Contents of issue # 8/2015

Contemporary Law-Making and the Role of Juridical Science  Pdf 16

T. Y. KHABRIEVA

vice-president and academician of Russian Academy of Sciences, doctor of legal sciences, professor, associate member of the International Academy of Comparative Law, director of the Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: office@izak.ru

Theses from X International School Workshop of Young Law Scholars (June 2015).

DOI: 10.12737/12222

 

Law-making is a traditional area of theoretical and scientific-applied research of the juridical science. That is why initially, since the moment of its foundation in 1925, the Institute of Legislation and Comparative Law under the Government of the Russian Federation has perceived it as its core business profile, participating in the development of codes, other legislative enactments, initially in the sphere of criminal, criminal procedure and correctional legislation, and since 1936 – of all branches of the legislation of the USSR and the Russian Federation. This created the momentum for the formation in the Institute of the domestic law-making theory[1].

The Institute scientists have developed a general theoretical model for improving law-making and legislation, marked out core systematization parameters of regulatory enactments in force. They have investigated historical, economic and social factors for law formation. They have developed doctrines on legal traditions of the contemporary world, legal awareness and law enforcement practice[2].

Contemporary Tasks of Juridical Science in Law-Making. One of the core tasks of juridical science in law-making is to identify common patterns of law development trends, that change the shape and structure of the law, its basic elements and mechanisms of their cooperation.

Subject matters of legal regulation continue to expand. There appear new social phenomena in the areas, which previously were out of the law scope. Environmental law and technical regulation, which are forming the new legal framework at full speed, are the most apparent examples.

Boundaries between branches of legislation and even deep layers of public and private law has become increasingly flexible. Not only the domestic civil legislation proves this phenomenon, but also the classic Civil Code of France, which incorporated in the past decade a great variety of public-law rules. The draft of the contract law reform, published on February 25, 2015, by the Ministry of Justice of France, also maintains such mixture of the elements of law[3].

In recent years in all developed countries there have appeared new legal schemes that complement the existing or form independent systems and institutes of legislation. Such processes are most visible in the sphere of information and modern information technologies, energy supply, use of bio-medical methods. At the same time the functions and the role of classic branches of legislation are changing. Penetration of the constitutional law into the government and public life has deepened, which resulted from not only the increase of the topic areas of constitutional regulation, but also from more intensive constitutionalization of legislation and law-enforcement practice[4].

At the same time one can observe the processes of the international law expansion that inorbs larger and larger segments of national legal frameworks.

Thus a new composition of national legal systems emerges. It is evident, that such phenomena require their subsequent modernization, one of the core areas of which is constant renewal of legislation and law-enforcement practice with the aim of their aligning with the international legal standards. And this process becomes increasingly broad-scale with proliferation of international organizations and their activity.

Modernization of law manifests itself also in shifting the vector of development of law to the sphere of social and humanitarian issues, which allows ensuring the balance between private, social-group and nation-wide interests.[5] It also manifests itself in high dynamics of centralization and decentralization processes of legal regulation, performed not only by federal but also unitary states.[6]

One can notice an increasing tendency to ensure a balanced combination of methods of legal and non-legal pressure, mandatory and optional provisions as one of the areas and at the same time means of modernization of law. Thus, in public law branches, where as a rule there is no equality of parties, they have started to use agreements and contracts which proves the implementation of more flexible regulatory forms based on the principles of self-coordination. In the private law sphere public-law tools are used, including those from the toolbox of anti-trust and anti-corruption legislations.

The combination of private-law and public-law tools does not only affect the dynamics of legal pressure, but also provides a spark to the universal development of public private partnership, appearance of institutes with hybrid legal nature, that includes public and private principles (in particular, legal entities of public law).

The second core task of contemporary juridical science in the law-making area is scientific support for law systematization.

Developing social relations increasingly becomes complex and intricate in nature that is why they do not always fit into the existing forms of law systematization. Some rules are recognized as improper for systematization due their uniqueness or constraints of their effect in space and time. The situation is aggravated by the formation of independent legal entities that are inconsistent.

And nevertheless systematization of legal and regulatory material continues to be widely used almost everywhere. As before preference is given to classic branch codes: enactments regulating a specific area of public relations and explicitly reflecting scientifically grounded distribution of regulatory material in accordance with the subject and method of legal regulation.

Alongside with the above there are also implemented the forms of intersectoral systematization of legal and regulatory material, that regulate specific areas of the federal and social life. For example, France publishes codes on cinematography and animated cartoons, environment, jurisdictions, scientific researches, tourism, urbanism etc.

Systematization of law is enriched by new forms of incorporation and consolidation of legal and regulatory material, that decrease the diversification level of laws and regulations, their narrow subjects, gaps and contradictions in legal regulation.

The world practice rather extensively implements the forms of nonofficial systematization of legal and regulatory material. The classic example is systematized materials collection of rules of law that is updated from time to time by the American Law Institute, on a large range of legal topics - conflicts of law, agreements, property, trusts etc.

It is reasonable to use such a wide armoury of legislation systematization in Russia as well, which requires its constant studying.

The third core task of the juridical science is the development and improvement of the law-making standards’ system. The research confirms that their origins can be revealed in well-known ancient sources, including the famous treatise ‘Artha-Shastra’ (the Art of Management). Composed two and a half thousand years ago, it established such ‘genuine’ requirements for rules and regulations, as ‘consistency, coherence, completeness, cleanness of style, splendor of style and clarity’.[7]

In modern juridical science the law-making standards’ catalogue has broadened considerably. Besides the requirements to rules and regulations, samples of organization and activities of law-making authorities are reviewed, the observance of which creates organizational prerequisites for implementation of the ideal of a democratic declaration of will in a law-bound state. It also includes professional training standards for law-making experts, as well as criteria of law-makers’ selection, about which great philosopher Thomas Aquinas wrote back in XIII century, calling to search for ‘wise persons who can make good laws’.[8] This has become a topic for ample discussions in legal community in XXI century.[9]

In the contemporary world law-making standards are embodied not only in scientific works, but also in legislative enactments, parliamentary rules, official instructions on preparing rules and regulations.

Achievements of the juridical science in the area of law-making are best reflected in laws on rules and regulations, which are in effect in Italy, Japan, Bulgaria, Kazakhstan, Belarus, Uzbekistan, Georgia, Azerbaijan and a number of other countries.

The Institute of Legislation and Comparative Law under the RF Government in an initiative manner developed a draft of such a law back in the 1970s. One of its latest versions has been accepted as the basis for the draft law ‘On Rules and Regulations in the Russian Federation’, prepared by the RF Ministry of Justice and is currently under public debate.[10]

In many states the concept of the law about laws is implemented in other legal forms.

Back in 1837 the House of Representatives of the US Congress made the Manual of parliamentary practice, first published by Th. Jefferson in 1801, a legally enforceable enactment. Since that time the Manual has been updated reflecting the changes and requirements to the legislative procedure and technique.

In Poland in 2002 the Chairman of the Council of Ministers approved ‘The Rules of Legislative Technique’.

In Germany ‘Recommendations on Uniform Execution of Laws and Regulatory Resolutions’ developed by the Federal Ministry of Justice are in effect.

In France the requirements of the legislative technique are enshrined in Prime-Minister’s circular notes ‘On Quality of Law’ of 2011, ‘On Rules for Drafting, Signing and Publishing of Legal Enactments’ in ‘Journal Officiel’, and also in ‘Manual on Law-Making’[11] (as amended on March 4, 2015).

Juridical science also faces other tasks in the law-making area, including those aimed at the increase of its efficiency, harmonization of national and international law regulators, securing efficacy of the applied legal technologies.

On Legacy and New Horizons of Juridical Science. It is necessary to preserve and further develop the juridical science legacy in the law-making area. Until now it has been formed, basically, through the efforts of its representatives and by utilizing technologies and tools of positivistic trend in the juridical science.

But the potential of the juridical normativism (positivism) on law-making activity improvement is to a large extent exhausted. That is why in recent decades technologies developed in the interior of other areas of the science (sociological and realistic, communicative and psychological, economic and historical) have been increasingly penetrating in the law-making area.

O.W. Holmes, Jr., one of the founders of the realistic trend in legal science, claimed that ‘the life of the law has been experience’[12], that the law should be studied mainly in action, revealing not only existing drawbacks of legal regulation, but also needs for its renewal.

