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Март 2024



Chief editor’s column



Interview of the issue


Topic of the issue

T.A. Vasilieva Naturalisation of Migrants: Current Trends
With the widespread recognition of the concept of human dignity and universal human rights standards, the rigid boundaries between the concept of citizen and alien are blurring. Many individuals reside outside the State of their citizenship on a long-term basis. Migrants cannot be viewed as a homogeneous community, but differ in terms of their states of origin, grounds, purposes and duration of stay, visa regimes, professional qualifications, and future migration plans. However, widespread transnational migration creates real problems for migrant receiving states due to the erosion of socio-cultural homogeneity of the population; an increase in the number of groups with different value systems living on the same territory; a fairly high proportion of migrants among those who break the law or are unemployed; the creation by some migrant communities of parallel economies, shadow social structures and the use of social norms of the country of origin in their relations. Rising tensions and clashes between migrants and natives are contributing to the tightening of state policies on migrant reception. Acquisition of citizenship is beginning to be more tightly coordinated with migration policy and considered in the light of social cohesion. The introduction of new criteria required for citizenship (linguistic, integration, economic) is largely oriented towards identifying culturally close economically self-sufficient migrants whose values are not particularly different from those shared by the majority in the host society. In the sphere of legal regulation, two factors significantly influence the level of naturalisation — the introduction of dual citizenship and the possibility of acquiring citizenship by birth on the territory of the country.
Keywords: transnational migration, citizenship, naturalisation, language test, integration test, economic self-sufficiency, dual citizenship
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A.V. Dzyubak, S.Yu. Chucha Legal Regulation of Labour Migration: Prospects for the Implementation of the Eastern Model
The concepts of regulating labour migration in Russia are retrospectively considered. A detailed description of the Kafala system underlying the regulation of labour migration in the countries of the Cooperation Council for the Arab States of the Persian Gulf is given. Promising principles of legal regulation of international labour migration in the Russian Federation are formulated. The conclusion is substantiated about the possibility of enshrining in national legislation and effectively using the policy, concept and individual elements of regulation of international labour migration in Arab countries.
Keywords: Kafala, migrants, work, protection of labour rights
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E.A. Malyshev Administrative and Legal Regulation of Migration Relations in the Field of External Labour Migration
The globalisation of factors of economic development, the development of world economic relations is manifested, in particular, in the formation of the international labour market, stimulating the growth of external labour migration. These processes fully affect Russia and sharply actualise the need to improve legal regulation, a new level of institutional interaction of public administration bodies at the federal and regional levels on the regulation of external labour migration flows. The necessity of developing the concept of external labour migration is proved, which requires a systematic approach based on the “reverse” dichotomous analysis, which makes it possible to consider external labour migration as a single socio-legal phenomenon consisting of relatively autonomous, but organically connected outbound and inbound labour migration flows. Ensuring the national interests of Russia involves the search for an effective administrative and legal mechanism for the implementation of state policy in the field of external labour migration, developing in the unity of closely related outbound and inbound labour migration flows. The imperfection of migration legislation in the field of external labour migration requires its codification, development and adoption of a separate federal law “On external labour migration”.
Keywords: migration legislation, migration policy, migration flow, external labour migration, migrant worker, public administration bodies, administrative and legal mechanism
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N.E. Taeva Legislation on Citizenship of the Russian Federation — Current Stage of Development
The aim of the article is to analyse the main directions of reforming the legislation on Russian citizenship in correlation with the objectives of migration policy of the Russian Federation. The author considers the necessity of overcoming geopolitical threats, integration of new subjects into the Russian Federation, protection of compatriots’ rights, solution of demographic problems, adaptation and integration of migrants into the Russian society as such tasks. It is concluded that the problems of regulation of citizenship issues have become more relevant in connection with the aggravated international situation. The article analyses the grounds for the acquisition and termination of Russian citizenship, enshrined in the Federal Law “On Citizenship of the Russian Federation” adopted in 2023, as well as in the decrees of the President of the Russian Federation adopted thereafter. The general trend that can be traced in the development of legislation on citizenship — the simplification of the procedure for its acquisition for natives of friendly countries, close to us in language, culture, traditions, along with the tightening of the requirements of legislation in respect of persons who pose a threat to national security and law and order of the Russian Federation — has been revealed.
Keywords: constitution, law, citizenship, migration, termination of citizenship, deprivation of citizenship, the principle of equal citizenship, geopolitics, migration policy, national security
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A.N. Zherebtsov Topical Issues of Intellectual Migration in the Russian Federation: Administrative and Legal Aspect
The article considers the intellectual migration: its composition, factors influencing its flow, and the problems of administrative and legal regulation within the Russian state migration policy. The author asserts that intellectual migration consists both of (a) educational emigration and immigration, and (b) emigration and immigration of scientific and pedagogical workers, so, this requires developing of a systematic approach to the state regulation, adjusting the concept of Russian state migration policy, providing administrative and legal support for its implementation. It is proposed to form a system of intellectual migration legal regimes covering educational migration and migration of scientific and pedagogical workers, since administrative and legal regulation of these flows is possible only within the framework of codification of Russian migration legislation.
Keywords: population migration, intellectual migration, educational migration, migration of scientific and pedagogical workers, migration flow, migration and legal regime, state migration policy
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Discussion Board

