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Гутников В. М., Смирнова В. М. О советских товарных знаках // Журнал российского права. 2015. № 1. С. 63-73.

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Капустин А. Я. Угрозы международной информационной безопасности: формирование концептуальных подходов // Журнал российского права. 2015. № 8. С. 89-100.



On Soviet Trade Marks  Pdf 16

O. V. GUTNIKOV, V. M. SMIRNOVA

O. V. Gutnikov, 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: civil@izak.ru

 

V. M. Smirnova

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

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

E-mail: civil@izak.ru

In modern Russia is debated the issue of legal regulation of trademarks, which are well-known in the Soviet time and freely used by many domestic enterprises for homogeneous products such as candy “Belochka”, the “Jubileynoe” cookies, chocolate “Alyonka”, cheese “Yantar”, “Druzhba”, etc. Currently has so-called battle for Soviet trademarks between rights holders, who received the trademark rights in full compliance with the Russian legislation, and the actual users, who do not have time to register them. So in the legal community are mechanisms to address issues related to trademarks: recognition of them entered into general use and lost their distinctiveness, the revocation of their registration as acts of unfair competition; the their nationalization; the introduction of prior use, their mode of collective trademarks or certification, traditional food regulation. Currently in the State Duma of the Russian Federation are considered the bills, aimed at the introduction of the right of prior use in trademarks and issuing a compulsory license. In the article are considered only the arguments against the introduction of the right of prior use and issuance of compulsory licenses in respect of trademarks.

Keywords: intellectual property, trademark, compulsory licensing, TRIPS, prior use.

DOI: 10.12737/7250

 

In modern Russia the issue has been keenly discussed on legal regulation of trade marks, which became widely known in the Soviet times and have been freely used by mane domestic enterprises to mark homogenous products (for example, “Belochka” candies, “Yubileynoe” cookies, chocolate “Alyonka”, melted cheese “Yantar”, “Druzhba”, etc.).

As Professor A. P. Sergeyev notes, ‘the majority of such designations did not enjoy legal protection in those times, as they were not registered as trade marks. Nevertheless, to simplify the terminology, they can be tentatively called Soviet trade marks (Soviet brands)”[1].

Currently the so called battle for Soviet trademarks[2] has become more intense between the rights holders, who have formalized their rights to the trademarks in full compliance with the Russian legislation, and the actual users, who have not had time to register their ownership.

For example, in the legal community they propose the following mechanism for the solution of the issues, related to the abovementioned problems: acknowledgment of trade marks, that have become common use and lost distinctiveness, cancellation of their registration as acts of unfair competition, nationalization of these trade marks; introduction in their respect of the right of prior use[3]; their transfer into the status of collective or certification trade marks, as well as into the so called traditional food registration (widely applied in the European Union countries).

The problem with trade marks has grown worse due to the fact that the RF State Duma received draft laws, aimed at the protection of interests of product manufacturers, who actually use other persons’ trade marks, if they started to use them prior to the date of these trade marks’ registration by the trade mark holders and prior to coming into force of the RF Law dated September 23, 1992, No. 3520-I ‘On Trade marks, Service Marks and Appellations of Origin of Goods’ (hereinafter – the Law on Trade Marks). The abovementioned persons preserve the right to further use of this designation under the conditions of royalty-fee ordinary (nonexclusive) license for the production of homogenous products. In accordance with the first draft law, manufacturers, who produced goods under the Soviet brands prior to their registration as trade marks, receive nonexclusive royalty-free license for them. Another draft law envisages the right of prior use for Soviet trade marks, but in fact, the text of the amendments implies the use of such marks on the conditions of royalty-fee ordinary (nonexclusive) license. This license also allows for the use of the trade marks in relation to homogenous goods (and not the very goods in relation to which the designation was originally used) and does not impose restrictions on the volumes of the manufactured products (i.e. it allows for the production expansion), which is absolutely not typical for the prior use.[4] Thus, it is evident, that it is proposed to introduce compulsory license for the trade mark.

Below we will consider only arguments, aimed against the introduction of the right of prior use and issuance of compulsory licenses in relation to Soviet trade marks.

The proposed changes contradict the legal nature of a trade mark. Trade mark is, primarily, a means of individualization of goods of legal persons and self-employed entrepreneurs (cl. 1, Art. 1477 of the RF CC), which permits to unambiguously associate specific goods and expectations about its consumer attributes and quality exclusively with a specific manufacturer. Consequently, under the conditions of legal protection of trade marks, the law grants the right to their use only to one specific right holder, with whom this trade mark is associated.

Under the conditions of legal protection of trade marks, the situation is inadmissible, when one and the same ‘means of individualization’ individualizes an indefinite bunch of various manufacturers, whose ‘legitimization’ is carried out only on the grounds of using the relevant designation prior to the priority date of the trade mark which was registered later.

Correspondingly, the introduction of the right to prior use renders the legal protection of trade marks meaningless, since it grants the right to use them to an indefinite scope of persons.

The proposed changes violate the exclusive rights of trade mark holders. The person, in whose name a trade mark is registered, enjoys the exclusive right to its use.

The exclusive right is of an absolute nature and excludes the possibility to use the trade mark by other persons without the right holder’s consent.

In accordance with the mandatory provision of cl. 3, Art. 1484 of the RF CC, no one is entitled to use, without the right holder’s consent, designations, similar to his trade mark, in relation to products, for whose individualization this trade mark was registered, or homogenous products, if as a result of such use a possibility of confusion can arise.

The rule on the right of prior use in relation to trade marks, contained in the draft laws, is, in essence, a restriction of the rights holders’ exclusive right through granting to actual users, without the rights holders’ consent, of a royalty-fee ordinary (nonexclusive) license for manufacturing homogenous products, which contradicts para. 3 of cl. 1 and para. 1 of cl. 5 of Art. 1229 of the RF CC. The draft law also indicates the possibility of initiating a legal action with the request for license issuance. This request means that the defendant commits certain actions in the interests of the plaintiff (executional legal action); from the point of view of procedural classification, it means that the relevant rules of the draft law should also be qualified as regulations on compulsory licenses.

At the same time, the issuance of compulsory licenses infringes upon the interests of the rights holders, who bear expenses on legal protection of the trade mark, on advertizing relevant products and have legitimate interest as minimum in receiving remuneration for the use of their trade marks by other persons and reimbursement of some part of their expenses and in prevention of confusion between their products and other manufacturers’ products.

It is necessary to point out that compulsory license and the right of prior use are institutes, used in the sphere of patent law. Both of them are aimed at certain restriction of the domain of the exclusive right of patent holders and exist only in relation to those objects of intellectual property that are not means of individualization (invention, a utility model, industrial design) (Art. 1361 of the RF CC), which does not contradict their legal nature. The right of prior use is applied to prevent abusive practice, which can arise as a result of exercising of the exclusive right, conferred by the patent, for example, in case of a non-use of an invention.