To a large extent the same ideas have been upheld by the sociological trend of the juridical science, brilliantly represented in Russia by M.M. Kovalevskiy and M.N. Gernet, one of the founders of the Institute of Legislation and Comparative Law.[13]

These traditions were carried on by the Institute in the 1960-s, in particular, in the research works of I.S. Samoshchenko, V.I. Nikitinskiy, A.B. Vengerov[14], dedicated to the efficiency of legislation. Later on the basis of these research works legal technologies were developed for assessing the current legislation, for forecasting its future development, projecting law-enforcement practice.[15]

Since 1994 in the tideway of combining classic and contemporary scientific approaches the Institute has been publishing constantly updated ‘Development Concepts of the Russian Legislation’. Currently the work is about to be completed on the seventh edition of this fundamental monographic publication, the main aim of which is to forecast general development trends of legislation.

Other, more applied research is necessary aimed at forecasting legal situations and risks, as well as planning of early works on legal solution of problems caused by them.[16] They permit to decrease the number of scratchy draft laws, ineffective and sometimes absurd legal solutions.

The example of such works being the Concept of the Arctic law development, drafted by the Institute in 2014 on the basis of an intensive study of the legal and regulatory framework for the Arctic. The analysis of about 3.000 laws and regulations with the ‘Arctic’ content effective in Russia and in foreign countries, and the practice of their implementation permitted to define such a phenomenon as the Arctic law, having determined the structure of its legal framework, the place and role in the system of other legal entities, to offer scientifically grounded forecast of the international law and national law regulation of the Arctic.[17]

Monitoring of civil law-making initiatives can render substantial assistance in forecasting and planning of law-making activity. In recent years this tool has been widely implemented in many states with the aim to identify public mood, for which Sima Qian, the father of the Chinese historiography, advocated in II B.C.: ‘Give to people what they wish and quickly deliver them from what they reject’.[18]

The attempts to implement such mechanism have been undertaken in Russia, too. On the ‘Russian Public Initiative’ site, established by the Executive Order as of March 4, 2013, No 183, more than 5.000 public initiatives have already been posted. This ‘measuring facility’ for the perception by the society of the current legislation and the identification of objective needs in its renewal for the purposes of legislative improvement requires more careful examination.

Law-making needs are not limited to the federal level and all the more so it is not enough to conduct few and far between legal sociological field researches in the RF constituent entities, since they are an essential tool of timely identification of impulses to legislative changes. Therefore long-term exploratory experience of the Institute of Legislation and Comparative Law under the RF Government can be of theoretical and practical value.[19]

But such possibilities of the majority of scarce scientific-expert centers are rather limited, which decreases the possibilities to forecast the legislation development in general.

In foreign law-making practice they implement the technology of the psychological trend of the legal science, represented in Russia by the works of L.I. Petrazhitsky[20]. In particular, they use methodologies of neuropsychological assessment of draft laws which allow not only identification of the level of perception in the social consciousness of the drafted legal solutions, but also intensification of their impact through specific stylistic methods and means.

Methodologies of this kind are used abroad for the law-making practice improvement. Due to this it is necessary to reverse the available doctrinal bundle of knowledge into scientific use to resolve new tasks of the contemporary law-making.[21]

In the foreign doctrine the communicative trend has taken its stand, which is based on the concept that the law may not be identified with the will of a state only; it includes rules of other regulators, including religious, ethic, ethnic-communal, corporate and others, which go far beyond authoritative powers of a state (J. Habermas, M. van Hoek and others).

Consequently, in the study and improvement of the law-making and law-enforcement activity the primary focus is on cooperation between existing social regulators, which is of special importance for the states with complex ethnic and social composition. Such research was known in Russia at the end of XIX – in the beginning of XX century, but during the Soviet and post-Soviet period it was downplayed. In the new time (in recent decades) individual research works have been undertaken. However they could be useful not only for understanding ethnic-social processes, but also in the development of tools for their harmonization.

The concept of the economic-legal trend of jurisprudence has been used increasingly. For a long time it was associated with Marxist doctrines, but in recent years this trend has acquired a new context, pragmatic to a large extent and without ideologization, as a tool of intellectual, financial, human, organizational and other resourcing of law-making and law-enforcement activity.

In Russia the first steps in this direction were undertaken as part of the research of a constitutional economy, whose ideas have not yet found practical use.[22]

One can also notice the renaissance tendency of the concepts of natural law and historical trends of the juridical science. Many of them possess large potential for improvement of legislation and law-enforcement practice, as they are aimed at consolidation of the legal consciousness and juridical will as core factors of a state and society’s sustainable development. We are talking about the concepts of F.C von Savigny, the founder of the historical school of law, who urged to reflect in the law the nation’s peculiarities, its language, morals and institutions.[23] Two centuries after the same ideas are suggested by Chairman of the Russian Constitutional Court V.D. Zorkin[24], the Lord Chief Justice of Great Britain I. Judge (2008-2013)[25], many other prominent politicians and lawyers of democratic and developed countries.

In theory and practice of other legal cycles, monopoly of any scientific juridical ideas and doctrines is impossible and unwelcome. They can find a use, if they serve the strengthening of the importance of the law and the solution of burning problems of legal development.

Law-making is certainly jurists’ domain, but it will be successful only under the condition of using the most recent knowledge, including that of economy, sociology, history, and political science. Only then it will be possible to create a legal framework, worthy of the very concept of the law. Therein, in fact, lies the mission of the juridical science in law-making.


[1] N.G. Aleksandrov, S.N. Bratus, I.L. Braude, A.B. Vengerov, M.N. Gernet, S.A. Golunskiy, A.I. Denisov, I.F. Kazmin, S.F. Kechekyan, O.E. Leist, A.V. Mickiewicz, A.S. Pigolkin, A.A. Piontkovskiy, I.S. Samoshchenko, A.A. Tille, V.A. Tumanov, Yu.A. Tikhomirov, M.D. Shargorodskiy and others have made their contribution to the law-making theory.

[2] See, for example: Braude I.L. Selection. Legislative Technique Studies. Certain Issues of the Soviet Law System. Moscow, 2010; Pigolkin A.S. Theoretical Problems of Law-Making Activity in the USSR: author's abstract… Doctor of Legal Sciences. Moscow, 1972; General Theory of Law: schoolbook, under the general editorship of Pigolkin A.S. Moscow, 1998; Problems of Law-Making by Constituent Entities of the Russian Federation: scientific and academic guide /  Managing ed. A.S. Pigolkin, Moscow, 1998;  Law-Making in the Russian Federation: research and practice guide and learning aid / ed. by A.S. Pigolkin. Moscow, 2000; Parliamentary Law: the Parliamentary Law of Russia: learning aid / ed. by T.Y. Khabrieva. Moscow, 2003; Abramova A.I. Legislative Process in the Russian Federation: Problems and Perspectives: research and practice guide. Moscow, 2005; Legal Order in the Russian Federation: monograph / Managing ed. T.Y. Khabrieva. Moscow, 2008; Public and Private Interests in the Russian Legislation: collection of research/practice conference materials / Managing editor Yu.A. Tikhomirov. Moscow, 2005; Organization of Law-Drafting Activities in the System of Federal Executive Authorities / ed. by T.Y. Khabrieva. Moscow, 2006; Rakhmanina T.N.  Codification of Legislation: Monograph. Moscow, 2006; Law: Stability and Dynamics (records of the session of the International school-workshop of young law scholars, Moscow, June 1-3, 2006) / Managing ed. T.Y. Khabrieva. Moscow, 2007; Interrelation between the Legislation of the Russian Federation and the Legislation of the Constituent Entities of the Russian Federation: Monograph /  Managing ed. T.Y. Khabrieva. Moscow, 2005; Doctrinal Framework of Legal Technique / Managing ed. N.A. Vlasenko. Moscow, 2010; Ivanyuk O.A., Kalmykova A.V., Kashirkina A.A., etc. Legal Regulation Limits: practical guide / Managing ed. I.V. Plyugina, Ye.V. Cherepanova. Moscow, 2011; Law-Making Legal Engineering / ed. by N.A. Vlasenko. Moscow, 2011; T.Y. Khabrieva, Yu.A. Tikhomirov, N.A. Vlasenko. Draft Federal Law ‘On Laws and Regulations in the Russian Federation’ (initiative draft law); Parliamentary Law: Monograph / ed. by T.Y. Khabrieva. Moscow, 2013; N.A. Vlasenko Problems of Legal Uncertainties: Lecture Course. Moscow, 2015; Same author. Rationality and Certainty in Legal Regulation: monograph. Moscow, 2015.

