the causes of for the demand of public justice institutions in society as an alternative to state justice, • Understand their compatibility with contemporary state and public institutions, • Comprehend their ability withstand the challenges of modernity: absence of trust in courts, corruption, length of the proceeding, isolation of the court from people, absence of respect to the law. This article is based on the theses presented at the ESCAS-CESS international conference, June 29- 2 July 2017, Bishkek, Kyrgyzstan.

14-25

Authors: Pavel Biriukov

This article brings to light the problem of the relationship between international and national law of Spain. The author provides a number of norms which regulate the correlation of different norms in the legal system of Spain. The author analyzes the implementation of Spanish Constitution and the legislation, as well the procedure of the implementation of the rules of EU Law in detail is investigated. The obligations of the Spanish Kingdom in process of the implementation of the EU legislation are investigated in detail. The author examines the decisions of the Constitutional Court and characterizes its role in the process of the implementation of EU norms. The experience of the implementation of international norms in Spain will help to clarify the provision of the monistic concept the relationship between international and national law.

31-37

Authors: Anthony Fortin

The Sámi people form an indigenous community identified by its diversity of dialects and languages, and that is spread in different European countries, mainly the Nordic countries (Norway, Finland and Sweden) and the Kola Peninsula in Russia. Throughout their history, they have fought against the spread of the majority languages of their respective countries in order to preserve their distinctness and their culture. Today, as indigenous people are slowly recovering rights and recognition, different legal systems for the protection of Sámi languages were put in place in the foregoing states. However, while some of these provisions seem wide and strong, the practical reality does not reflect it. We will therefore examine the international undertakings and national implementations of these countries with regards to experts’ observations in order to establish their shortcomings in the protection of Sámi languages.

48-53

Authors: Igor I. Onyshchuk

In the scientific article was investigated theoretical and practical aspects of human rights monitoring. It was found that monitoring of the legal system is a key aspect of analysis in the field of human rights. Legal monitoring participates in the implementation of almost all functions of the legal system: integrative, regulatory, enforcement, communication, legal incentives, provide a uniform legal space of the state, international legal cooperation. Monitoring of the legal system is a key aspect of analysis in the field of human rights. It is impossible to control all the practical aspects, especially in relation to individual cases. Monitoring the investigation of cases requires the application of the methodology is beyond the scope of control over individual cases as isolated cases. It is necessary to identify human rights violations in a particular case and to provide personal protection. In our opinion, the legal system monitoring should also be aimed at identifying patterns and trends in violations of international standards. For example, to assess the conformity of national legislation with international human rights, it is necessary to perform and daily practice in litigation. The right to a fair trial, access to treatment and to justice, the independence of the judiciary and the proper administration of justice are the basis of a fair and effective justice system. Monitoring the justice system can be directed primarily on the criminal justice process, particularly at the initial stage. As a result of the monitoring of human rights, should develop recommendations on ways to effectively address the problems faced by the justice system. For example, with the reform in the field of law and policy to create and develop the institutions, including accountability mechanisms, the provision of remedies, training and capacity building, administrative and logistical support, resource allocation, etc.

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?