Art. 5 of the Paris Convention for the Protection of Industrial Property, Art. 27, 30 and 31 of the Agreement on Trade Related Aspects of Intellectual Property Rights dated April 15, 1994 (hereinafter – the TRIPS Agreement) serve the basis for introduction of the rules on compulsory licensing. But these acts envisage restrictions of the exclusive rights, granted by a patent, under the condition, that such exclusions do not unreasonably contradict the normal use of the patent and do not unreasonably infringe upon the legitimate interests of the patent holders, taking into account the legitimate interests of third persons. Such admissible restrictions of the exclusive right represent a certain monopoly in the interests of the society. For example, in accordance with cl. 2 of Art. 5a of the Paris Convention, each country – participant to the Convention shall have the right to take legislative measures providing for the grant of compulsory licenses (and what is more, only non-exclusive licenses), to prevent the abuses which might result from the exercise of the exclusive rights conferred by the patent, for example, failure to work or insufficient working.

These restrictions of the exclusive rights are not applied to trade marks on the international level. The essence of the objects of the patent rights lies in the fact that they facilitate scientific-technological progress, development and research of innovations in the most important areas (pharmaceuticals, medicine, health care, defense and security, etc.), the most versatile improvement of industrial activity and hi-tech development. During the creation and subsequent development of these objects of industrial property subsequent licenses are granted for the improvement of the object of the patent rights, which is not related to the consumers’ deception, individualization of this object. Thus, if a situation arises, when an invention which cannot be used without another invention, and which is an important engineering achievement, possessing material advantages compared to the invention or the utility model of another patent holder, it gives to the holder of the later invention the right (under certain conditions) to obtain the compulsory license in accordance with Art. 1362 of the RF CC. Among legitimate excuses for non-working (insufficient working) of a patented object there can be only arguments of a legally valid nature (including legal, technical-economic), confirmed by competent bodies. Therein lies the essence of objects of patent rights.

The legal nature of trade marks is absolutely different. They are aimed at products’ individualization, protection of the trade marks’ reputation (goodwill); they protect consumers’ interests from deception on the part of mala fide manufacturers of pirate goods in relation to the products’ peculiarities, which can induce consumers to acquire them; protect products of specific manufacturers from copy-cats and forgery.

The proposed changes violate the rights of the consumers of products, manufactured under proper designations. Trade marks, as is known, perform several functions, among which one can name individualizing (associates specific products with specific manufacturers, distinguishing them from a number of similar products), guarantee (guarantees to consumers certain quality and goodwill of products in the market), advertizing (distinguishes specifically these products in the market as possessing a certain number of positive attributes, advertized by the manufacturer), informational (associates trade marks with specific products that differ from similar products in the market), and restrictive function (prohibits other persons to use the trade marks without permission).

All these functions of trade marks are of significance not only for the rights holders, but also for consumers of relevant products, who can judge by the trade mark about the products’ manufacturer, their consumer appeal and safety for life and health.

One of the most important consumers’ rights is the right to credible information about the manufacturers and products, sold by them.

In accordance with cl. 1, Art. 10 of the RF Law dated February 7, 1992, No. 2300-I ‘On the Protection of Consumer Rights’, the manufacturer (executor, seller) must provide to consumers in a timely manner the required and credible information about the products (works, services), that ensure the possibility of their correct choice.

This right is materially violated, when several manufacturers of similar products use one and the same trade mark for homogenous products, while applying different production technologies for these products. It results in the fact that in the market they trade absolutely similar products under one and the same trade marks, but of absolutely different quality, manufactured in accordance with different recipes, etc. Such situation misleads consumers in relation to the manufacturer of the bought products, their qualitative characteristics. As a result, the presence in the market of homogenous products from various manufacturers under one and the same trade mark deprives consumers of the possibility to correctly choose products.

In essence, the rule on prior use, allowing the use of one and the same trade mark by different independent manufacturers in relation to homogenous products, materially violates the consumer right to information, guaranteed by the Law on the Protection of Consumer Rights.

Besides, royalty-fee nonexclusive (compulsory) license does not envisage the possibility of its revocation by the rights holder in case of violation of the licensee’s obligations in relation to the product quality.

This results in the actual loss of control over the quality of products manufactured under the trade mark and in denial of the consumer rights, which is inconsistent with Part II, Art. 55 of the RF Constitution.

The proposed changes are inconsistent with the requirements of certainty of legal rules. The proposed draft laws read that the right to designation is preserved ‘under the condition that such use has been carried out in accordance with the legislation in force (for the time being)’ or ‘such right has been obtained on the grounds, established by the statute’. But it remains unclear, which legislation is meant. In the USSR various enactments on trade marks[5] were formally in force, which were not actually applied, and this fact resulted in the situation, when one and the same designations were used by different manufacturers. The USSR Law dated July 3, 1991 No. 2293-I ‘On Trade Marks and Service Marks’ was never effectuated. The meaning is also dark in relation to the reference to the Law, establishing grounds, on the basis of which the right of prior use was previously granted. If it means the previous version[6] of Part II, Art. 13 of the Federal law dated December, 18, 2006 No. 231-FZ ‘On the Entry into Force of Part IV of the Civil Code of the Russian Federation’, then it is no longer in force and currently there are no ‘granted’ rights on the basis of this rule. Draft laws are specifically aimed at the introduction of the ‘new’ right of prior use, but to make this ‘new’ right conditional on the availability of the previously granted and nowadays no longer existing rights is legally wrong.

Thus, the draft laws, restricting the rights of the rights holders of the registered trade marks leave many questions and are, in essence, ambiguous, and do not comply with the requirement of certainty of legal rules.

The RF Constitutional Court has repeatedly emphasized the inadmissibility of introduction into the legislation of ambiguous legal rules. For example, cl. 5 of the Decree of the RF CC dated November, 27, 2008, No. 11-II, reads: ‘The universal principle of legal equality (equal protection of the law), enshrined in Article 19 of the Constitution of the Russian Federation, and the general legal principle of formal certainty of law, logically conditioned by it, presuppose that the statute must be clear, precise and unambiguous. Other would mean the possibility of varying interpretation and understanding of the statute, and, in essence, its arbitrary application, which would render delusive the equal right to fair justice and efficient and overall judicial protection, stemming from Article 19 of the Constitution of the Russian Federation in conjunction with its Article 46.

As the Constitutional Court of the Russian Federation has repeatedly emphasized in its decisions, the equal protection of the law and equality before the courts, as well as equality of the rights, guaranteed by the Constitution of the Russian Federation, can only be ensured under the condition of the uniform understanding and interpretation of the rules by all law enforcement officials; on the contrary, violation of the principle of formal certainty of rules allows for unrestrained discretion in the law enforcement process and inevitably leads to abuse of power, and consequently, to the violation of the principle of equality in the exercise of rights and freedoms, supremacy of the Constitution of the Russian Federation and statute (Decrees dated April, 25, 1995, No. 3-II, dated July 15, 1999, No 11-II and dated July 30, 2001, No. 13-II)’.

The proposed changes contradict civil circulation stability. As expert opinions of the Russian Federation Presidential Council for Codification and Improvement of the Civil Legislation note, by the moment of the adoption of Part IV of the RF CC (2006), a number of precedents have already been formed in relation to ‘Soviet’ trade marks. By this time, the majority of such trade marks had been registered for specific rights holders, who were undertaking measures, established by the statute, to stop the use of designations, identical or similar up to confusion with their trade marks, in those cases, when it was done without their consent[7].

Thus, over the last 22 years persons, who registered their rights to the trade marks in full compliance with the current Russian legislation, have exercised their exclusive right, concluding license agreements on the use of the trade marks, belonging to them and also have been undertaking measures on their protection. In many cases, as a result of judicial proceedings, the use by other manufacturers of designations, identical to the registered trade marks or similar to them up to confusion, was terminated (often many years ago) or license agreements on their use were concluded on legal grounds[8].