[3] See: Available at: http://www.justice.gouv.fr.

[4] See: Khabrieva T.Y. Stages and Core Areas of Constitutionalization of the Russian Legislation // Constitutional Justice Journal. 2013. No. 6. Pp. 25-30.

[5] See: Khabrieva T.Y. Core Vectors and Problems of Social Legislation Development // Russian Law Journal. 2014. No. 8. Pp. 5-15.

[6] This is one of the conclusions drawn by the Institute research workers during preparation of the World Report ‘Decentralization and Democracy at Local Level’. Available at: http://www.euroasia-uclg.ru/index.php?option

=com_content&view=article&id=42%3A2011-10-14-07-24-30&catid=12%3A2011-10-14-07-23-27&Itemid=19&lang=ru; See also: Municipal Reform in the Russian Federation: legal and economic research / under the general editorship of T.Y. Khabrieva. Moscow, 2010.

[7] Dharma Shastra of Manu – a monument of Ancient India. Available at: http://bukvi.ru/obshestvo/istoriaprava/

zakony-manu-pamyatnik-drevnejindii.html.

[8] Thomas Aquinas. ‘On the Soul’. St. Petersburg, 2004, pp. 200-201.

[9] See: International Legal Forum. Available at: http://www.spblegalforum.ru; Law-Making Consulting: the limits of the possible. Available at: http://www.izak.ru/news.html?id=821.

[10] See: Available at: http://regulation.gov.ru/project/21982.html.

[11] See: Constitution de la Républiquefrançaise; Bulletins des administrations. Available at: http://www.gouvernement.fr

[12] Holmes’ Doctrine on Law. Available at: http://bibliotekar.ru/istoria-politicheskih-ipravovyh-ucheniy-2/50.htm.

[13] See: Kovalevskiy M.M. Sociology: in 2 vol. St. Petersburg, 1910; Ilyin I.A., Ustinov V.Moscow, Novitskiy I.V., Gernet M.N. Fundamentals of Jurisprudence: General Theory on Law and State and Core Concepts of the Russian State, Civil and Criminal Law: Public Essays. 4th ed. Moscow; Petrograd, 1915.

[14] See: Samoshchenko I.S., Nikitinskiy V.I., Vengerov A.B. On Methodology of Studying Efficiency of Legal Rules // Sovetskoye Gosudarstvo i Pravo, 1971. No. 9. P. 70-78; Nikitinskiy V.I., Samoshchenko I.S. Economic Rationale (Feasibility) of Legal Solutions and Cost Effectiveness of Their Actions // Sovetskoye Gosudarstvo i Pravo, 1976. No. 5. Pp. 20-27; Vengerov A.B. Law and Information Under Conditions of Control Automation: Theoretical Issues. Moscow, 1978.

[15] See: Legislation Efficiency and Contemporary Legal Technologies: records of the session of the International school-workshop of young law scholars (Moscow, May 29-31, 2008) / Managing editor T.Y. Khabrieva, Moscow, 2009; Tikhomirov Yu.A. Legislation Efficiency in Economic Domain: academic and research work. Moscow, 2010.

[16] See: Risk in Public and Private Law: monograph / science editor Yu.A. Tikhomirov, M.A. Lapina. Moscow, 2014; Tikhomirov Yu.A.  Forecasts and Risks in Legal Domain // Russian Law Journal. 2014. No. 3. Pp. 5-16.

[17] In December 2015 the Concept was submitted at the scientific session of the General Meeting of the RAS members, and also at plenary sessions of the Council of Federation and the State Duma of the RF Federal Assembly. See: The Arctic Law: Development Concept / Managing editor T.Y. Khabrieva. Moscow, 2014; Khabrieva T.Y., Kapustin A.Ya.  On the Arctic Law Phenomenon in the Context of Legal Development of Russia   // Bulletin of the Russian Academy of Sciences. 2015. No. 5-6. Pp. 472-477.

[18] Medieval Historical Sources of the East and West. Available at: http://www.vostlit.info/Texts/Dokumenty/China/I/

Syma_Tsjan/Tom_VII/text62.phtml.

[19] See, for example: Problems of Improving the Anticorruption Legislation of the Russian Federation and its Practical Application / ed. by T.Y. Khabrieva. Moscow, 2010.

[20] See: Petrazhitsky L.I.  What is Law? // Law Bulletin. 1899. No. 1. Pp. 1-62; Same author. On Studying Legal Phenomena. //  Law Bulletin. 1904. No. 4. Pp. 68-100.

[21] See: Lazarev V.V. Social-Psychological Aspects of Law Enforcement. Kazan, 1982. 

[22] See: Barenboym P.D., Gadzhiyev G.A., Lafitskiy V.I., Mau V.A. Constitutional Economy: college textbook. Moscow, 2006.

[23] See: Savigny F.C. Law of Obligations. Translated from German. Moscow, 1876.

[24] See: Zorkin V.D. Constitution Lives in Law. Room for Improvement of the Russian Legislation // Constitutional Justice Journal. 2015. No. 3. Pp. 1-5.

[25] See: Arlidge A., Judge I. Magna Carta Uncovered. Hart Publishing Extent, 2014.

 

References

Abramova A.I. Legislative Process in the Russian Federation: Problems and Perspectives: research and practice guide. Moscow, 2005.

Arlidge A., Judge I. Magna Carta Uncovered. Hart Publishing Extent, 2014.

Barenboym P.D., Gadzhiyev G.A., Lafitskiy V.I., Mau V.A. Constitutional Economy: college textbook. Moscow, 2006.

Braude I.L. Selection. Legislative Technique Studies. Certain Issues of the Soviet Law System. Moscow, 2010.

Dharma Shastra of Manu – a monument of Ancient India. Available at: http://bukvi.ru/obshestvo/istoriaprava/zakony-manu-pamyatnik-drevnejindii.html

Doctrinal Framework of Legal Technique / Managing ed. N.A. Vlasenko. Moscow, 2010.

General Theory of Law: schoolbook / under the general editorship of A.S. Pigolkin. Moscow, 1998.

Holmes’ Doctrine on Law. Available at: http://bibliotekar.ru/istoria-politicheskih-ipravovyh-ucheniy-2/50.htm.

Ilyin I.A., Ustinov V.Moscow, Novitskiy I.V., Gernet M.N. Fundamentals of Jurisprudence: General Theory on Law and State and Core Concepts of the Russian State, Civil and Criminal Law: Public Essays. 4th edition, Moscow; Petrograd, 1915.

International Legal Forum. Available at: http://www.spblegalforum.ru

Interrelation between the Legislation of the Russian Federation and the Legislation of the Constituent Entities of the Russian Federation: Monograph / Managing ed. T.Y. Khabrieva. Moscow, 2005.

Ivanyuk O.A., Kalmykova A.V., Kashirkina A.A., etc. Legal Regulation Limits: practical guide / Managing ed. I.V. Plyugina, Ye.V. Cherepanova. Moscow, 2011.

Khabrieva T.Y. Core Vectors and Problems of Social Legislation Development // Russian Law Journal. 2014. No. 8.

Khabrieva T.Y. Stages and Core Areas of Constitutionalization of the Russian Legislation // Constitutional Justice Journal. 2013. No. 6.

Khabrieva T.Y., Kapustin A.Ya. On the Arctic Law Phenomenon in the Context of Legal Development of Russia // Bulletin of the Russian Academy of Sciences. 2015. No. 5-6.

Khabrieva T.Y., Tikhomirov Yu.A., Vlasenko N.A. Draft Federal Law ‘On Laws and Regulations in the Russian Federation’ (initiative draft law).

Kovalevskiy M.M. Sociology: Vol. 1: Sociology and Exact Sciences of Society. Historical Essay on Sociology Development; Vol. 2: Genetic Sociology or Theory on Initial Moments in the Development of a Family, Kin, Property, Political Power and Psychic Activity. St. Petersburg, 1910.

Law: Stability and Dynamics (records of the session of the International school-workshop of young law scholars, Moscow, June 1-3, 2006) / Managing ed. T.Ya. Khabrieva. Moscow, 2007.

Law-Making Consulting: the limits of the possible. Available at: http://www.izak.ru/news.html?id=821.