A.S. Ispolinov The Anatomy of the Crisis: Problems of the Subjective Legitimacy of the International Criminal Court
The article examines the issues of the subjective legitimacy of the International Criminal Court, which is understood as the perception of the court by States and the professional community, the accused and victims as a institution with the legitimate right to hear criminal cases within its competence. The current practice of the ICC is perceived as an aggravating crisis of its subjective legitimacy, which is expressed in the persistent perception of this court by a significant number of countries and now by almost the entire academic community as an unfair and biased, extremely problematic institution, rapidly dispelling the hopes and illusions that were associated with its creation. An important factor in the current crisis of confidence in the ICC is the court’s inability to assess the impact on its own legitimacy of the inconsistency and inconsistency of its judicial decisions, as well as the abundance of special opinions attached to them. Using the example of the decisions of the ICC Chambers in relation to Afghanistan and Myanmar, it is shown that such ICC practice creates the impression of arbitrary application of law by ICC judges, which undermines confidence in the judicial decisions taken and has a detrimental effect on their nonenforcement.
Keywords: International Criminal Court, subjective legitimacy, Afghanistan, dissenting opinions
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V.V. Tereshkova The Principle of Prior Informed Consent for the Use of Traditional Knowledge
Corporations make huge profits from the use of traditional indigenous knowledge, but the owners of this knowledge often receive no compensation. This is illustrated by litigation on biopiracy widely discussed in the foreign media. The author argues that the classical mechanisms for protecting intellectual property, which have proven to be effective, are not suitable for protecting the traditional knowledge of indigenous peoples. Transnational companies take advantage of gaps in the legal protection of traditional knowledge, patenting both their own production methods and methods of using plants in medicine, and registering traditional images of tribal peoples as their own designs. Protecting traditional knowledge of indigenous peoples requires the creation of new models of protection, a key element of which is obtaining the prior informed consent of the indigenous community to access and use traditional knowledge.
Keywords: Indigenous peoples, prior consent, shared benefits, sui generis, traditional knowledge
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Press Release


Judicial practice. Comments

M.L. Galperin, V.N. Kostsov Arbitration Scandal, Intrigue and Inquiry: Commentary on the judgement of the High Court of England and Wales in P&I Developments Limited vs Republic of Nigeria
The English court’s decision, which was published last year on 23 October, is described not merely as precedential but as historic in its impact. This decision is impactful not merely because it released the Nigerian state (the respondent in the arbitral award that was set aside by the English court) from the burden of paying a lion’s share of its forex reserves to a little known offshore entity, but also because this is perhaps the first case where suspicions about abusive procedural tactics and corruption during the arbitral proceedings became a self-sufficient ground to set aside a similar international arbitral award. This article uses the almost detective story that unfolded in this case as an opportunity to address broader issues of public policy, legal ethics and corruption in major international cases, to challenge the traditional understanding of adversarial proceedings and to address other problems that directly implicate the future of arbitration as a means of resolving investment disputes. These issues are also quite relevant for Russia considering the impending legal outcome in the long-running Yukos arbitration.
Keywords: investment arbitration, legal ethics, public policy, countering corruption
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Theory and practice