The rules, proposed by the draft laws, allow for the possibility of applying new rules in relation to persons, who stopped the use of the relevant designations on the basis of the court rulings or on any other grounds in the period from 1992 to 2014. In essence, it means the possibility of review of all previous judicial decisions in relation to such cases, as well as concluded license agreements.

Thus, the introduction of the right of free use of the ‘Soviet’ trade marks by every one who used them, would mean the actual revocation of the registered property rights of today’s rights holders, destabilization of civil circulation in this area of social relations. It would be the same, if the state today initiated a large scale review and cancellation of the results of privatization that took place in the 1990-ies.

All this will have a negative impact on civil circulation stability.

The proposed changes contradict the international obligations of Russia, adopted as part of multilateral negotiations on membership in the World Trade Organization (WTO). On December, 16, 2011, the Russian Federation signed the Protocol of Accession to Marrakesh Agreement Establishing the WTO. This Protocol forms an integral part of the Marrakesh Agreement and all annexes thereto (cl. 2 of the Protocol).

The Working Party Report on the accession of the Russian Federation to the WTO agreement[9] (hereinafter – the Working Party Report) discloses in detail the procedure of application of the Protocol annexes. The obligations of the Russian Federation in relation to the national legislation compliance with the international obligations of the Russian Federation are indicated in §1202 of the Working Party Report: ‘The representative of the Russian Federation also explained to Members of the Working Party that that adoption of Part IV of the Civil Code of the Russian Federation permitted the Russian Federation to finalize codification of its civil legislation with the objectives of achieving full conformity of domestic legislation with the international obligations of the Russian Federation; amending the intellectual property laws of the Russian Federation, to keep the most effective provisions of currently applied laws, while strengthening protection where appropriate.’

Thus, in the process of accession to WTO, the Russian Federation has stipulated the certain scope of application of the provisions of the TRIPS Agreement, the Paris Convention, which have priority in application over all previous and subsequent Federal Laws, as well as over all by-law statutory and regulatory enactments.

The proposed changes contradict the TRIPS Agreement and the Paris Convention. As it follows from the draft law, the mandatory nature of the provision about the right to use trade marks under the conditions of royalty-fee ordinary (nonexclusive) license without indication of the possibility for the rights holders of such trade marks to refuse to grant such license, is, in essence, a compulsory license. But in accordance with Article 21 of the TRIPS Agreement, the fulfillment of whose conditions is mandatory for all WTO members, compulsory licenses are prohibited in relation to trade marks.

It is also necessary to note the contradiction between the right of prior use and Art. 16 of the TRIPS Agreement, which establishes that the owner of the registered trade mark has the exclusive right not to allow third persons to use in the course of trade without his consent identical or similar designations for the goods or services, which are identical or similar to those, in relation to which the trade mark is registered, when such use could result in the possibility of confusion. In case of using identical designations for identical products or services, it is considered, that there is a possibility of confusion.

The Paris Convention specifies the concept ‘confusion of trade marks’ in Art. 10.bis. For example, the Russian Federation, as a member to the Convention, is entitled to assure effective protection against unfair competition (cl. 1 of Art. 10.bis), and also to assure to nationals of the other countries of the Union appropriate legal remedies effectively to repress all the acts of unfair competition (cl. 1, Art. 10.ter.); any act of competition contrary to honest practices in industrial or commercial matters constitutes an act of unfair competition.

Trade marks are protected by the national legislation, which in a number of cases does not ensure the completeness of legal protection; that is why it is necessary to employ additional legal measures. And the prohibition on carrying out actions, resulting in confusion of trade marks, plays the role of such additional measure.

In particular, in accordance with cl. 2, 3 of Art. 10.bis of the Convention, the following shall be prohibited: all acts of such a nature as to create confusion by any means whatever with the establishment, the goods, or the industrial or commercial activities, of a competitor; false allegations in the course of trade of such a nature as to discredit the establishment, the goods, or the industrial or commercial activities, of a competitor; indications or allegations the use of which in the course of trade is liable to mislead the public as to the nature, the manufacturing process, the characteristics, the suitability for their purpose, or the quantity, of the goods.

In this regard, the RF Constitutional Court in its decision of September 24, 2013, No 1342-O indicated, that the provisions of Art. 1484 of the RF CC, establishing prohibition on the use, without the rights holder’s consent, of designations, similar to his trade mark, in relation to the products, for individualization of which the trade mark was registered, or homogenous products, if as a result of such use the possibility can arise for the confusion, are aimed at realization of Part I of Art. 44 of the RF Constitution in conjunction with its Part IV of Art. 15, Part III of Art. 17, Part II of Art. 34 and Part III of Art. 55, as well as at implementation of the obligations of the Russian Federation under the international agreements (the Paris Convention, the Madrid Agreement Concerning the International Registration of Marks, etc.).

Thus, the draft laws contradict Art. 10.bis of the Paris Convention, in accordance with which the countries of the Union for the protection of industrial property[10] (including the Russian Federation) are bound to assure to nationals of the member countries effective protection against unfair competition, and not to establish in the national legislation the rule on prior use and on issuance of royalty-fee ordinary (nonexclusive) license without the consent from the rights holder (in accordance with the compulsory license model).

The proposed changes contradict also Art. 10.ter of the Paris Convention, which reads, that the countries of the Union (including the Russian Federation) undertake to assure to nationals of the other countries of the Union (nationals here mean both physical and legal persons) appropriate legal remedies effectively to repress all acts, enumerated in Art. 10.bis of the Paris Convention. Besides, they undertake, further, to provide measures to permit federations and associations representing interested industrialists, producers, or merchants, provided that the existence of such federations and associations is not contrary to the laws of their countries, to take action in the courts or before the administrative authorities, with a view to the repression of the acts referred to in Article 10.bis, in so far as the law of the country in which protection is claimed allows such action by federations and associations of that country

During preliminary negotiations between the Russian Federation and WTO member states, the Working Party Report on the accession of Russia to WTO was drafted on November, 17, 2011. In accordance with cl. 2 of the Protocol on the accession of Russia to WTO, Russia confirmed the necessity of fulfillment of obligations, enumerated in §1450 of the Report, in accordance with which the Working Party took note of the explanations and statements of the Russian Federation concerning its foreign trade regime and also took note of the commitments by the Russian Federation in relation to certain specific matters, some of which directly relate to the intellectual property rights (§§ 1201-1353 of the Report)[11].

Thus, in the process of accession to WTO, in general, Russia has harmonized its legislation in the intellectual property rights area with the rules of the TRIPS Agreement and the Paris Convention. Adoption of the draft laws, containing the rules on the right of prior use for trade marks and on the issuance without the rights owners’ consent of royalty-fee ordinary (nonexclusive) licenses on limitations of the exclusive right without remuneration payments to the rights holders, contradicts the international agreements, which introduce the ban on the acts, that can result in confusion and deceit in relation to the nature, method of manufacturing, attributes of products, their manufacturer; and also the ban on commercial activity leading to discrediting of establishments or their goods.

As was already noted, the patent legislations of the majority of the states worldwide contain the institute of compulsory license.