Law-Making in the Russian Federation: research and practice guide and learning aid / ed. by A.S. Pigolkin. Moscow, 2000.

Law-Making Legal Engineering / ed. by N.A. Vlasenko. Moscow, 2011.

Lazarev V.V. Social-Psychological Aspects of Law Enforcement. Kazan, 1982.

Legal Order in the Russian Federation: monograph / Managing ed. T.Ya. Khabrieva. Moscow, 2008.

Legislation Efficiency and Contemporary Legal Technologies: records of the session of the International school-workshop of young law scholars (Moscow, May 29-31, 2008) / Managing editor T.Y. Khabrieva, Moscow, 2009.

Medieval historical sources of the East and West. Available at: http://www.vostlit.info/Texts/Dokumenty/China/I/Syma_Tsjan/Tom_VII/text62.phtml.

Municipal Reform in the Russian Federation: legal and economic research / under the general editorship of T.Y. Khabrieva. Moscow, 2010.

Nikitinskiy V.I., Samoshchenko I.S. Economic Rationale (Feasibility) of Legal Solutions and Cost Effectiveness of Their Actions // Sovetskoye Gosudarstvo i Pravo, 1976. No. 5.

Organization of Law-Drafting Activities in the System of Federal Executive Authorities / Edited by T.Y. Khabrieva. Moscow, 2006.

Parliamentary Law: Monograph / ed. by T.Y. Khabrieva. Moscow, 2013.

Parliamentary Law: the Parliamentary Law of Russia: learning aid / ed. by T.Y. Khabrieva. Moscow, 2003.

Petrazhitsky L.I. On Studying Legal Phenomena. // Law Bulletin. 1904. No. 4.

Petrazhitsky L.I. What is Law? // Law Bulletin. 1899. No. 1.

Pigolkin A.S. Theoretical Problems of Law-Making Activity in the USSR: author's abstract… Doctor of Legal Sciences. Moscow, 1972.

Problems of Improving the Anticorruption Legislation of the Russian Federation and its Practical Application / ed. by T.Y. Khabrieva. Moscow, 2010.

Problems of Law-Making by Constituent Entities of the Russian Federation: scientific and academic guide / Managing ed. A.S. Pigolkin. Moscow, 1998.

Public and Private Interests in the Russian Legislation: collection of research/practice conference materials / Managing editor Yu.A. Tikhomirov. Moscow, 2005.

Rakhmanina T.N. Codification of Legislation: Monograph. Moscow, 2006.

Risk in Public and Private Law: monograph / science editors Yu.A. Tikhomirov, M.A. Lapina. Moscow, 2014.

Samoshchenko I.S., Nikitinskiy V.I., Vengerov A.B. On Methodology of Studying Efficiency of Legal Rules // Sovetskoye Gosudarstvo i Pravo. 1971. No. 9.

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Thomas Aquinas. ‘On the Soul’. St. Petersburg, 2004.

Tikhomirov Yu.A. Forecasts and Risks in Legal Domain // Russian Law Journal. 2014. No. 3.

Tikhomirov Yu.A. Legislation Efficiency in Economic Domain: academic and research work. Moscow, 2010.

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Vlasenko N.A. Rationality and Certainty in Legal Regulation: monograph. Moscow, 2015.

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Adobe pdf 24  Full text in Russian

Modern Global Legal System: Convergence and Antagonism  Pdf 16

V. E. CHIRKIN

doctor of legal sciences, professor

The Institute of State and Law of the Russian Academy of Sciences

10, Znamenka st., Moscow, 119019, Russia

E-mail: vechirkin@yandex.ru

Along with the concepts of the legal systems of individual states (“country systems”) and of the legal families (“country groups” of individual similar legal systems), the author employed the methods of comparative law such as induction, content analysisto offer a broader socio-legal basis of division and to highlight three global (world) legal systems in the modern world: Muslim, liberal semi-social capitalist and totalitarian-socialist. The concept of a global legal system and a legal family (some of these families, such as the Anglo-Saxon and Roman-German, too, are global in nature), but the latter are dealt with in the framework of global legal systems (rather than separately). Such classifications are scientific concepts based on similarities and differences between the actual legal phenomena. Concepts and classifications based on global legal systems constitute their essence (formation), and identification of family-legal content of civilizational and socio-cultural nature allows a researcher to establish some new families. The author identifies the essential features of each of the three global legal systems, and such features underlie their fundamental differences, thepossibilities and limits of convergence of the global legal systems. Such limits are conditioned by varying social essence pertaining to such global systems as well astheir antagonism which makes convergence processes often superfluous rather than substantive in nature. This article discusses different legal families within various global legal systems. It states that harmonization of similar-typesocial processes is possible while it is impossible between different-type legal families.

Keywords: legal system of a state, legal family, global legal system, formational essence, civilizational socio-cultural content, a new classification of legal systems and families.

DOI: 10.12737/12223

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Legal Regulation of Public Private Partnership in Health Care: the Experience of the Russian Federation Subjects  Pdf 16

N. V. Putilo, N. S. Volkova, F. V. Tsomartova

N. V. Putilo, PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: social2@izak.ru

 

N. S. Volkova, PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: volkova@izak.ru

 

F. V. Tsomartova

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: social3@izak.ru

The article presents the analysis of regional practices relating to legal regulation in the field of public private partnership in health care sector. The Russian Federation recently proclaimed engagement of private business in providing public services including medical as one of the objectives of public policy. The analysis shows a tendency to use a minimum number of forms of public private partnerships in health care sector. The most appropriate forms of public private partnership as understood by regional health authorities are outsourcing, participation of private health care organizations in public health insurance system, concession agreements. The authors conclude that the development of legal regulation of public private partnership in health care requires certain specification of powers of state and local authorities in the field of public private partnership, determination of uniform terms to be used in regulating public private partnership, employment of different forms of public private partnership, clarifying obligations of the partners in implementing public private partnership agreement.

Keywords: public-private partnership, health care, concession, public authorities, private partner, national development program for health care.

DOI: 10.12737/12224

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Conditions Required to Encourage Russia’s Corporate Pension System  Pdf 16

M. K. Belobabchenko

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: alpatova@mail.ru

This article examines the perquisites for the formation of the contemporary corporate pension provision through greater engagement of middle and small-size organizations and enterprises. Currently, corporate pension schemes can only be afforded by large and profitable enterprises and corporations engaged in fuel and energy, also in oil and transport industries of the Russian Federation. However, surveys of the all-Russian center for public opinion studies show that 22% of Russian citizens would like to pay some amount of money for future retirement, in addition to the pensions that will be paid by the state. The author believes that, in spite of the current sanctions against Russia and the deterioration of economic development, the adoption of the Federal law on corporate pension system is necessary. Of course, at the same time, the state should take measures to encourage employers to establish corporate pension programs by providing tax benefits and other preferential terms.

Keywords: corporate retirement systems, corporate pension, pension savings.

DOI: 10.12737/12225

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Corruption Offenses: Problematic Issues of Legal Qualification  Pdf 16

E. I. Spektor

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: e-spektor@yandex.ru

In this paper the author revealed the absence of uniform and clear-cut approach to the definition of the concept “corruption” and characteristic features thereof in contemporary current national and international law and science. Manipulation with such notions as corruption crime, corruption offense, misconduct, offense which creates conditions for corruption, etc. does not only bring clarity to the issues of legal qualification of the deviant act as “corruption”, but allows law enforcers to interpret broadly the true meaning and content of these concepts. The author noted that the above situation is illegal and unacceptable in terms of application the principle of analogy in “penalty law”. Lack of uniform conceptual apparatus makes it impossible to set clear limits of the legal regulation, whereby all efforts of combating the corruption become more “patchy” and not systemic. Also, it violates the principle of consistency with the existing system of legal regulation and the principle of formal certainty of law, presupposing the accuracy and clarity of the legal regulations in its capacity as the necessary guarantee to ensure the rule of law. Realizing an integrated and interdisciplinary concept of «corruption», the author proves the need for legal comprehension of said concept.

Keywords: corruption, misconduct, offence, legal qualification, legislation, deviant act, extensive interpretation, law enforcers, legality.