V.L. Tolstykh Nagorny Karabakh — 2023: Problems of International Legal Qualification
The Second Karabakh War of 2020, which ended with the defeat of the Nagorno-Karabakh Republic (NKR) and Armenia supporting it, reversed the balance of power but did not resolve the conflict. The absolute superiority of Azerbaijan — both military and political, the insufficient clarity of the Statement of 9 November, the remaining contradictions between the parties — all this created the preconditions for the Third War, which began on 19 September 2023 and lasted only one day. The eventual defeat of the NKR and the transfer of the entire region under Azerbaijani jurisdiction, however, does not appear to be the final point: Azerbaijan demands the eight occupied villages and insists on the extraterritoriality of the Zangezur corridor. This article continues an article published in 2021 and dedicated to the legal aspects of the 2020 conflict. The author describes developments after 2020; analyses the use of force and assesses new interpretations of Article 2(4) of the UN Charter; gives qualification to the blockade of the Lachin corridor and the Armenian exodus from Nagorno-Karabakh in autumn 2020; examines some aspects of the right to self-determination that became relevant in 2023; defines the remaining territorial disputes; and assesses the effectiveness of the settlement formats. In legal terms, the 2023 conflict significantly improved the position of Armenia and the Armenians of Nagorny Karabakh; in the final analysis, it can be argued that the blockade and the 19 September attack created the preconditions for a remedial secession, the realisation of which, however, is unrealistic. Some of the new qualifications are based on scientific hypotheses that reflect progressive trends in the development of law rather than being an established element of it. Politically, on the contrary, the conflict has seriously worsened Armenia’s situation. There are several scenarios for the development of events. The first assumes the satisfaction of all Azerbaijan’s claims and Armenia’s transition to a subordinate position; the second — modification of the status quo through compromise regimes built on the basis of mutual respect and equality; the third — restoration of the status quo as it existed or should have existed at the time of the collapse of the USSR. This scenario seems realistic and fair; its realisation, however, is impossible without the participation of external actors: Russia, Iran, Turkey, the West, the US and China. Unfortunately, the position of these actors is not consolidated, while the Caucasus is still perceived as a peripheral region unworthy of the attention paid to some other regions.
Keywords: international law, territorial disputes, international courts, right to self-determination, use of force in international relations, autonomy, right of transit
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D.V. Kozhemiakin, S.M. Mironova Antitrust Aspects of Digital Platform Operators in the Gig-Economy
The article analyses the current challenges for competition law due to the changing social relations in the context of the gig economy, the increasing impact of digital platforms on competition and the emergence of the phenomenon of platform work. The authors analyse the current approaches to anti-competitive practices by digital platforms as well as the provisions of the recently adopted Fifth Antitrust Package. The article points out that, despite the changes in the structure of employment and competition in digital markets, modern antitrust law still adheres to traditional approaches to assessing competition risks, based primarily on the impact of a monopolist’s behaviour on consumers and secondarily on its direct competitors. As a result, many unfair practices are in the blind spot of competition law, such as those related to platform work and the ability of a digital platform operator to control and coordinate the activities of a large number of formally independent sellers, contractors and performers.
Keywords: competition law, antimonopoly legislation, digital platforms, gig-economy, abuse of dominant position, unfair competition, fifth antimonopoly package
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A.S. Alfimova Interim Measures during Bidding in Bankruptcy Procedures
In Russia the number of bankruptcy cases remains at a consistently high level, while the vast majority of them are of a liquidation nature. Debtors’ property is massively sold at public bidding, the results of which are very difficult to challenge. So there is a need to use operational legal remedy — interim measures. Interim measures in bankruptcy cases are needed even more than in other cases, because they help to balance the many conflicting interests. The article contains analysis of measures that are applied by the antimonopoly authority and the court during bidding in bankruptcy. Also the author considers interim measures, which are provided during challenging bidding and distributing money received as a result of the sale of collateral. In addition, the article describes the consequences of a violation by the bankruptcy manager of interim measures and the possibility of compensation for losses caused by interim measures during bidding in bankruptcy. The author concludes that the skepticism of the legal community regarding the providing of interim measures during public bidding in bankruptcy cases is exaggerated, the courts are ready to apply them.
Keywords: bankruptcy, receivership, interim measures, public bidding, antimonopoly service
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A.V. Basharin Exchange of Land Plots of Different Ownership Forms
The article analyses the institute of exchange of land plots of different ownership forms that appeared in the Russian land legislation as a result of the 2015 reform. The author concludes that each of the cases of application of this institution will delay the realisation of certain public interests, representing a derogation from the general procedure for the sale of public property existing in the legislation through competitive procedures. The article demonstrates how the institute of land plot exchange is related to the eminent domain. It also suggests expanding the list of cases allowing the use of the land plot exchange institute in order to protect rights holders of land plots affected by the establishment of public legal restrictions on rights. In conclusion, a number of proposals for possible improvement of the current legislation are made, aimed at optimising the application of the institute of land exchange.
Keywords: land exchange, eminent domain, infrastructure, planning documentation, element of planning structure
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V.V. Arkhipov, I.Yu. Kozlikhin What is Law? Considering the Threat of Legal Chimeras through the Prism of the History of Legal and Political Doctrines
If distinguishing of the Saint Petersburg school of theory and philosophy of law is possible, then its centre will essentially be the reliance on the idea of modern academic research as a phenomenon belonging to post-classical scientific rationality, as well as the accompanying desire to use interdisciplinary methodology in scientific research. Such approaches have from time to time met and continue to meet misunderstanding from some points of view, coupled with a reference to the inadmissibility of introducing legal chimeras. In this article, the authors suggest adhering to an approach that, with a number of reservations, belongs to the philosophy and methodology of common sense, which implies a cautious attitude towards excessive critical aspirations, recalling the importance of paying attention to all positions that meet the minimum procedural criteria of academic consistence, not seeking to “understand too fast”, attempts to find a rational grain and explain why the author adheres to such a concept instead of trying to criticize another view right away and avoiding labeling. The study of the material of the history of legal and political doctrines, according to the authors, indicates the need for a balanced attitude to different points of view, mainly because the principal “users” of law are not scholars themselves, but members of society, not always having specialised knowledge in the field of law, although this consideration, of course, does not deprive academic legal knowledge of its value.
Keywords: theory of law, philosophy of law, methodology of legal science, St. Petersburg school, history of legal and political doctrines, common sense
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