By the way, the TRIPS Agreement, actually enshrining in Art. 31 the compulsory license regime, does not use this notion. The absence of this terminology is also explained in Article 5 A of the Paris Convention, which envisages the non use of the institute of compulsory license by the national legislator. In particular, the USA used the possibilities of the discretionary rule of the Convention, having refused from legislative recognition of compulsory licensing. That is why, Art. 31 if the TRIPS Agreement formulates such use, as the use ‘without the authorization of the right holder’ and only in the antitrust legislation. The majority of foreign states do not use in their legislation the concept ‘compulsory license’, replacing it by the concept ‘restriction of the exclusive right’ as part of unfair competition, which can be classified as the abuse of the right[12].

The origins of reasons for inclusion into the Paris Convention of the rules of Art. 5 A can be traced in the French patent law. In order to prevent the possibility of using technologies in foreign states with the simultaneous non use of them domestically, which can adversely affect the level of technological potential of the state, the abovementioned rules on compulsory license were adopted. The rules were included into the Paris Convention during the Hague Diplomatic Conference in 1925. Later, during the London Conference of 1934 and Lisbon Diplomatic Conference of 1958 these rules were reviewed in favor of expanding the legal power of the patent holders. For example, the rule was introduced on the nonexclusive nature of the compulsory license, which confirms the legal nature of the objects of the patent rights in relation to which compulsory licenses could be issued.

The USA applies the approach, in accordance with which neither complete nonuse, nor refusal in voluntary licensing justify restrictions in the execution of the exclusive rights, based on the patent[13].

The majority of foreign states possess statistics for issuing compulsory licenses, probably with the exception of Canada and Great Britain. Up to 1977 in Great Britain and Canada there were cases of issuing compulsory licenses for the production of a number of pharmaceuticals and food stuffs.[14] In the 70-80-ies of the past century for a short period of time the interest in compulsory licenses quickened. They were considered as a legal measure for resolving disputes in the sphere of technological exchange between Western and developing countries. Well-known Western experts voiced their negative attitude towards such tendencies of technological exchange regulation for developing countries[15].

We assume, that issuance of compulsory licenses was to a large extent related to the development of international technological exchange and acknowledgement of the economic phenomenon of parallel imports. Lately the tendency has emerged to abandon the issuance of compulsory licenses in the patent law of foreign countries, with the exception of issuance of compulsory licenses for pharmaceuticals and healthcare products[16].

 

[1] Sergeyev A. P. Battle for Soviet Trade Marks Continues. Is there a Way Out? The Law. 2013. No. 6. P. 95.

[2] Ibid. Pp. 93-105; also see: Trusova Ye. A., Oreshin Ye. I. Battle for Soviet Trade Marks. Introduction of the Right of Prior Use – Is it a Way Out? The Law. 2014. No. 10. Pp. 68-75.

[3] For more details see: Sergeyev A. P. Op. cit. P. 97.

[4] ‘Fortune Favours the Brave’. The Council for Codification did not approve compulsory licensing of ‘Soviet brands’. Available at: http://zakon.ru/Discussions/kto_smel_tot_i_sel_sovet_po_kodifikacii_ne_odobril_ prinuditelnoe_licenzirovanie_sovetskix_ brendov/11998.

[5] See ref.: the Decree of the Council of Ministers of the USSR dated May, 15, 1962, No. 442 ‘On Trade Marks’, Regulation on Trade Marks (approved by the State Committee of the Council of Ministers of the USSR on Inventions and Discoveries dated January 8, 1974).

[6] Void under Federal Law dated July 24, 2007, No. 202-FZ.

[7] See Expert opinion about the draft Federal Law No. 444256-6 ‘On Introduction of Changes to Article 1484 of Part IV of the Civil Code of the Russian Federation’ (approved during the meeting of the Russian Federation Presidential Council for Codification and Improvement of the Civil Legislation on May, 26, 2014, No. 130-2/2014).

[8] See Expert opinion on the draft Federal Law No. 330577-6 ‘On Introduction of Changes to Article 13 of the Federal Law ‘On the Entry into Force of Part IV of the Civil Code of the Russian Federation’ (approved during the meeting of the Russian Federation Presidential Council for Codification and Improvement of the Civil Legislation on May, 26, 2014, No. 130-3/2014).

[9] Available at: http://www.ргаvo.gov.ru. July, 23, 2012.

[10] I.e. countries, to which the Paris Convention is applied.

[11] In the processes of formulation of such approach, the negative experience was taken into account of issuing compulsory licenses for trade marks by German Patent and Trademark Office soon after the World Was II, which resulted in consumers’ confusion in relation to the quality of products and services of the initial trade marks’ owners. Evidently, such rules seem to be viable in the context of flexible state regulation of compulsory licensing, which should be issued primarily for the patent rights as means of innovative development of economy and must not confuse consumers (which would happen in case of introduction of compulsory licenses for trade marks).

[12] See for example: Ohly A. Richterrecht und Generalklausel im Recht des unlauteren Wettbewerbs. Carl Heymanns Verlag, 1997. S. 17—125; available at http://www.wipo.int/wipolex/en/details.jsp?id=1679; Reckitt & Colman v. Borden. 1990. RPC 341; Baums T. Rechtsnorm und richterliche Entscheidung im Wettbewerbsrecht. Der Beitrag Rudolf Callmanns zur deutschen und amerikanischen Rechtsentwicklung. GRUR Int. 1992. S. 1; Heinemann A. Das Kartellrecht des gei stigen Eigentums im TRIPS der Welthandelsorganisation. GRUR Int. 1995. Heft 7. S. 538; Code de la propriete intellectuelle; Szoenyi C. Das franzoesische Werbe- und Verbraucherrecht. GRUR Int. 1996. Heft 2. S. 83—94; Heath Ch. Der Verbraucherschutz im japanischen Kartell-, Wettbewerbs- und Warenzeichenrecht. GRUR Int. 1993. Heft 11. S. 842.

[13] See: Hartfort-Empire v. United States. 323 U. S. 386 (1945).

[14] See: Pirogova V. Compulsory Licensing: What is in Store for Courts? Business and Law. 2010. No. 1. Pp. 44-48.

[15] See: Beier. EIPR. 1986. P. 363—365; Kunz-Hallstein. GRUR Int. 1981.

[16] Available at: http://www.cptech.org/ip/health/ cl/recent-examples.html.

 

References

Baums T. Rechtsnorm und richterliche Entscheidung im Wettbewerbsrecht. Der Beitrag Rudolf Callmanns zur deutschen und amerikanischen Rechtsentwicklung. GRUR Int. 1992.

Beier. EIPR. 1986.

Heath Ch. Der Verbraucherschutz im japanischen Kartell-, Wettbewerbs- und Warenzeichenrecht. GRUR Int. 1993. Heft 11.

Heinemann A. Das Kartellrecht des geistigen Eigentums im TRIPS der Welthandelsorganisation. GRUR Int. 1995. Heft 7.

Kunz-Hallstein. GRUR Int. 1981.

Ohly A. Richterrecht und Generalklausel im Recht des unlauteren Wettbewerbs. Carl Heymanns Verlag, 1997.

Pirogova V. Compulsory Licensing: What is in Store for Courts? Business and Law. 2010. No. 1.

Sergeyev A. P. Battle for Soviet Trade Marks Continues. Is there a Way Out? The Law. 2013. No. 6.

Szoenyi C. Das franzoesische Werbe- und Verbraucherrecht. GRUR Int. 1996. Heft 2.