DOI: 10.12737/12226

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Combatting Crime in China: Legal-Regulatory Aspect  Pdf 16

P. V. Troshchinskiy

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: troshc@mail.ru

This article examines the features of legal regulation pursued by the Chinese government in fighting crime. It contains, as examples, current acts of law-making which have been adopted by the legislator in the field of anti-corruption, combating the illicit distribution of narcotic (psychotropic substances), driving the vehicle while intoxicated. The article gives brief historical retrospective of the main directions in the field of crime prevention and combatting after the formation of the PRC in 1949. It is noted, that after the death of Mao and beginning of the “revolutionary” reform and transparency (1978), the Chinese society was challenged by an increasing crime rate, especially in the economic sphere. Law-maker was confronted with urgent necessity to elaborate the much needed codified acts of law-making in the field of criminal law. The Parliament would pass local Decrees in attempt to fill the gaps in the then existing legislation and which were aimed to toughen the criminal liability for new offenses. After introducing significant changes into the Criminal Code (1997) the legal regulation of the fighting against crime has reached a higher and complex stage. Over time, the Chinese legislature adopted various legal acts, the provisions of which also related to fighting against crime. Examples are: the Law “On Suppression of Money Laundering”, the Law “On Prohibition of Drugs”, etc. The analysis of said issues led to the following conclusions: China’s leadership adheres to a rigid criminal policy in the fight against the crime. This approach, according to the statistics, is justified and has already led to positive results. However, under the pressure of international community China embarked upon the path of liberalization of criminal punishment directly relating the death penalty. Due to the amendments to the Criminal Law of 2011, the number of offenses for which the offender may be sentenced to capital punishment has been reduced from 68 to 55. Legal regulation of the fight against crime in China presents not only interest from a scientific point of view but also as a big practical issue.

Keywords: China, comparative jurisprudence, crime, death penalty, criminal responsibility, corruption.

DOI: 10.12737/12227

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Mediation Agreement: Legal Nature and Role  Pdf 16

V. S. Kamenkov

doctor of legal sciences, professor

Belarusian State University

4, Prospekt Nezavisimosti, Minsk, 220030, Belarus

E-mail: v.kamenkov@gmail.com

The article gives a legal description of a mediation agreement; it discloses its legal nature and its role in reconciling the conflicting parties. It is important to understand a mediation agreement as a complex legal instrument of an interdisciplinary nature. It shows the advantages of mediation as compared with judicial settlement. The author analyses the respective mediation institutions and norms of Russia, Belarus and Kazakhstan. By way of concluding it is stated that mediation agreement, the very nature thereof is much broader than the scope of relationships it is deemed to regulate.

Keywords: mediation, mediation agreement, conflict resolution, protection of rights.

DOI: 10.12737/12228

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The Role of In-House Councels in Alternative Dispute Settlement  Pdf 16

N. I. Gaidaenko Schaer

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: natalia.gaidaenko@sts-law.ru

The role of the in-house counsels in the commercial companies in the development of alternative dispute resolution practices is currently becoming widespread. The author studies the positive experience accumulated by foreign companies. Also, the article examines the trends where the role of in-house counsels is changing to become more than merely supportive, but to the status of a full fledged party in matters of company management through the system of conflict management which is built into the structure of the company’s business development. In view thereof, the author comes to the conclusion that it is desirable to acquaint the in-house counsels with negotiation technologies in dealing with commercial counterparts.

Keywords: alternative dispute resolution, mediation, conflict management, dispute management, early dispute resolution, in-house counsels, compliance.

DOI: 10.12737/12229

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Concept of Legal Support for Financial Stability of the Russian Federation  Pdf 16

N. A. Povetkina

PhD in law, associate professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: pna127@mail.ru

The article is devoted to the development of the concept of financial and legal support of financial stability of the Russian Federation. Special emphasis is made on the need to define common approaches to system-wise financial stability of the Russian Federation. The article emphasizes that the study of the financial and legal tools required to facilitate financial sustainability from the stand point of the system approach allows to clearly reveal the internal structure, the way it functions and to formulate the main vectors for its perfection. Also attended to in this article are the elements of financial and legal tools for the financial sustainability of the Russian Federation. It is recognized that the term “financial stability” is an economic category, also emphasized is special role and importance of law as a regulator of economic relations. The article, inter alia, speaks of the impact of risks on financial stability.

Keywords: financial stability, financial and legal facilitating mechanism, the budget, the budget system, balanced budget, risk, threat, consistency, principles, governing bodies, reserve funds, gold and currency reserves.

DOI: 10.12737/12230

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Threats to International Information Security: the Development of a Conceptual Approaches  Pdf 16

A. Ya. KAPUSTIN

doctor of legal sciences, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: Kapustin@izak.ru

The article examines the main approaches to the formation and development of international legal regulation concerning threats to international information security. It examines the definition of information threats, as formulated in national (Russian) and international acts. Special attention is given to the reasonableness of the use of the term “information war” (Cyber warfare) from the point of view of international law. Also, the article attends to the special features of the concept of “computer network attack” in the international legal context. It analyses the issues relating to qualification of various acts which make the notion of “information threats” to international information security, and stresses for much needed search of new approaches to be applied to the given subject, also calls for departure from the existing methods of mechanical application of the existing norms, principles and institutions of international law to the regulation of information environment.

Keywords: international law, international information security, threats to international information security, information war, the limits of the international legal prohibition on the use of force, computer network attack.

DOI: 10.12737/12231

 

The development of modern international relations takes place in the age of the information-technological revolution, which influences all aspects of the life of the human society. The degree of impact is so strong that specialists note an increasing dependency of the humankind in general on information and communication technologies (ICT)[1]. One can observe deep penetration of ICT not only into technological, economic and social spheres of lives of modern states, extensive use of ICT in the military sphere raises concerns, as well as their application for hostile purposes in the context of modern crisis and conflict situations. As the UN Secretary General noted in 2014 in the report ‘On the Work of the Organization’, ‘Geopolitical tensions have also played out …in cyber disputes’[2].

In their strategies, states take into account similar tendency of the ICT development and extension of scope. First of all, they seek to prevent the ICT usage for undermining national security. For example, for these purposes our country adopted the ‘Doctrine of Information Security of the Russian Federation’[3]. The document notes the increasing role of the information sphere, which is defined as a total of information, information infrastructure, parties who collect, form, disseminate and use information, and also regulating systems for public relations arising at that.  The Doctrine acknowledges that being a backbone factor of public life, the information sphere actively influences the conditions of political, economic, defense and other components of the security of the Russian Federation. Russian national security depends in a substantial way on ensuring information security and in the course of the technological progress, this dependence will grow. 

Alongside with this, states also pay attention to the necessity of developing a concept of international information security, which should be adopted and implemented by the international community of states. To achieve this goal individual states adopt their own strategies, aimed at the creation of favorable conditions for the development of scientific foundation for such document. For example, Russia has drafted Foundations of the Russian Federation’s state policy in the sphere of international information security for the period until 2020[4], which determines main threats in the sphere of international information security, goals and objectives and priority areas of the state policy of the Russian Federation in the sphere of international information security, as well as mechanisms of their implementation.

Despite the fact that within the UN framework the work continues on alignment of positions in relation to such document[5], other international intergovernmental organizations (IIGO) have made first steps in this direction. For example, in 2006 the Shanghai Cooperation Organization (SCO) adopted Declaration of the member states on international information security. The document expresses concern that currently a real danger appears that the ICT will be used for the purposes which are able to seriously undermine security of  people, society and states in violation of fundamental principles of equal rights and mutual respect, non-interference into internal affairs of sovereign states, peaceful settlement of disputes, nonuse of force, observance of the human rights. At the same time threats to use ICT for criminal, terroristic and military-political purposes, incompatible with international security protection can be implemented both in the civil and military spheres and lead to severe political and social economic consequences in individual countries, regions and the world in general, to destabilization of public life of states.

What stands out in the Foundations of the state policy of the Russian Federation in the sphere of international information security for the period until 2020, is that one of the main threats in the sphere of international information security is the use of ICT as an information weapon for military-political purposes, which contradicts the international law, for performing hostile actions and acts of aggression, aimed at discrediting of sovereignty, violation of territorial integrity of states and which are a threat to international peace, security and strategic stability.

From the abovementioned definition of the threat to international information safety one can single out several logical-terminological units, whose international-legal analysis can enable to assess the state of general regulatedness of this threat to international information security. So, the use of ICT as an information weapon with the help of which it is possible to perform hostile actions and acts of aggression is indicated as a threat, i.e. a potential danger. In other words, ICT in this context plays the role of a means of warfare (weapon)[6] and its nature, threatening the international security, results from the illegality of the ICT use, expressed in the reference that the purposes of the ICT use will violate the international law, with clarification of types of international illegal acts (‘hostile actions, and ‘acts of aggression’). Hence, it appears that ICT can serve as legal means of warfare if they pursue legal aims (self-defense, combating acts of aggression etc.)

Before starting the international legal analysis of these terms and concepts it is necessary to clarify that they are widely used in two related but incongruous branches of modern international law: international security law and international humanitarian law, applied under the conditions of armed conflicts. It is necessary to point out that the place and importance of the indicated branches in the international law system is not equal due to different purposes, and in a broader context - different functions of these branches, as well as their different perception in international legal consciousness. Indeed, maintenance of international peace and security is one of the UN core tasks and the basic content of international law. All or practically all other branches of international law contribute to the solution of an important task – to preserve and secure peace and international community from military threats, to prevent unleashing of wars and armed conflicts. On the contrary, international humanitarian law is seen in this context as a kind of misconception and a paradox, since it seeks to regulate relations between combatants during wars and armed conflicts and to make every effort to minimize negative consequences for human persons (regardless of their legal status – a combatant, a prisoner of war, a wounded, sick, civil person etc.) during the use of armed force[7]. Hence the priority importance which is attached to international security law in the legal consciousness of humankind, and in a broader context also in the global public opinion, and unconvincing and even disrespectful attitude towards international humanitarian law among lawyers and in mass media.

In the meantime both branches, albeit in different extents and at different sight angles, use the terms, which we have singled out from the Russian public document, and give them their own legal content.

Taking into consideration that documents and scientific literature note the possibility of using ICT as a weapon, it is evident that it will be used under the conditions of wars or armed conflicts. Nowadays the term ‘information warfare’[8] has been introduced into scientific and publicistic  usage, which makes us widen the range of the analysis and introduce the terms in question into a broader research context.

Modern international security law is based on the UN Charter provisions and international treaties adopted after the World War II, both of universal and regional character. As the base category for building modern international legal framework of universal security, the UN Charter uses the notion of ‘power’, the usage of which, in accordance with cl. 4 of Art. 2 of the abovementioned document, is prohibited in international relations. The UN-formed security system includes a number of essential components, one of which is a possibility of application of ‘efficient collective measures of both preventive (prevention and removal of a threat to peace) and compulsory nature (suppression of acts of aggression and other violations of peace)’. As we can see, the UN Charter does not use the concept of ‘war’[9] as an object of international legal regulation and relevant category, unlike international legal acts in the early XX century.[10]

Thus, in 1907 the III Hague Convention relative to the opening of hostilities was adopted; it instructed that armed hostilities between member states must not commence without previous and explicit warning, in the form either of a reasoned declaration of war or of an ultimatum with conditional declaration of war. The existence of a state of war must be notified to the neutral Powers without delay. The Preamble to the Covenant of the League of Nations, 1919, declares the wish of the negotiating parties to accept certain obligations not to resort to war for securing international peace and security of peoples. Article 11 of this document refers to a ‘war or threat of war’, Articles 12 and 13 – to the obligation of members of the League ‘not resort to war’, and finally, Article 16 mentions a situation when a state ‘resorts to war’ which is deemed to be ‘an act of war’. The security system of the League of Nations included yet another documents containing the term ‘war’ in their title. This is the General Treaty for Renunciation of War as an Instrument of National Policy of 1928, or the Kellogg-Briand Pact (or Pact of Paris), where the states solemnly denounced war as a method of solving international disputes and rejected it in their mutual relations as an instrument of national policy.

Interestingly, neither of the above-mentioned documents provided a clear definition of the concept of war. Probably, in that period it seemed so evident that politicians and diplomats did not bother to do it and tried to enshrine more specific obligations related to war.

This obligation, despite its sublimated nature, probably played its role in the fact that the decision was taken not to use the term ‘war’ in the UN Charter but to replace it by more specific terms, associated with the hostilities outbreak: ‘force and threat of force’ and ‘threat to peace, violation of peace and acts of aggression’[11]. Afterwards  there begins a slow decline of the use of the term ‘war’ in international law, both in the international security law and international humanitarian law[12].

Taking into account this international legal trend, fairness, or rather the proper use in the international legal context of the concept ‘information warfare’ or ‘cyber warfare’ is highly ambiguous, whatever the supporters of this term say in favour of the contrary. For instance, G. Kerschischnig, starting out from a more general concept of war provided in law dictionaries, considers that the term ‘cyber warfare’, which he uses in his paper, is necessary for describing geopolitical hostile conflicts between states, performed in cyberspace. The term also includes conflicts, involving actions of non-state actors, which can be appropriated by the state, and guerrillas equally supported by the state, who conduct warfare on the territories belonging or occupied by the enemy. The scientist assumes that the state of a conflict or crisis is a prerequisite to cyber warfare, but an armed conflict in itself is not cyber warfare[13]. At the same time, he excludes from his functional concept of a cyber warfare such existing concepts of the use of information for hostile purposes, as psychological warfare operations[14]. Though in this case there are fine points, as demonstrated by various examples of ‘cyber attacks’ (real or imaginary` – that’s a different matter), which in any case have a negative psychological effect on people.   

One can agree with such an approach only taking into account the fact that this concept is used exclusively for functional purposes to identify the use of ICT for hostile purposes, exclusively in ‘information environment’ (‘cyberspace’). At the same time, even on the basis of such a short essay on the development of international legal regulation of armed conflicts, presented by us, it is quite obvious that  such ‘information warfare’ (‘cyber warfare’) is in need of own legal understanding and putting into a separate category of conflict relations between states, possibly with the use of slightly different criteria which are used in traditional approaches for the definition of the concepts of war and armed conflict.

From our point of view, the analysis of the concept ‘hostile action’ or ‘act of aggression’ with the use of ICT should be preceded by clarification of the key term, which has a wider meaning – ‘information attack (onslaught)’, or ‘cyber attack’. This term is relatively new for modern international law and has not yet got a universally accepted definition in current international legal documents. However, in international legal literature and official documents there are attempts to define a computer network attack. In particular, the Dictionary of Military and Associated Terms, published by the US Department of Defence, provides the following definition: ‘Computer network attacks are actions taken through the use of computer networks to disrupt, deny, degrade, or destroy information resident in computers and computer networks, or the computers and networks’[15].

The formal characteristic of such type of an attack is that the network itself and information contained in such network is both the weapon and the target of the attack. This characteristic feature marks out attacks on computer networks from various forms of radio electronic warfare, which can also seek to break or destroy the network, but instead they use electromagnetic energy, for instance, generator’s electromagnetic impulses or other disturbances to achieve their goal. But the computer network attack in question uses a computer code to damage the network and can result in various consequences depending of the function of the relevant system.

Information is the object of an information attack (cyber attack), that is why this term is essential for the definition. From the point of view of information science, information is some data, which reduces uncertainty in the system; it contains much more than traditional definition of facts and knowledge necessary for a person in order to change or form an opinion. In the military science, one can find similar definitions of the term ‘information’ – this is ‘facts, data or instructions in any environment or form’[16]. In the Russian juridical science, they discuss the problem of defining information as an object of statutory regulation and in this context they identify information properties that are significant for its characteristics as an object of law[17]. One can agree with the opinion that the concept of ‘information’ as an object of an information attack includes computer operational code, its automated processes and applications, and also files and data contained in them[18].

Thus, the term ‘computer network attack’, or ‘cyber attack’ includes a wide range of hostile means of affecting computer networks, including the computer code. Such malicious software (hostile programs) can lead to serious trouble as in the case of the denial service attacks registered in Estonia in 2007, or a physical destruction of an object, as was the case of using a Stuxnet worm in Iran[19].

By the projections of specialists, various types of information attacks (cyber attacks) are capable of defacing web-sites, servers and backbone nodes, generating spamming and spreading viruses[20].

Computer network attacks capable of resulting in devastating consequences on an international scale, such as worm Stuxnet, are often aimed at management systems, which regulate critical infrastructures[21] of technologically developed communities. These systems control power plants, water-supply systems, gas pipelines, dams, chemical plants and reactors. These management systems controlling the major part of critical infrastructure proved to be very vulnerable in the face of possible information attacks, which compels states to undertake relevant measures to protect critical facilities of information and telecommunication systems.