Trusova Ye. A., Oreshin Ye. I. Battle for Soviet Trade Marks. Introduction of the Right of Prior Use – Is it a Way Out? The Law. 2014. No. 10.

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Criminal Responsibility of Legal Entities for Corruption-Related Crimes  Pdf 16

V. P. KASHEPOV

doctor of jurisprudence, professor

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

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

E-mail: crim@izak.ru

The article examines certain peculiarities of economic crime as a specific manifestation of organized crime, the contents and manifestations of corporate crimes, and determines the grounds for and means of criminal prosecution of legal entities. The article analyses characteristic features of the objective and subjective aspects of the elements of crimes of corporate subjects, sources of the international legislation on legal combating the crimes by legal entities. The article looks into the problems of the doctrine on criminal responsibility of legal entities and conditions for formation of the mechanism of criminal and legal combating such area of crime in the sphere of economic activity, as corruption acts by legal entities, and justifies the need for the division of responsibilities between functionaries - natural persons and legal entities. The article investigates peculiarities of legal proceedings for legal entities’ prosecution, provision of procedural guarantees for the rights and legitimate interests of legal entities when applying measures of procedural compulsion, reasonability of the determined criminal-legal enforcement actions.

Keywords: economic crime, corporate offense, legal entities, responsibility of legal entities.

DOI: 10.12737/7880

 

The increased dynamism of the formation and sophistication of new public relations and scientific-technical relations gives rise to socially dangerous phenomena, constituting threat to modern public and political system of the Russian Federation. Among those there is corruption as a type of lucrative crime that adversely affects the economy, political stability, undermines the authority of the state power, democratic institutes, and ethical values, and inflicts damage to sustainable social development and legal order.

At the same time, the issue on the nature and level of social danger of individual manifestations of economic crime and efficiency of methods for coping with it has become one of the discussion issues of the topic on the fight against economic crime. In this context, interest has quickened in the problem of validation in the criminal and criminal procedural law of the institute of criminal responsibility of legal entities, measure and level of social danger of corporate crime, the necessity to improve legal mechanisms in combating crime manifestations. In particular, in literature, understanding of the essence of the institute of a legal entity, interrelation between administrative and criminal responsibility of corporate subjects of economic crime stirs up disputes.

Taking the above said into the account, the discussion in press and in the Internet of the draft Federal Law ‘On amendments of certain legislative acts of the Russian Federation due to introduction of the institute of criminal responsibility for legal entities’ (hereinafter – ‘the draft law), submitted to the State Duma attracts attention.

The scientific literature understands corruption crime as a category of law violations, embracing a series of criminal offence related to providing by natural persons and legal entities, criminal groups and communities of additional remuneration, various services, securities to public officers, officials, representatives of legislative and judicial authorities, involved in the use of the above mentioned possibilities, and also their criminal retaliatory measures to accommodate customers – natural persons and legal entities, criminal groups and communities. The dynamics of the crime, its status, and structure are to the full extent predetermined by qualitative and quantitative measures of lucrative crime, which is more and more characterized by sophisticated methods and forms of criminal activity. Criminal orientation of commercial activity continues to amplify. Consequently, this type of crime acquires a nature that is more and more dangerous, sophisticated by the way of its commission and good organization. Corporate crime, as a type of organized crime, with participation of economic entities is gaining ground. According to some reports, among the most wide-spread types of corporate crime in Russia there remain illegal asset allocation, bribery and corruption, cyber terrorism and tampering with accounting records. The group on financial investigations established the below results following a survey among small and medium business enterprises in Russia: 37% of the polled companies suffered from economic crimes, and moreover, at least 10 times each[1].

The crimes in questions belong to the category of acts committed in the sphere of entrepreneurship. The incidence of these offences, their criminal formalization allows mentioning some of their characteristic features:

  • they are committed directly in the process of entrepreneurial activity (what is more, their organizational forms are realized by legal entities established and functioning legally and by proper means, i.e. criminal activity is effectuated under the cover of legal entrepreneurship);
  • the majority of crimes are committed by corporate subjects of entrepreneurial activity (legal entities), which should be brought to criminal responsibility alongside with natural persons;
  • in the process of entrepreneurial activity criminal methods are used for appropriation and distribution of economic benefits, which are constantly changing and improving;
  • motivation of these crimes is of a lucrative nature;
  • these crimes are not violent and in the majority of cases the number of victims is not determined;
  • during the commission of such crimes they identify specific and multiple objects of the offense;
  • natural persons, other legal entities and the state can be victims of such crimes;
  • crimes in this sphere are mainly latent, it is very difficult to exposure them, their uncovering requires the use of special investigative techniques potential.

Criminologists note the process of relative substitution in the sphere of lucrative crime of a primitive criminal by an intelligent, artful criminal who uses viable, sophisticated methods and forms of criminal activity[2].

In this context, the proposal to qualify among the subjects of corruption crimes, alongside with natural persons also legal entities, who unlawfully provide material and other values to persons empowered to fulfill state functions or to other persons similar to the above mentioned seems justified.

Let us note that after joining the global legal community, Russia must take into account international standards and recommendations related to criminal law methods of fighting against corruption crimes, including those committed by legal entities. A number of international legal documents, ratified by the Russian Federation, specially stipulate such legislative measures which can be required to ensure bringing legal entities to criminal responsibility for commission of criminal offences, involving active bribery, using the official position for lucrative purposes and money laundering, classified as such and committed in the interests of any natural person, acting in his private capacity or as part of a legal entity’s body with the leading position in this legal entity. Such criminal acts are committed through the execution of representative capacity on behalf of a legal entity or in realization of the right to take decisions on behalf of the legal entity or exercise of supervisory powers, and also through participation of such natural person in the above mentioned crimes as an accomplice or instigator. 

The responsibility of a legal entity does not exclude the possibility of criminal prosecution of natural persons who committed, incited to or participated in criminal corruption offences. Introduction of criminal responsibility of legal entities is considered to be an important form of combating the above mentioned types of crime[3].

In 2006 Russia ratified the Convention of the Council of Europe ‘About Criminal Liability for Corruption’. This document envisages criminal responsibility of legal entities, i.e. any entities with this status by virtue of the current national law, with the exception of the state or other state agencies acting in the exercise of public powers, and also international organizations[4].

At the same time international legal documents repeatedly indicate the necessity of observing national legal traditions in application of own criminal legislation, so that a legal entity which was found guilty in lucrative corruption crimes, was subject to efficient, coherent sanctions with deterrent effect, which includes criminal or administrative fines, and, probably, other sanctions, in particular: measures involving forfeiture to use privileges or assistance from public power; measures, imposing a temporary or permanent ban on carrying our commercial activity, placement under judicial supervision or dissolution by the court.

Some international documents specify corruption acts, which can be imputed to legal entities. For example, Art. 26 of the UN Convention Against Corruption of 2003 establishes that each State Party shall adopt such measures as may be necessary, to establish the liability of legal persons for participation in such corruption offences as bribery of national public officials, bribery of foreign public officials, bribery of public international organizations, embezzlement, misappropriation or other diversion of property by a public official; abuse of functions, illicit enrichment; bribery in the private sector; laundering of proceeds of crime; obstruction of justice.

Responsibility of legal entities can be criminal, civil or administrative. Assignment of such responsibility should not cause damage to criminal responsibility of natural persons, who committed the corruption crime.  The Convention recognizes knowledge, intent and purpose as mandatory elements of an offence. At the same time the guilt may be inferred from objective factual circumstances.