Considering the concept of a computer network attack as using available technological capabilities by a state or even non-state actors against other states or non-state entities, it is necessary to judge from the established international legal and also technical concepts and categories. Currently the problem of defining information attacks (cyber attacks) on computer networks as a type of the use of force by a state in violation of the current international law is evident, though it has not yet got the relevant statutorization[22].

Of course, in this context the concept ‘force’, which is one of oldest in the world politics and law, is also a key concept for developing a correct approach to resolving a task of international legal classification of an information attack (cyber attack).

It has been truly stated in scientific literature that over many centuries the concept ‘force’ has remained practically unchanged[23]. Usually the strength of any state was perceived as the presence of its military potential, but nowadays these perceptions have transformed and it is fair to assume that the concept ‘force’ includes a number of other components, for which reason it is now said that military force is a component of the state’s strength. State’s strength includes, among other things, economic strength and its types (financial, commercial), scientific and technological might, ideological strength, political force (including foreign), social force and information force[24]. Thus, modern science does not exclude the information and communication component from the concept of a state’s strength, on the contrary, it pays more and more attention to it. Considering this circumstance, it is necessary to analyze international legal rules applicable to the characteristics of the use of force in its informational and communication aspect in international relations.  

In spite of a wide range of attacks, which fall within the definition of a computer network attack, foreign literature identifies four main characteristics of a computer network attack: mediacy, immunity, location (or locus) and the result[25].  Some of the enumerated characteristics do not create serious problems for classification from the point of view of modern international law, while some do enter considerable difficulties in the process of their international legal assessment.

From this point of view, what sparks interest is such a peculiarity of information attack as mediacy, or indirect nature of its implementation.

As already mentioned, p. 4 of Art. 2 of the UN Charter clearly establishes modern international legal ban on the use of force (both in contractual and customary international law), but we should not forget that at the moment of its conclusion information technologies have not reached the state when they could be considered to be any type of a threat, coming from a state or non-state actors.

Though direct attacks on computer networks are possible, of course, for example penetration into a dam control system aimed at water discharge, many of them can influence the control system to achieve the domino effect. Example of such indirect attacks include manipulations with the GPS-satellite systems to launch enemy’s missiles past the mark, manipulation with information data of a hospital, as a result of which when treating enemy’s manpower people are assigned the wrong blood type, or switching off an air traffic control system. All these examples trigger an action that results in a further action which the second participant or an object must undertake to achieve the desired result.

Mediacy of the action per se was not a problem for international law. The International Court of Justice in the case ‘Nicaragua v. the USA’ found that indirect assistant can be considered a use of force in violation of international law. The court justified its reasoning as follows: ‘Intervention is wrongful when it uses… methods of coercion, particularly force, either in the direct form of military action or in the indirect form of support for subversive activities in another State’[26]. Declaration on Principles of International Law concerning Friendly Relations and Cooperation among the States in Accordance with the Charter of the UN, 1970 (Resolution of the General Assembly 2625 (XXV)) sets such type of assistance equal to the use of force by a state that renders the assistance when actions taken in another state are ‘related to the threat of force or its use’.

Nevertheless, in similar cases a further action, which an assaulted state will undertake, should include traditional use of the armed forces. If a further action does not constitute ‘a threat of force or its use’, for example, in case of information data in hospitals, then at the present stage of international law development the like can hardly be viewed as use of force. Besides, not all help rendered to rebels is considered a violation of the ban to use force in international relations. For example, simple arms procurement by the USA for ‘contras’ in Nicaragua in itself was not narrowed down to the use of force. That is why the causal connection between an action of a state and the result of the destructive influence on the state-victim will be of crucial significance.

Another question rises, when a party which at the moment is receiving assistant from another state has no wish or intent to harm anyone, but it can be used as an intermediary in the actions of an attacker. This happens when computers are joined in botnets and are used to conduct DDoS-attacks on a target computer or computer systems. Taking into account that the main issue in such a case is determination of a possibility to hold a state responsible for the use of computers on its territory for such purposes, it is necessary to keep in mind that it can be a state that conducts an attack through the computer system of another state. Though it will be proved that the computers belonging to a certain state were used in the attacks in question, subsequent analysis of these actions can result in the conclusion that these computers could well undergo manipulations on the part of hackers who are usually hold responsible for such acts.

Thus, an indirect nature of an information attack complicates the solution of the problem of determining the true party at fault for the attack, and also increases the risk that countermeasures can ne aimed at states or even persons who are not guilty in those actions. However, it can be viewed as a desired result for the attacking state as indirectness allows for a plausible excuse to deny its involvement. Such lack of transparency complicates the task of determination of applicable international legal rules to a computer network attack and the assessment of its results.

Even a short analysis of problems of international legal classification of various actions which form the concept of ‘information threat’ to international information safety demonstrates the necessity to search for new approaches to study this problem and to overcome existing stereotypes of easiness of transferring the established rules, principles and institutes of international law to regulation of objects of information environment.

 

[1] See ref.: Kerschischnig G. Cyberthreats and International Law. The Hague, 2012. P. 5.

[2] Report of the Secretary General on the Work of the Organization. UN Report A/69/1. UN, New York, 2014. P. 4/90.

[3] Approved by President of the Russian Federation on September 9, 2000, No. Pr-1895.

[4] Approved by President of the Russian Federation on July 24, 2013. No. Pr-1753.

[5] In this respect very indicative are the documents adopted at the Tunis summit meeting on the issues of information society in 2003-2005, which in general reflect a common opinion of the global community on the problems arisen as a result of mastering new information technologies for the purpose of using their potential for progressive development. 

[6] Explanatory dictionaries define the term ‘weapon’ as ‘any means adapted or technically suitable for an attack or defense’. (Ozhegov S. I. Dictionary of the Russian Language. Ed. by N. Yu. Shvedova. Moscow, 1982. P. 405.)

[7] It is no mere chance that in the not-too-distant past it was called ‘law of war, and later – ‘law of armed conflicts’.

[8] See, for example: Krutskikh A.V., Safronova I.L. International Cooperation in the Sphere of Information Security. Infoforum-6, 11.02.2004; Vezirov V. N. Stepanov V. Ye., Krasov N. I., Barmin L. V. and others. Information Confrontation – New Global Danger for Humankind. Issues of Information Protection. 1999. No. 4/P/2-8; Labush N.S. Information Trigger for Armed Conflicts. Conflict Management. 2012. No. 2; Dinnis H. H. Cyber Warfare and the Laws of War. Cambridge, 2012; Libicki M. C. What is Information Warfare? Washington, 1995; Barkham J. Information Warfare and International Law on the Use of Force. New York University Journal of International Law. 2001. No. 34.     

[9] The Preamble of the UN Charter declares the determination of the peoples of the United Nations ‘to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind”. In this context, war is perceived as a world war, i.e. a total war, threatening the safety of all humankind, and not as a juridical phenomenon of an armed stand-off between states.   

[10] In general, the concept of war has been a permanent companion of humankind throughout his history, though, of course, its international legal importance has not remained unchanged.  In accordance with the shrewd reasoning of the British historian of international law S. C. Neff, ‘there is no such thing …as a ‘phenomenon of war’, majestically permanent throughout the history and inside various human cultures’. (Neff S. C. War and the Law of Nations. A General History. Cambridge, 2006. Р. 1). Indeed, war was perceived  as a means of law enforcement, there were theories on just and unjust wars, a war as a means of politics and imposing of sanctions to international law violators, wars for national liberation, imperialistic wars etc.

[11] The UN historians indicated that Art. 33 of the UN Charter unconditionally requires resolution of disputes by one of peaceful means, thus excluding a declaration of war. At the same time, the wording of p. 4 of Art. 2 of the UN Charter, while binding the members of the Organization to ‘refrain in their international relations from the threat or use of force’ thus forbade aggression and aggressive policy. In this context centuries-long ‘law of arms’ was exposed to radical changes, as states were disclaimed the right to declare war, which had already been shattered by the Kellogg-Briand Pact. See: Krylov S. B. History of Creation of the United Nations Organization. Drafting of the Text of the Charter of the United Nations Organization (1944-1945). Ed. by G. I. Tunkin. Moscow, 1960. P. 262.