Federal Law of December 25, 2008 No 273-FZ ‘On Combating Corruption’ has become one of the core statutory documents, directly related to the improvement of anti-crime measures concerning legal entities in the Russian Federation. In accordance with this law, corruption shall be understood to mean abuse of functions, giving bribe, acceptance of a bribe, abuse of power, corrupt business practices or other illegal use by a natural person of his position contrary to the legally protected interests of the community and state for the purpose of receiving benefits in the form of money, values, other property or property-related services for himself or third parties or illegal allocation of such benefits to the indicated person or other natural persons, and also commission of the abovementioned acts on behalf or in the interests of a legal entity. 

In accordance with the Law in question, if preparation and commission of a corruption offence is carried out on behalf or in the interests of a legal entity, it is possible to apply sanctions to this legal entity in accordance with the Russian legislation.

Application of penalties to a legal entity for corruption offenses does not discharge a guilty natural person from liability for this offense, just like criminal or other prosecution of a natural person for a corruption crime does not discharge a legal entity from liability for this offense.

The stated statutory enactments only generally characterize legal regulation of legal entities’ liability for commission of corruption crimes.

Administrative legislation envisages the possibility of imposition of administrative sanctions (in case of establishing specific conditions) for entrepreneurs and their organizations for commission of economic offences. The use of administrative and legal instruments in this sphere expands and increases. But the realia of the crime situation in the sphere of economic activity require enhancement of efficiency in legal combating offense in economic sphere, application of criminal legal remedies to influence economic crime.

For a variety of reasons administrative influence only is not enough to compensate for the lack of criminal responsibility.

Taking into account the increased social danger of this type of organized crime in such corruption manifestations as corporate crime, it seems justified to put forwards the concept of formation of a special criminal law countering actions against the analyzed criminal acts.

Experience of global development of criminal law regulation indicates topicality of improving criminal legislation towards acquisition by national legislation of the theory on criminal responsibility of legal entities and establishment of a special criminal procedural and criminal-penal mechanism of its implementation. 

The necessity of a more profound regulation of legal entities’ responsibility presupposes setting up of the system of rules that form a complex of legal provisions establishing grounds for criminal responsibility of legal entities, determining attributes of organizations involved, types and forms of criminal law pressure for the purposes of crime prevention and suppression. 

The creation of such system will allow elimination of certain shortcomings of the current legislation on responsibility for legal entities’ crimes, committed in the interests of natural persons or other legal entities. At the same time one should not exclude the use of other legal instruments (civil-law, administrative-law) or possibilities of various organizations. Currently, criminal law pressure for such types of criminal acts is aimed only at individual natural persons, which evidently does not comply with the principle of fair criminal sanction. At the same time an organization can reimburse only tangible damage without establishing unfavorable consequences for the organization itself.

The danger of applying criminal responsibility for corruption crimes will motivate organizations to adopt more efficient control means over the activities of the organization’s managerial bodies, ensuring security of its activity, i.e. it should increase the preventive role of the criminal statute in the sphere of crime prevention.

Establishment of criminal responsibility of legal entities will allow bringing the Russian criminal law more in line with international standards. Creation in the national legislation of a legal mechanism for bringing legal entities to criminal responsibility will allow formation of legal conditions for exterritorial criminal prosecution of international organizations and foreign legal entities located outside Russia for the crimes, trenching upon the interests protected by the criminal legislation of the Russian Federation.

The absence of such legal instruments makes it impossible to repatriate illicit capital made on the territory of Russia and exported abroad, since in the context of the principle of separate criminal legal personality of legal entities, in order to reclaim this property and transfer it back to the complainant or confiscate it, it is necessary to obtain the court decision establishing the guilt of this organization (and not a natural person) in the transnational crime. It is necessary to note that legislations of the majority of countries with developed legal framework envisage the procedure of exterritorial criminal prosecution.

As previously noted, currently the Russian legislation envisages administrative responsibility of legal entities for specific acts (omission of acts), the commission of which is criminally liable for natural persons. This type of responsibility was expected to replace criminal responsibility. But the situation has come about when for the same act, committed by a natural person on behalf or in the interests of a legal entity, the cases are initiated and investigated in accordance with two types of judicial procedure: criminal and administrative.  Such procedure results in inefficient use of state funds. Different types of judicial procedure do not contribute to proper ensuring of observance of the rights of the trial participants. It seems that such legal status is inacceptable, when the statute determines one and the same act both as a crime and an administrative offense depending on the subject who committed it. The very possibility of such choice creates conditions for corrupt solution of the problem of responsibility.

It is necessary to take into account that as a rule social danger of an act is differentiated by the object’s features (social relations, infringed by the crime) and the objective aspect (acts) of the person(s) committing the offense. Participation in the crime event of a legal entity, whose will is aimed at the achieving of a criminal result, considerably increases social danger of the act since a collective subject has much larger financial, organizational and other capacity for planning, committing and suppression of a crime than an individual natural person or even a group of natural persons.

It is also necessary to take into account that compared to criminal proceedings, the possibilities of proving the guilt using administrative procedure tools are rather limited in cases on corruption offenses, as under administrative proceedings no operational investigations can be used.

The RF Constitutional Court, determining constitutional legal significance of operational investigations, indicated that this type of law enforcement activity, as related to restriction of the most fundamental rights and freedoms, can be applied only in detection and uncovering of crime. In the Court’s opinion, the use of operational investigations under administrative proceedings is inacceptable, since proof in cases on administrative offenses is about much less dangerous forms of unlawful conduct and the use of these tools will contradict Part 3 of Art. 55 of the RF Constitution, establishing the extent of limitation of constitutional civil rights and freedoms by the state[5].

It is also known, that administrative procedure compared to the criminal one, is carried out in accordance with a simplified procedure, due to the reduction of the guarantees of the right to defense. But as for the criterion of severity of sanctions applied to legal entities, they correspond to criminal penalties (in particular, the amounts of fines).

Thus, the solution of the problem of bringing to criminal responsibility of legal entities through the improvement of the legislation on administrative responsibility is not possible due to its specific nature (in particular, characteristic features of judicial procedure).

That is why, in our opinion, it is necessary to agree with the authors of the above mentioned draft law, that the solution of the problem of legal entities’ responsibility for implication in crimes of a corrupt nature, is possible through the transfer of socially dangerous acts committed by legal entities which are currently envisaged in the RF Administrative Offences Code, to the category of economic crimes. Establishment of the above mentioned institute will permit to efficiently counteract the use in criminal activity of fake organizations, other corporate entities without legitimate status. Implementation of economic activities through the use of such types of organizations contributes to economy criminalization, considerably increases entrepreneurial risks and decreases investment potential of the country’s economy.

Despite the fact, that these legal entities are used from the very beginning of their functioning for the purposes of crime committing or suppressing, they enjoy equal legal protection alongside with organizations with the proper legal status.   

Currently the Russian criminal legislation does not envisage the possibility of applying to such legal entities of any criminal law pressure measures for their implication in economic crimes.

Creation of a legal mechanism aimed at combating the above mentioned phenomena is the goal of legal developments in criminal and criminal procedural legislation, which deserves support. At the same time, the establishment of the institute of criminal responsibility and its comprehensive regulation with the subsequent inclusion as a separate section into the RF Criminal Code require a large-scale and diversified analysis, which is impossible in a magazine article. That is why we suggest dwelling only on some controversial problems and ideas of perception of the institute of legal entities’ responsibility and its implementation in the criminal legislation, which provoke opponents’ objections.     