[12] Of course, there were various reasons for such exclusion. For example, out of four Geneva Conventions of 1949, collectively called Conventions for the protection of war victims, only one contained the term ‘war’ in its title – this was the Geneva Convention Relative to the Protection of Civilian Persons in Time of War. At the same time, in the texts of all four conventions it was said that they shall be applied ‘to all cases of declared war or of any other armed conflict’. In all subsequent acts, for example, Protocols Additional to the Geneva Conventions for the protection of war victims 1949, adopted in 1977, the concept of an ‘armed conflict’ (international or non-international) is used. The reasons for refusing to use the term ‘war’ were ever more pragmatic. They lied in the fact that it was necessary to secure one of the most essential tasks of the international humanitarian law  - application of its rules under any circumstances, and thus prevention of the possibility to abandon their application upon the pretext that there is no declaration of war upon the beginning of a large-scale military confrontation, falling under the criteria of an armed conflict. It is an illustrative example from the historical point of view, as it is very hard to understand at a glance, what prevails here – the inertia of the ‘Hague law’  authority or blind faith in the possibilities of ‘civilized’ forms of war fighting, kind of naïve rules of the ‘equestrian code of honour’. For details see: Kapustin A. Ya., Martynenko Ye. V. International Humanitarian Law. Moscow, 1991. P. 41-42.

[13] See: Kerschischnig G. Op. cit. P. 84.

[14] Ibid. Р. 85.

[15] Dictionary of Military and Associated Terms. US Department of Defense. Available at: http://www.dtic.mil/ doctrine/dod_dictionary/data/c/10082.html.

[16] Dictionary of Military and Associated Terms. US Department of Defense. JP 1-02.

[17] See: Tereshchenko L. K. Legal Framework of Information. Moscow, 2007. P. 6-26.

[18] Dinnis H. H. Op. cit. Р. 5.

[19] In 2010 Stuxnet significantly slowed down the Iran nuclear program, the NPP computer network was also attacked. The virus also damaged infrastructure of a number of industrial enterprises. URL: http://www.bbc.co.uk/russian/international/2012/12/121225_iran_stuxnet_attack.shtml

[20] See: Dinnis H. H. Op. cit. P. 5: Tikk E.,Vihul L. International Cyber Incidents: Legal Considerations. CCDCE. Tallin, 2010. P. 112m. Russian specialist Ye. V. Kasperskiy projects three scenarios of cyber attacks, which can result in devastating consequences. The first one is an attack on industrial systems, energy sector, transport, i.e. an attack on computers which control the whole world, starting with an elevator, traffic lights etc. The second scenario is an attack on a critically important IT-infrastructure. The third one is an attack on telecom: on Internet, mobile systems. See: Interview with Ye. V. Kasperskiy on cyber threats, business and private fortune. Access from legal reference system ‘ConsultantPlus’. 

[21] The concept ‘critical information infrastructure’ is used in the draft Federal Law ‘On safety of Critical Information Infrastructure  of the Russian Federation’, which has been drafted but until now has not been yet presented to the State Duma. 

[22] In the opinion of Professor N. A. Ushakov, the UN Charter and international law forbid the use of force (pressure, coercion) other than by armed forces, not by the provisions of the rule of p. 4 of Art. 2 of the UN Charter, but by other rules. See: Ushakov N. A. Legal Regulation of the Use of Force in International relations. Moscow, 1997. P. 13-14. 

[23] See: Military Force in International Relations: study guide / under the general editorship of V. I. Annenkov, Moscow, 2011. P. 29. 

[24] Ibid. P. 31-38.

[25] See.: Dinnis H. H. Op. cit. P. 65—74.

[26] Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America). Mertis. 1986. ICJ 14. International Court of Justice. Para. 205.

 

References

Barkham J. Information Warfare and International Law on the Use of Force. New York University Journal of  International Law. 2001. No. 34.

Dictionary of Military and Associated Terms. US Department of Defense. Available at: http://www. dtic.mil/doctrine/dod_dictionary/data/c/10082.html.

Dinnis H. H. Cyber Warfare and the Laws of War. Cambridge, 2012.

Interview with Ye. V. Kasperskiy on cyber threats, business and private fortune. Access from legal reference system ‘ConsultantPlus’

Kapustin A. Ya., Martynenko Ye. V. International Humanitarian Law. Moscow, 1991.

Kerschischnig G. Cyberthreats and International Law. The Hague, 2012.

Krutskikh A. V., Safronova I. L. International Cooperation in the Sphere of Information Security. Infoforum-6, 11.02.2004;

Krylov S. B. History of Creation of the United Nations Organization. Drafting of the Text of the Charter of the United Nations Organization (1944-1945). Ed. by G. I. Tunkin. M., 1960.

Labush N. S. Information Trigger for Armed Conflicts. Conflict Management. 2012. No. 2.

Libicki M. C. What is Information Warfare? Washington, 1995.

Military Force in International Relations: study guide. Under the general editorship of V. I. Annenkov. M., 2011.

Neff S. C. War and the Law of Nations. A Generall History. Cambridge, 2006.

Ozhegov S. I. Dictionary of the Russian Language. Ed. by N. Yu. Shvedova. M., 1982

Tereshchenko L. K. Legal Framework of Information. Moscow, 2007.

Tikk E., Vihul L. International Cyber Incidents: Legal Considerations. CCDCE. Tallin, 2010.

Ushakov N. A. Legal Regulation of the Use of Force in International Relations. Moscow, 1997.

Vezirov V. N. Stepanov V. Ye., Krasov N. I., Barmin L. V. and others. Information Confrontation – New Global Danger for Humankind. Issues of information protection. 1999. No. 4.

Adobe pdf 24  Full text in Russian

Information Security of the Bodies of Executive Power at the Present Stage  Pdf 16

L. K. Tereshchenko, O. I. Tiunov

L. K. Tereshchenko, doctor of legal sciences, associate professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: adm1@izak.ru

 

O. I. Tiunov, doctor of legal sciences, professor

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: mp@izak.ru

The national security of the Russian Federation depends essentially on information security. The article is devoted to the issues of information security of executive bodies at the present stage. The notion of information security and the meaning of information security regime with regard to executive bodies are hereby considered by the author along with the analysis of its elements, the ways to ensure information security in the light of changing situation, new challenges and threats. The author concludes that information security of executive bodies includes the provision of their information needs within their competence and frameworks which are necessary to fulfill the tasks assigned to them; Also necessary for security of information and information resources; security of telecommunications and information exchange.

Keywords: security, information security, executive power, information technology, threat, information infrastructure.

DOI: 10.12737/12232

Adobe pdf 24  Full text in Russian

BRICS: Legal Features of Development  Pdf 16

N. M. Bevelikova

PhD in law

The Institute of Legislation and Comparative Law under the Government of the Russian Federation

34, Bolshaya Cheremushkinskaya st., Moscow, 117218, Russia

E-mail: foreign5@izak.ru

This article speaks about BRICS, the association which has demonstrated constructive cooperation on the basis of strategic interests of the five countries- Brazil, Russia, India, China and South Africain the field of international relations and global regulation. The author gives legal assessment to the future development of BRICS, its experience of a gradually emerging integration structure and the relation of economic practices of BRICS in interaction with other control mechanisms. The author touches upon the legal status of BRICS which was established to be conducive to the institutional framework for cooperation with international actors in multidisciplinary format. The article identifies the dominant centripetal tendencies of BRICS with special role of China and the presence of the centrifugal tendencies in its development with due account to the issues raised. Also, the author focuses on the strategic goals of the participating countries and the ways and means they propose to get them implemented, especially, in the long-term perspective.

Keywords: BRICS, New Development Bank, the Global Forum, institutionalization, Chinese yuan.

DOI: 10.12737/12253

Adobe pdf 24  Full text in Russian

The Corpus Delicti of International Crime  Pdf 16

G. A. Rusanov

PhD in law
 

The Russian State University of Justice

69, Novocheremushkinskaya st., Moscow, 117418, Russia

E-mail: georgiyrus@yandex.ru

The author studies the composition of international crime as a legal phenomena. Subject to analysis are separate elements of corpus delicti of international crime and , in particular, actus reus, mens rea and subject of crime. The signs of actus reas are either an act exclusively or a totality of acts, consequences thereof and relationships between them. Mens rea of international crimes, as a rule, is associated with a particularity of a crime. An optional element here may be the objective, aim of a crime. Subject of international crime are physical persons. In national penal laws of certain states juridical persons may be subjects of criminal responsibility. A state may be a subject of international crime, but may not be a subject of responsibility.

Keywords: international crime, corpus delicti, actus reus, mens rea.

DOI: 10.12737/12254

Adobe pdf 24  Full text in Russian

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