For example, for the purposes of unification of principles of criminal responsibility for natural persons and legal entities, the draft law envisages that the provisions of the RF CC General Part, determining criminal law consequences of crime commission for natural persons, should be applied to legal entities, with the exception of cases when a special legal regulation of a legal entity’s responsibility does not envisage otherwise or when due to the subject matter of legal relations with participation of a legal person, general legal regulation is not applicable. 

Peculiarities of criminal responsibility and punishment of legal entities, accessory to corruption crimes, the order of their bringing to criminal responsibility should be reflected in the below stipulations in the RF CC General Part.

The provisions of the RF CC General Part, determining criminal law consequences of crime commission for natural persons, should be applied to legal entities, if the RF CC does not envisage otherwise. At the same time constituent elements for a criminally liable legal entity are identified for crimes committed within the territory of the Russian Federation. A legal entity established on the territory of the Russian Federation can be brought to criminal responsibility in accordance with the RF legislation. Punishable acts for a legal entity are indicated in the RF CC Special Part. But in our opinion, this list, proposed in the draft law, is unreasonably extended.

Foreign legal entities, international organizations or separate subdivisions are criminally liable for crimes committed outside the Russian Federation in accordance with the RF CC, if the crime is aimed against the interests of Russia, a Russia citizen, a legal entity established on the Russian territory.

Determination of a legal entity’s guilt differs from the principle of a natural person’s guilt, as established in Art. 5 of the RF CC. In accordance with the draft law, a legal persons is found guilty and is criminally liable in cases of culpable commission of acts (willfully or negligently), punishable for a legal entity in accordance with the Special Part of the RF CC; acts, performed on behalf of a legal entity by a person, empowered to perform such acts under the law or other legal enactment; commission of an act, punishable for a legal entity, definitely in the interests of the legal entity by a person holding a position in its governing or control bodies. At the same time the crime is considered to be committed in the interests of a legal entity, if one of the motives was acquisition as a result of this crime by a legal entity of benefits of a material or a non-monetary nature, including receiving of profit (increase in profits) or avoidance (reduction) of the amount of costs, losses.

The criteria of categorization of crimes punishable for legal entities establish the amount of fins.

Participation of a legal entity together with another legal entity in commission of a crime as an actual perpetrator, head for or accessory to a crime is considered to be a criminal complicity of a legal entity. Also, a legal entity is considered to be an actual perpetrator, if it commits a crime by using another legal entity which is not criminally liable due to its fabulousness or other circumstances, eliminating criminal liability in respect to natural persons. 

A legal entity, if it gives instruction to another legal entity to commit actions (inactions), punishable for a legal entity in accordance with the Special Part of the RF CC, is considered to be a head for a crime as well as a legal entity exercising legal or actual leadership over the actions (inactions) of the legal entity that committed a crime as an actual perpetrator.

The draft law proposes a rather large range of types of punishments, which courts can impose on legal entities, found guilty in commission of economic crimes, taking into account the nature and social danger of their acts, the gravity of the occurred socially dangerous consequences, on the basis of the assessment of sufficiency of measures, undertaken by the organization to prevent the crime, minimization of its negative consequences, and also information characterizing this organization (previous criminal record, socially beneficial activities, etc.)  

The following types of punishment can be imposed on legal entities found guilty in the crime: warning, fine, revocation of license, quota, preferences and privileges, revocation of the right to engage in certain types of activities, ban on activities on the territory of the Russian Federation, forced liquidation.

Warning, fine, ban on activities on the territory of the Russian Federation and forced liquidation should be imposed as main types of punishment, while revocation of license, privilege and also the right to engage in certain types of activities – as additional types of punishment.

Warning as a sanction for commission of an economic crime can be imposed on a legal entity that committed misdemeanor for the first time, and which did not entail damage to property. It should officially represent a public reprimand to the legal entity and its warning on inadmissibility of committing such criminal offences in future.

Revocation of license, quota, preferences and privileges should include extinguishment of the license, quota, and preferences, assigned previously to this legal entity, and can be imposed in relation to those licenses and quotas, which were used in commission of the crime.

Forced liquidation is an exceptional measure of punishment, which can be imposed on a legal entity, established on the RF territory, and also a foreign legal entity, an international organization who committed a grave or especially grave crime outside the Russian Federation against the interests of Russia.

The draft law envisages criminal law measures in relation to a dummy legal entity, indicating its attributes. A legal entity is dummy, if it is used by another legal entity or a natural person for the purposes of crime commission or suppression and does not possess organizational independence, as well as other mandatory attributes of a legal entity, envisaged by the RF civil legislation.

For the purposes of securing the principle of justice in apportionment of the burdens of criminal law pressure in relation to persons and organization, the draft law envisages the possibility of liberation from criminal responsibility of a natural person, who committed a minor or medium gravity offense for the first time solely in the interests of the organization and who either did not receive or was not receiving property benefits directly or indirectly. In this case only a legal entity should be brought to criminal responsibility. At the same time, the conviction of the organization in commission of a crime on the basis of the court verdict will imply a record of conviction for it for a certain period of time. The organization’s criminal record will be of importance for central and local public authorities in conducting privatization or placement of orders for the delivery of goods, performance of work, service rendering for the state or municipal needs.

In our opinion, the presented summary of the main characteristic features of the draft law on establishing the institute of criminal responsibility for legal entities and the order or bringing them to criminal responsibility allows judging on the amplitude of the law making and law enforcement tasks arising in case of the possible adoption of this draft law.

For example, the most serious obstacle for the adoption by the legislator of the concept of criminal responsibility for a legal entity is the solution of the problem of the subjective aspect of this collegial composition. The draft law forms the definition of the concept of a legal entity’s guilt on the basis of core provisions of the concepts of guilt adopted in foreign legislations of countries, which accept the possibility and admissibility of criminal responsibility for corporate subjects.

This is the perception of an anthropomorphic approach, when the guilt of a legal entity is determined by the guilt of a natural person, acting on its behalf. Such model of a legal entity’s guilt is currently realized in the Russian legislation on taxies and levies. In accordance with cl. 4 of Art. 110 of the RF TC, an organization’s guilt in commission of a tax crime is determined depending on the guilt of its functionaries or its representatives, whose actions (inactions) conditioned the commission of this tax offence. The draft law recognizes also elements of objectivistic trend in assessing a legal entity’s guilt, in particular, the theory of guilt of preceding behavior, which presupposes the admission of the organization’s guilt that it failed to ensure the proper level of corporate control over the activity of its management bodies and failed to do its best in undertaking the measures on observance of bans, the violation of which entails criminal responsibility.

In particular, as was already mentioned, the draft law proposes to find a legal entity guilty in a crime and criminally liable in cases of culpable commission of acts (willfully or negligently), punishable for a legal entity in accordance with the Special Part of the RF CC; acts, performed on behalf of the legal entity by a person, empowered to perform such actions (inactions) under the law, other legal enactment, agreement or power of attorney. At the same time the following fact is taken into account: the fact of commission of an act, punishable for a legal entity, definitely in the interests of the legal entity by a person holding a position in its governing or control bodies, and also intentional commission of an act, punishable for a legal entity, by other persons on the instruction, with the knowledge or approval of persons acted definitely in the interests of the legal entity.

The draft law also envisages certain specific features of the criminal procedural form of bringing a legal entity to criminal responsibility, which guarantee to the suspected or accused legal entity a certain volume of criminal procedural rights and guarantees, de facto corresponding to the rights and guarantees of a suspected or accused person or an affected person.

For example, a representative who can be selected by the legal entity itself or appointed by an investigator should exercise rights and obligations on behalf of the legal entity in the criminal proceedings. The representative’s participation in the criminal proceedings is mandatory. This stipulation is intended to avoid abusive practice on the part of law enforcement authorities and ensure steadfast observance of rights and legitimate interests of the legal entity.

The draft law refers proceedings on the cases on legal entities’ crimes to the competence of investigators from the RF Investigation Committee; they should be carried out in the form of a preliminary investigation.

Taking into account the difference between a legal entity and a natural person (name of the subject, ascertainment of a legal entity’s guilt in the crime) the draft law envisages certain particularities in preparation of the decision on the legal entity’s indictment as a defendant, a letter of accusation and a verdict. It is expected to introduce a new source of evidence: the legal entity’s plea against suspicion, accusation or a civil suit.

By analogy with the rights of natural persons, the draft law acknowledges the right of an unreasonably prosecuted legal entity to rehabilitation, including the possibility of compensation of property damage, business reputation damage, and also restoration of other rights, violated as a result of groundless prosecution.

In order to conduct criminal prosecution of the accused organizations, the possibility is envisaged for extraterritorial criminal prosecution of foreign legal entities and separate subdivisions of Russian organizations, registered under foreign jurisdiction. These provisions allow confiscation of criminally-obtained property on the balance sheet of the legal entity registered in a foreign state.

The draft law also envisages the possibility to single out a criminal case in a separate proceeding in relation to a legal entity when the natural person liable as a defendant who directly committed the crime of behalf of the legal entity or in the interests of this legal entity, is not identified, absconded during the investigation or trial. Sever of the criminal case in relation to a legal entity is only allowed under the condition that it will not affect the comprehensiveness and neutrality of the preliminary investigation and settlement of the criminal case. This mechanism will allow levying execution upon the criminally-obtained property.

It is also planned to introduce the mechanism for counteracting delayed deadlines of criminal proceedings through failure of the legal entity’s representative to appear before the investigator without valid excuse.

The draft law takes into account peculiarities of proving the circumstances related to a legal entity’s characteristics and those mentioned in Art. 73 of the RF CPC. Proving of these circumstances should be carried out with the below exceptions:

  • the following is established instead of the form of guilt and motives for committing criminal acts: a) circumstances  confirming that the crime was committed by a legal entity or in the interests of the legal entity; b) nature and amount of benefits envisaged by the RF CC, received by the legal entity as a result of the commission of the crime; c) measures undertaken by the legal entity to observe the bans, the violation of which entails criminal responsibility for the legal entity; d) measures undertaken by the legal entity to suppress the crime and neutralize its socially dangerous consequences;
  • instead of circumstances characterizing the personality of the accused, they establish information, characterizing the accused legal entity (previous criminal record, significance of the legal entity’s activity for the region, carrying out socially beneficial activities, etc.)

Thus, a brief overview of some opinions on the essence of the institute of criminal responsibility for legal entities and proposals on its legislative consolidation in the criminal and criminal procedural legislation allows hoping for the legislator’s favorable opinion towards the presented concept. Here it is instructive to recall the opinion of famous lawyer B.V. Volzhenkin, published back at the end of the last century: ‘There are grounds for believing that in the near future the issue on establishing criminal responsibility for legal entities will be once again put point-blank. It is unlikely that the Russian legislator will stay on the sidelines and fail to react to the noticeable trend on extension of corporations’ responsibility in foreign legislation’[6].

Modern authors have continually supported this position, and the examined draft federal law proves it[7].

 

[1] See ref.: Sukharenko A. Corporate Crime in Russia. Ezh-Yurist = Economics and Life - Lawyer, 2012, no. 27.

[2] See ref.: Luneyev V.V. Crime in XX century. Global, Regional and Russian Trends. Moscow, 2005, pp. 464, 470.

[3] See: Volzhenkin B.V. Criminal Responsibility of Legal Entities. St. Petersburg, 1998; Yegorova N. On Criminal Responsibility of Legal Entities for Corruption crimes. Human Resources Management. 2003; Nikiforov A.S. Legal Entity as a Subject of Crime and Criminal Responsibility. Moscow, 2003, pp. 86-90; Dodonov V. Responsibility of Legal Entities in Modern Criminal Law. Legal Order, 2006, no. 4; Biryukov P.N. On Criminal Responsibility of Legal Entities in International Law and RF Legislation. Topical Issues of the Russian Law, 2014, no. 5.

[4] See: Federal Law dated July 25, 2006. No. 125-FZ.

[5] See definitions of the RF  CC dated April 22, 2005, No. 198-O and dated July 14, 1998, No. 86-O.

[6] Volzhenkin B.V. Op. сit. P. 23.

[7] See ref.: Antonova Ye.Yu. Criminal Responsibility of Legal Entities for Corporate Crimes. Business Security, 2009, no. 2; Fedorov A.V. Introduction of Criminal Responsibility of Legal Entities as Anticipated Trend in the Development of the Russian Criminal Policy in the Era of Financial Economic Changes. Criminal Law in the Era of  Financial Economic Changes: Proceedings of IX Russian Criminal Law Congress  (May 29-30, 2014). Moscow, 2014, pp. 97-103.

 

References

Antonova Ye.Yu. Criminal Responsibility of Legal Entities for Corporate Crimes. Business Security, 2009, no. 2.

Biryukov P.N. On Criminal Responsibility of Legal Entities in International Law and RF Legislation. Topical Issues of the Russian Law, 2014, no. 5.

Volzhenkin B.V. Criminal Responsibility of Legal Entities. St. Petersburg, 1998.

Dodonov V. Responsibility of Legal Entities in Modern Criminal Law. Legal Order, 2006, no. 4.

Yegorova N. On Criminal Responsibility of Legal Entities for Corruption crimes. Human Resources Management. 2003.

Luneyev V.V. Crime in XX century. Global, Regional and Russian Trends. Moscow, 2005, pp. 464, 470.

Nikiforov A.S. Legal Entity as a Subject of Crime and Criminal Responsibility. Moscow, 2003, pp. 86-90.

Sukharenko A. Corporate Crime in Russia. Ezh-Yurist = Economics and Life - Lawyer, 2012, no. 27.

Fedorov A.V. Introduction of Criminal Responsibility of Legal Entities as Anticipated Trend in the Development of the Russian Criminal Policy in the Era of Financial Economic Changes. Criminal Law in the Era of  Financial Economic Changes: Proceedings of IX Russian Criminal Law Congress  (May 29-30, 2014). Moscow, 2014, pp. 97-103.

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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.

Savigny F.C. Law of Obligations. Translated from German. Moscow, 1876.

The Arctic Law: Development Concept / Managing editor T.Ya. Khabrieva. Moscow, 2014.

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.

Vengerov A.B. Law and Information Under Conditions of Control Automation: Theoretical Issues. Moscow, 1978.

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

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

Adobe pdf 24  Полный текст статьи

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.

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